1935   Present  : Akbar J. and Koch A.J.

DEUTROM v. DEUTROM et. al.

 63-D. C. Colombo, 54,544.

Paulian action-Maintenance order in favour of wife-Distress warrant in execution against the husband-Fraudulent transfer of mortgage bond by the husband to avoid payment-Paulian action by wife-No cause of action.

Where the plaintiff instituted a Paulian action to set aside the assignment of two mortgage bonds by the first defendant in favour of the second defendant in order to levy execution against them under a distress warrant issued against the first defendant (plaintiff's husband) under the Maintenance Ordinance,-

Held, that the plaintiff had no cause of action as the assets represented by the mortgage bonds could not have been levied in execution of the order for maintenance in her favour.

THIS was an action instituted by the plaintiff, wife of the first defendant, to have a deed of assignment of two mortgage bonds by the first defendant in favour of the second defendant set aside as being void in fraud of creditors.

Plaintiff instituted maintenance proceedings against the first defendant and obtained an order and on March 7, 1933, notice was served on the first defendant to show cause why a distress warrant should not be issued against him for the recovery of arrears of maintenance. On March 11, 1933, the first defendant assigned his interests in two mortgage bonds to the second defendant.

The learned District Judge gave judgment for the plaintiff, holding that the deed of assignment was executed in fraud of creditors.

H. V. Perera (with him D. W. Fernando and G. E. Chitty), for second defendant, appellant.-The plaintiff in this case is not a creditor in the sense that she would be entitled to bring a Paulian action. She has merely an order for maintenance in her favour against the first defendant. A liability for maintenance is not a civil liability (Menikhamy v. Loku Appu [1 1 Balashigham's Reports 161]).

She cannot assign the order for maintenance to a third party nor can she execute it against the first defendant except as provided by the Maintenance Ordinance, No. 19 of 1889. Section 9 empowers a Magistrate in the event of a breach of an order for maintenance to issue a warrant directing the amount due to be levied in the manner by law provided for levying fines by Police Magistrates in the Police Courts. Section 312 (2) of the Criminal Procedure Code provides for the recovery of fines by " distress and sale" of any movable property of the offender. Distress can only be levied on property title to which can pass by delivery. (See definition of " Distress" in Bell's Legal Dictionary.) The deed sought to be set aside is a deed of assignment of two mortgage bonds. A mortgage bond is a chose in action and cannot therefore be distrained and sold. (See B. Mutoscope Co. v. Homer [2 (1901) 1 Ch. D. 671.]) A creditor who is entitled to bring a Paulian action must be one who is prejudiced by .the alienation (Punchi Menika v. Dingiri Menika [3 3C. A. C. 93.]). Further, he must satisfy the Court that the property fraudulently alienated was available to him for execution against the debtor (Fernando v. Fernando [4 C. W. R. 143.]). The plaintiff in this case is not prejudiced by the assignment of the bonds nor were the bonds available to her for execution against the first defendant. Even if the assignment is set aside the plaintiff cannot seize the interest of the first defendant on the two bonds. The decree in a Paulian action made a fraudulent deed void only so far as it was necessary to make the property available for execution (Banda v. Perera [5 30 N. L. R. 355.]).

H. E. Garvin (with him S. Alles), for plaintiff, respondent.-The plaintiff is prejudiced by the assignment of the mortgage bonds. A mortgage bond is a movable which can be distrained and sold. The arrears of maintenance amounts to a large sum of money. It may be possible for the pl