Execution-Imprisonment of ;udgment debtor-Whether conduct prior to the
entry of ;udgment may be a basis for imprisonment

The decree holder applied for examination of the judgement debtor
under section 129, Civil Justice Ordinance in respect of certain conduct of
the latter prior to the judgment. The High Court refused this application
on the ground that section 129 applies only to events subsequent to the
judgment. The decree holder appealed.

Held: (i) Section 129, Civil Justice Ordinance 1900 was not intended
to be restricted to events subsequent to the judgement.

(ii) The civil remedy provided by section 129 against a defaulting
judgment debtor does not cease to operate merely because a crime may
have been committed under section 171 of the Sudan Penal Code 1899.

(iii) That the Bankruptcy Ordinance was not intended to supersede
section 129 of the Civil Justice Ordinance.

Civil Justice Ordinance 1900, s. 129.

Sudan Penal Code 1899, s. 171.

• Court: R. H. Dun C.J., F. P. Osborne J.nppeal

June 25, 1919. Dun C.J.: We are both agreed, as to the inter-
pretation to be put on section' 129¹ of the Civil Justice Ordinance.

By section 125²• C.J.O. the arrest and imprisonment of the
judgment debtor is in certain cases one of the modes of execution
of a decree for the payment of money: but it does not by itself operate
to transfer money from the judgment debtor to the decree holder; it
only puts pressure on the judgment debtor and possibly his friends
to satisfy .the debt in whole or in part. Therefore, it does not seem
to me to be at all necessary to limit the description of the circumstances
in which this mode of execution can be used to events subsequent

1 Section 129, C.J.O. 1900 provides.

( 1) Where a decree for the payment of money remains wholly or
in part unsatislied, the court may, upon the application of the decree holder,
summon the judgment debtor to be examined as to his ability to pay.
(2) If it appears to the Court by examination of the judgment debtor
or other evidence-

(.a) That the judgment debtor then has, or, since the making of the decree,
has had sufficient means to pay the money directed to be paid by him,
and he refuses or neglects to pay the same according to the order; or
(b) That he has, knowing himself to be unable to pay his debts in full,

recklessly contracted debts or given an unfair preference to any of·
his creditors by any' payment or disposition of his property, or

(c) That he has committed any other act of bad faith regardin~ the
matter of the application, then and in such case the court may if
thinks lit commit him to prison for any time not exceeding three
months and may issue its warrant accordingly.

(3) The order on the ground in which was made must be recorded
in the minutes."

See section 198, C.J.O. 1929.

2 Section 125 C.J.O. 1900 'provides:

"Execution of a decree for the payment of menoy shall be-

(a) by seizure and sale of the' judgment debtor's goods or other movable
property; or

(b) by attachment of debts due to the judgment debtor; or

( c) in certain cases by sale of the judgment debtor's land or other iIil·

movable property; or

(d) in certain cases by arresting and imprisoning the judgment debtor; or

                ( e) by one or more of these processes."                    

See Section 191, C.J.O. 1.929.

to the judgment. A man may anticipate the making of a decree
against himself and by unfair preference of other creditors or by acts
of bad faith make the other modes of execution valueless to his
opponent.

Turning to section 129 (i), I find nothing there to limit the
application of subsection (ii): it provides that if the debt is unpaid
the judgment debtor may be summoned and examined as to his ability
to pay.

Subsection (ii) provides that if anyone of three sets of circum-
stances appears to the court to exist it may commit the judgment
debtor to prison.

The first set of circumstances described in para (a) is expressly
limited to events occurring after the judgment, the other two sets of
circumstances are not expressly limited in that way and this seems
to me to be a strong argument for saying that they are not intended
to be so limited.

It was argued that the words in para (c) "regarding the matter
of the application" limited this para to events happening after the
judgment: I do not agree. The "application" may be the application
for examination of the debtor as to his means, or it may be the
application for his commital or it may be the application for the
enforcement of the judgment, but I am inclined to think that the words
are used with a more general intention, namely, that the acts of bad
faith shall in some way affect the relation between the parties to the
action arid the ability of the one to obtain satisfaction of his just
claim from the other. But whatever the interpretation of these words,
I do not think they "restrict the operation of paras (b) and (c) to
events subsequent to the judgment. .

It was argued that paragraphs (b) and (c) of subsection (ii)
of section 129, C.J.O. could not apply except to events happening
after judgment. because generally speaking there is a remedy available
by criminal proceedings under section 171 \ S.P.C., but the purposes

1 Section 171, Sudan Penal Code 1899 reads:

"Whoever with intriit to prevent any property of himself or any other
person, or any interest therein, from being taken as a forfeiture or in
satisfaction of a fjn'J, under a sentence which has been pronounced, or
which he knows. to be likely to be pronounced, by a Court of Justice or
other competent authority,

Or from being distributed according to law amongst the creditors of
himself or such other person,