Shell Transport Company V. Dissanayake

Present: Bertram C. J. and Garvin J.

SHELL TRANSPORT COMPANY v. DISSANAYAKE.

160-D. C. (Inty. ), Colombo, 10, 753.

Civil warrant-Application for writ-Appeal pending-Stay of execution -Notice to judgment-debtor of application for warrant-Civil Procedure Code, s. 763.

Where an application for the execution of a money decree had been granted, and the Fiscal had made a return of "no property, " a warrant for the arrest of the judgment-debtor may be issued without notice to him.

It is not competent to a Court to refuse a warrant for the arrest of a judgment-debtor merely on the ground that the latter has preferred an appeal against the decree.

APPEAL from an order of the District Judge of Colombo disallowing an application for a warrant of arrest of a judgment-debtor. The plaintiff, appellant, obtained judgment on July 30, 1924. On the following day he applied for execution of the decree, and a writ was issued to the Fiscal. To this writ the Fiscal made a return dated August 22, 1924, that he was unable to.

find any property of the judgment-debtor. In the interval between. the issue of the writ and the return, the defendant entered an appeal against the judgment. On August 28 an application was made for the issue of a warrant, which was refused apparently on the ground that an appeal had been preferred against the decree.

Choksy, for plaintiff, appellant.

November 28, 1924. Bertram C. J. -

I agree with the judgment of my brother Garvin. The question to be decided is by no means free from difficulty. Section 763 says that in the case of an application being made by the judgment-creditor for execution of a decree which is appealed against, the judgment-debtor shall be made respondent. The question, therefore, arises, Is an application under section 298 by way of petition for the arrest of a debtor an application for the execution of a decree? It is undoubtedly the case that arrest is a form of execution, and the Code freely refers to arrest as being ordered in execution of a decree. See section 298 itself, " the arrest or imprisonment of a woman in execution of a money decree "; " the decree or order in execution of which he is arrested, " section 298; " warrant for the arrest of a judgment-debtor in execution of a decree, " section 298; " arrest in execution of a decree for money, section 300. Further, in section 224 itself, which deals with " the application for execution of the decree, " it is required that the application shall contain the following particulars, " the mode in which the assistance of the Court is required whether.. by the arrest and imprisonment of the person named in the application. " On the face of these words in section 224, it is very difficult at first sight not to conclude that an application under section 298 is an application for the execution of a decree.

It is impossible to harmonize with exactness the various provisions of the Code on this subject. If we proceed from section 224 to section 225, we find that the only form of execution there contemplated is an execution by sale of property; neither that nor any other immediately succeeding sections make any provision for execution by arrest. This subject is only reached in section 298, and it appears there that an application for an arrest is necessarily a supplemental process, and cannot be entertained until a writ for the seizure and sale of property has already issued.

There are in fact two forms of application for execution of a decree: The first is the initial or general application, which is primarily that which is contemplated in section 224, and the second is a supplemental application, when the writ issued in pursuance of| the original application has proved, or is likely to prove, ineffective.:

I agree with my brother Garvin that if the terms of section 763, are carefully examined, it is necessary to hold that in the, context in which the words are u

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