1916 Present : Schneider A.J.

NADAR v. NADAR.

292-C. R. Chilaw, 16,726.

Warrant for arrest of judgment-debtor-Issued before writ of execution against property was issued-Civil Procedure Code, s. 298.

A warrant in execution of a decree cannot issue unless a writ against property had issued previously.

THE facts are set out in the judgment.

C. H. Z. Fernando, for defendant, appellant.-The case is covered by authority. It was held in several cases that a writ cannot be issued against the person before writ is issued against property. See Soysa v. Soysa;2 Meera Saibo v. Samaranayaka;3 Sinnapper v. Veerapodi;4 Costa v. Perera.5

Balasingham, for plaintiff, respondent.-The words in section 298 of the Civil Procedure Code " if before the return to the writ of
 
2 (1892) 1 S. C. R. 28.
3 (1896) 1 N. L .R 342.
4 (1898) 3 N. L .R 254.
5 (1913) 17 N. L .R 319.

execution " indicate only a point of time. A plaintiff may obtain warrant of arrest before judgment on the ground set out in section 298 (d). It would be strange, indeed, if the law is that after judgment he cannot apply for warrant of arrest against his judgment-debtor before first applying for a writ against property. What use would it be to apply for writ against property if the debtor is about to leave the Island and there is no property to the knowledge of the creditor which could be seized.

The cases cited do not apply to the facts of this case. The reason for the decision in Meera Saibo v. Samaranayaka1 was that the writ against property itself was wrongly issued. If a writ cannot be issued against property for want of due diligence, clearly writ against person cannot issue at all. If it were issued, it would be illegal.

The ground for the decision in Sinnapper v. Veerapodi2 was the same; it was held that the writ against person was ancillary to the writ against property; or, in other words, where no writ could have issued against property, the writ which was issued against the person was illegal. It is not the same thing as saying that writ cannot issue against person unless writ is first issued against property.

The judgment in Soysa v. Soysa3 is clearly wrong. See the comments of Bonser C. J. in 3 N. L. R. 255.

The judgment in Costa v. Perera4 merely decides that before a warrant of arrest is issued the provisions of section 298 should be complied with.

It is no authority for the contention that unless a writ against property is issued warrant of arrest cannot be issued.

Cur. adv. vult.

October 6, 1916. SCHNEIDER A.J.-

Of consent decree was entered on June 24, 1915, that the defendant should pay the plaintiff Rs. 200 in two equal instalments, one on June 24, 1915, the other on August 24, 1915. If the first instalment was not duly paid, " writ " was to be issued for the whole amount. The defendant paid nothing. On August 4, 1916, the plaintiff filed petition and affidavit alleging that the defendant was " about to leave the Island under circumstances affording reasonable probability that the judgment-debtor will thereby be obstructed or delayed in the execution of the decree," and prayed for a warrant of arrest. The words of the petition which I have quoted lead to the inference that the application was intended to be under section 298 (d) of the Civil Procedure Code, but it was not expressly so stated in the petition, but the motion stated that the application was under section 298. It is not disputed that this was the first and only application for execution of the decree. The motion was

1 (1896) 1 N. L. R. 342.                                           3 (1892) 1 S. C. R. 28.
2 (1898) 3 N. L. R. 254.                                           4 (1913) 17 N. L. R. 319.

allowed, a warrant issued, and the defendant was arrested and produced before the Court on August 14, 1916. He stated that he
could not pay the amount, and was committed to jail.

On the next day Mr. Proctor Fernando, who was th