Present: Schneider J.

SILVA v, APPUHAMY et al.

522-P. G. Gampola, 11,954.

    Vehicles Ordinance-Distress warrant for non-payment of hire-Neglect or refusal to pay-Wrongful issue of warrant-Magistrate's power-Irregular affidavit-Ordinance No. 4 of 1916, s. 49.

A distress warrant to recover payment of a sum due for the hire of a vehicle can issue under section 49 of the Vehicles Ordinance only upon the refusal or neglect of the defaulter to pay the sum after it has been awarded by the Court.

A Magistrate has power to recall a warrant that has been irregularly issued.

APPEAL from an order made by the Police Magistrate of Gampola.

The proceedings in the case were initiated by an affidavit from a person who styled himself complainant. Three persons were named as accused in the caption to the affidavit, which stated that a sum of Rs. 194 was due to the complainant for the hire of a vehicle to the accused who had failed and neglected to pay the sum. On the affidavit being filed, the Magistrate directed the issue of a distress warrant returnable on August 27, 1925,

On August 18 a Proctor filed an affidavit from the first accused to the effect that he had received information of the issue of the warrant but had no notice of the proceedings. The Proctor moved for the recall of the warrant which the Magistrate disallowed.

N. K. Choksy, for accused, appellant.

September 28, 1925. SCHNEIDER J.

The question raised by this appeal is of great practical importance and calls for careful consideration. The proceedings in the case appear to have been initiated by an affidavit by one Silva who styles himself "complainant" and three persons "accused" in the caption of the affidavit. It is to the effect that a balance sum of Rs. 194 was due to the complainant for the hire of a vehicle to the accused and that the accused had failed and neglected to pay that sum. There is nothing to show how this affidavit came on the record, or what the court was invited to do. The date of the affidavit is August 13, 1925. An entry by the Magistrate on the same date at the bottom of the affidavit shows that Mr. Jonklaas had appeared for the complainant and that the Magistrate had directed the issue of a distress warrant returnable on August 27. The warrant appears to have been issued on the very day the Magistrate made his order. The affidavit is headed " In the Police Court of Gampola," but there is no indication that an application was made under some special provision of the law. It seems to me desirable that in special applications of this kind the caption should indicate under what special law or rule the application is being made. In this case the caption of the affidavit should have been "In the matter of the application of A B under the provisions of section 49 of the Vehicles Ordinance, No. 4 of 1916. The preceedings are intended to be under section 49 of the Vehicles Ordinance, No. 4 of 1916. Before proceeding to consider the provisions of that section I would follow the history of the case. On August 18 a Proctor filed an affidavit from the first accused to the effect that he had received information of the issue of the warrant, and that he had no notice of the proceedings and had a " valid defence to the charge." The Proctor moved for the recall of the warrant, and an inquiry. The Magistrate disallowed this motion stating that he did not know " under what section the application was made." On August 24 the accused's Proctor filed a petition of appeal against the order of the Magistrate, and once again moved that the court would be pleased to withdraw the warrant pending " the decision of the appeal. On this occasion the Magistrate heard the appellant's Proctor who appears to have argued that the recovery of a fine is suspended by an appeal and so the warrant should also be suspended. The Magistrate refused to order the recall of the warrant. The petition of appeal is in th