(COURT OF APPEAL)*

SIJLIMAN FRIGON v. GOLABSHAND LAFSHANI

AC-REV-465-1966

 Principles

·  Civil Procedure—Judgment debt—imprisonment for non-payment—Civil Justice Ordinance, s. 198 (2) (b)—Judgment debtor knowing himself to be unable to pay his decretal debt, recklessly contracted other debts

In order to justify sending a judgment debtor to prison for non-payment of money in execution of decree under Civil Justice Ordinance, s. i98 (2) (b); it must be proved that the judgment debtor knowing himself to be unable to pay his decretal debts in full, recklessly contracted other debts or gave unfair preference to any of his creditors after the decree, the subject-matter of the execution, had been passed against him.

Judgment

Advocates: Mahdi Sharif . . . . . . . . . . . . . . for applicant

Abdel Rahirn Baydawi . . . . . . . . . . . . . . for respondent

El Fatih Awouda I. May 15, 1967: —This application fails.

Respondent is a judgment debtor in Omdurman Ext-Ex-82- the value of which is £S.3, 602.660m/ms. less £S.5.900m/ms. representing proceeds of sale of certain chattels which were ordered to be sold by the court. Having no other property to be attached and sold the decree holder by his advocate applied to the District Judge to the have judgment debtor examined as to his ability to pay under Civil Justice Ordinance, s. 198. During that examination it transpired that the origin of the debt is the value of two cheques, which were countermanded by judgment debtor who was the drawer thereof. The learned District judge ruled that what the judgment debtor did amounted to bad conduct and that he, knowing himself unable to pay his debts in full, negligently contracted the debt the subject-matter of the execution which in his opinion, warranted sending him to prison for five months under paragraph (b) of subsection (2) of the section aforementioned.

His Honour the Province Judge on revision set aside that order and directed the District Judge to ask the parties to prove the existence of any of the circumstances mentioned in section 198. He further held that it was essential for applicant to prove the circumstances in which the debt had originated and that should be taken into consideration in deciding whether to commit a judgment debtor to prison.

In his application to this court advocate for applicant maintains that in order to justify sending a judgment debtor to prison under paragraph (b) of subsection (2) t will be sufficient for the decree holder to show, without anything more, how the debt originated which might indicate that there was an element of bad faith on the part of the judgment debtor at the time the debt was contracted; and in this particular execution the origin of the debt was two cheques of considerable value and respondent at the time of contracting it well knew that he would not be able to pay it.

I am unable to agree to the opinion of the courts below nor to what the learned advocate maintains. Paragraph (b) of subsection (2) cannot be singled out from the whole text of the section and read in such a manner as to cover events and circumstances antecedent to the judgment. Linked together subsection (2) and paragraph (b) read as follows:

“If it appears to the court by examination of the judgment debtor or other evidence

(b) That he has, knowing himself to be unable to pay his debts in full negligently contracted debts

The pronoun “he” refers back to “judgment debtor” spoken of in sub section (2) and a debtor does not become a judgment debtor until after a decree for the payment of money has been passed against him and remains wholly or in part unsatisfied. If we assume that paragraph (b) is intended to punish for conduct antecedent to a decree or even prior to institution of the suit as the learned District Judge and the advocate seem to suggest we will be giving the paragraph a scope of operation wider than its wording permits.

The learned District Judge, in support of his argument cites a quotation from Sir Charles Cummings commenting on section 198 which he does not seem to have understood correctly. It runs as follows:

“No honest judgment debtor should be imprisoned. Only those who commit a contempt of court by willfully refusing to obey its decree or being in bad faith or in fraud of the court or creditors or evading the power of the court. It is essentially a punishment for bad con duct not a screw to be put on for payment.”

It cannot be appreciated how a judgment debtor would be committing a contempt of court at a time when the order of the court which it is alleged he has violated was not in existence. It is quite evident that the ex-legal secretary was speaking of conduct subsequent to the judgment and acts of bad faith before the judgment and after institution of the suit within paragraph (C) of the section.

It might be of interest to note an opinion in contra-distinction to that of Sir Charles Cummings on the object of sending a judgment debtor to prison, in an old judgment. Omer El Tiney v. Mursi Zeidan, AC-APP-29- 1919, Dun C.J. commenting on Civil Justice Ordinance, 1900, S. 12f, which was substantial the same as the present section 198—paragraph (b) exactly the same—said

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.”

In my view a combination of both opinions is for practical purposes the intended object of committal of a judgment debtor. By willfully refusing to obey the decree of the court the judgment debtor commits a contempt of court and for that he is sent to prison until he purges his contempt, subject to section 199, and that is by paying the debt, which in effect is a pressure on him to pay.

To sum up, in order to justify sending a judgment debtor to prison under Civil Justice Ordinance, s. 198 (2) (b), it must be shown that, he, knowing himself to be unable to pay his debts in full has recklessly contracted debts or given unfair preference to any of his creditors after the decree the subject-matter of the execution, has been passed against him. This has to be shown either upon the examination of the judgment debtor or on evidence adduced by the decree holder for the purpose.

This application is dismissed with costs.

Osman El T J. May 15, 1967: - I agree.

Babiker Awadalla C.J. May 15 1967: —I agree. I cannot see how paragraph (b) of sub-section (2) of section 198, can apply when there is only one single debt, viz., the decretal debt. The provision in my view postulates the existence of other debts than the decretal debt, the incurring of which had impeded satisfaction of the decree in full.