SINNAPPAR v VEERAPODI et. al

SINNAPPAR v VEERAPODI et. al,

D. C., Batticaloa, 21,434.

 

Old decree-Application for execution against property-Civil Procedure Code, 8. 298-Issue of writ of execution against person before return of writ against property-Recall of writ against person-. Effect of order of Supreme Court wade per incuriam.

Section 208 of the Civil Procedure Code does not mean that a writ of execution against the person of the judgment-debtor cannot be issued before a return to the writ against property has been made.

It is competent to the District Court to issue a warrant for the arrest of the judgment-debtor, if before the return to the writ against his property the Court is satisfied that one of the cases (a), (6), (c), and (d) mentioned in section 298 had occurred.

Where a decree was signed in 18S0 and several applications against the property of the debtor were allowed without resulting in satisfaction of the decree, and after an interval of many years a fresh application for the issue of a writ against property was made in 1897 and the District Court refused it; and where the Supreme Court per incuriam set aside that order and allowed writ against property to issue, on the assumption that the original decree was signed in 1893 and revived in later times, whereas in truth it was signed in 1880 and had not been revived for several years; and where the writ allowed by the Supreme Court was made returnable on 18th June. 1898, but before the return was made the execution-creditor applied for and obtained from the District Court under section 298 a writ against the person of the judgment -debtor; and where the debtor applied to the Court for a recall of that writ and his motion was allowed-

Held, that the order recalling the writ against person was good; that the writ against property should not have issued; and the writ against person, which was ancillary to the writ against property, ought not to issue.

Held, further, that, though the Supreme Court had by its order of 13th July, 1897. directed the issue of the writ against property, such order having been made per incuriam made no difference in principle.

Soysa v. Soysa (1 S. C. R. 29) overruled.

THIS was an appeal against. an order made by the District - Judge of Batticaloa recalling a writ of execution against the person of the respondent under the following circumstances.

The decree was signed in 1880. Several applications for execution were made and granted, which, however, did not result in satisfaction of the decree. After the Civil Procedure Code of 1889 came into operation a further application for execution against property was made and allowed. No steps were taken to enforce that execution, owing, it was stated, to the judgment-debtor having requested the forbearance of the execution-creditor. In 1897 a fresh application for the issue of a writ against property was

made, which was refused by the District Court, and the execution-creditor appealed to the Supreme Court. The execution-debtor did not appear in appeal. The Supreme Court reversed the decision of the District Court and ordered the writ to issue. The writ was accordingly issued, returnable on the 18th June, 1898. Before the return to the writ was made the execution-creditor applied under section 298 for the issue of a writ against the person of the execution-debtor, and having satisfied the Court that one of the cases (a), (6), (c), and (d) mentioned in that section had occurred, the Court allowed a writ of execution against the person of the debtor. Before that writ was executed the debtor applied to the District Court to recall its order, and the District Judge having allowed the motion, plaintiff preferred this appeal.

Wendt, for appellant.

Dornhorst (with Sampayo), for respondent.

28th September, 1898. Bonser. C.J. (after setting forth the facts material to the present? appeal):--

I am of opinion that the order of the District Judge

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