VEERASAMY v. TAMBIPILLAI.

VEERASAMY v. TAMBIPILLAI.

D. C, Jaffna, 23,331,

Writ of execution-Motion to re-issue-Defence of debtor that his creditor has not used due diligence in procuring satisfaction upon previous issue of writ.

Where an execution-creditor moved for re-issue of writ after an interval of six years, averring that at the time the writ was previously issued the Fiscal had reported the debtor not to be possessed of any property, but that now he owned property, and where the debtor resisted the motion on the ground that soon after the writ was issued he had paid and settled the amount of the writ, and where on the day fixed for the hearing of the case he, without proving payment, raised the defence that his creditor had not used due diligence in procuring complete satisfaction, held that the latter defence was not open to him.

Per Withers, J.-A judgment creditor is not the less entitled to be paid his judgment debt because his debtor defers payment as long as possible.

Per Lawrie, J,-The two defences of payment and want of due diligence in procuring satisfaction of writ, set up by the execution-debtor, are contradictory. If he fails to prove payment, writ should re-issue.

ON the 2nd July, 1891, plaintiff obtained a decree against the defendant far Rs. 1,500 and took out execution on 12th August following, but as he was unable to point out any property belonging to defendant for seizure, the writ was returned unexecuted. On the 11th January, 1897, plaintiff moved for re-issue of the writ, alleging on oath that he had exercised all reasonable diligence to have the writ executed, but that he was unable to find any property of the defendant; and that now the defendant had acquired property on which a levy could be made. The defendant, on the other hand, averred that he had paid and settled the amount of the writ soon after it was first issued.

After hearing the parties the District Judge recorded as follows: -

" Mr. Advocate Allegakoon, for defendant, objects that due diligence was not used on the previous occasion to procure complete satisfaction of the decree, and that the execution was not stayed by the decree-holder at the request of the judgment-debtor.

"Mr, Advocate Kanakasabhai, for plaintiff, states that the steps provided for by section 219 of the Civil Procedure Code were not taken by the plaintiff for the reason that the defendant had no property, and that he only became the owner of property on 13th November, 1896; that therefore the only question for the Court to decide is whether the defendant had or had not between

1892 and 1896 any property, in support of which it is asserted that writ against the defendant's person was issued in October, 1892, in case No. 21,905 of this Court, in consequence of the Fiscal having reported that he was not possessed of any property.

It does not appear that the defendant was arrested, and it must therefore be presumed that the claim was paid, as indeed the Fiscal's return shows. However this may be, it does not concern this Court now whether the defendant was or was not possessed of property. Nor am I prepared to listen to evidence on that point, though Mr. Kanakasabhai offers to call witnesses in support of the contention.

" The time to establish that fact was whilst the first writ was in the hands of the Fiscal, and the manner of establishing it was by examination on oath or affirmation of the defendant as provided by section 219 of the Civil Procedure Code.

" The application is therefore refused with costs.

" The fact that property was only subsequently acquired by the defendant would have been relevant, and important to establish by way of explaining the delay between 1892 and 1897 in applying for fresh writ, had the steps provided for in section 219 been taken on the first application, but they are useless now in the absence of those steps. A second application would have been refused even if made between August and December, 1

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