1938 Present: Maartensz and Hearne JJ.

CADER v. JOONOOS et al.

201-D. C. Colombo, 47,499.

Execution of writ-Demand for payment of debt by Fiscal-Judgment-debtor's place of residence-Civil Procedure, s. 226.
 
Where section 226 of the Civil Procedure directs the Fiscal to repair to the judgment-debtor's dwelling house or place of residence and to require him to pay the amount of the writ, there is a compliance with the provisions of the section if he repairs to the place or residence disclosed by the judgment-debtor himself.

APPEAL from an order of the District Judge of Colombo.

C. Thiagalingam (with him Mahroof ), for appellant.

N. Nadarajah (with him S. J. V. Chelvanayagam), for respondent.

Cur. adv. Vult

February 21,1938. Maartensz J.-

This is an appeal by a purchaser at a sale in execution from an order of the District Judge of Colombo, setting aside the sale on the ground that the Fiscal's Officer did not repair to the dwelling house or residence of the judgment-debtor and require him to pay the amount of the writ before proceeding to execute it as required by section 226 of the Civil Procedure Code.

The judgment-debtor was the second plaintiff in the action against whom an order for costs had been made. It appears from the evidence that the Fiscal's Officer entrusted with the execution of the writ went to the address given by him in his plaint-No. 12, Peer Saibo's lane (now No. 71)-to demand payment of the writ but did not find him there and proceeded to the execution of the writ.
 
The District Judge has accepted the evidence led by the judgment-debtor that at the time in question he was not living at No. 12 but at No. 71, Peer Saibo's lane. I am not prepared to interfere with the finding of fact.

There is no evidence, however, that the judgment-debtor informed the Court or the judgment-creditor, the defendant, that he had changed his place of residence. The appellant's Counsel accordingly contended that the Fiscal's Officer had complied with the provisions of section 226 and that he was not bound to search for the judgment-debtor anywhere else before executing the writ.

The point has never been raised before and is not covered by authority. It is a provision peculiar to the. Code adapted from the old rules and orders and there are no Indian or English decisions to assist us.

The section requires that the request for payment should be made at the debtors' dwelling house or place of residence. The words are ?and there require him, if present, to pay the amount of the writ". Strictly construed, if the Fiscal's Officer met the judgment-debtor anywhere else and demanded payment, it would not be a compliance with the section. The debtor may therefore avoid execution of the writ by continually changing his place of abode. I am, therefore, of opinion that, in the absence of any information given to the Court of a change of residence, it would be sufficient compliance with the terms of the section if the Fiscal's Officer went to the place of residence mentioned by the debtor in the plaint or answer. This view is consistent with the earlier provision in the section that the Fiscal or other officer should repair to the house of the debtor within the time prescribed in the section. The officer obviously could not comply with this provision unless the judgment-debtor's place of abode had been ascertained at the time the Fiscal received the writ of execution. In this case that place of residence is the one mentioned by the second plaintiff in his plaint.

As I am of opinion that the requirements of section 226 had been complied with, the other questions argued by appellant need not be discussed.
 
I would set aside the order appealed from. The second plaintiff-respondent will pay the appellant the costs of appeal. The District Judge allowed the second plaintiff Rs. 52. 50 as his costs of the inquiry. The appellant will be entitled to recov