Execution, what?

Three modes of execution.

CHAPTER VIII.

DISTRICT COURTS.-EXECUTION.*

EXECUTION is the legal term to denote the writ which a court grants to a party, to satisfy any judgment which may have been recovered against the adverse party, whether by putting him in possession of land, or by realizing the sum of money awarded to him, or by any other mode which the terms of the judgment may render necessary. (Marshall, 159.)

It is in the discretion of the District Court to grant execution in any one of three modes.

1. Simple process against property.

2. Simple process against the person.

3. Compound process, consisting of a writ against property, and a writ against the person.

In which case the writ against property must be executed first, and the writ against the person must be executed only when the writ against property has been tried and found to be insufficient to procure prompt satisfaction. (21310, D. C. Galle, 30 June, 1864; and R. and O. 11th July, 1840, R. 4, p. 123.)

In this chapter, the words "fiscal, &c." mean, "the fiscal, his deputy, or officer acting under his authority."

The granting or withholding the twofold execution is discretionary, in the first instance, in the District Judge; subject, of course, to appeal to the Supreme Court as to the exercise of that discretion. (Marshall, 159.)

Writs of possession (to put parties in possession of land, or trees, &c.) are in truth writs against property, and must be treated as such. (Marshall, 159.)

execution.

Execution may be issued for the balance of a sum Further decreed, and the forms may be altered to meet that case. (Marshall, 159.) And, similarly, a creditor may proceed against property, although he has previously gone against the person of his debtor. (11608-11717, D. C. Batticaloa, 20 Marshall, 1854.) Where compound process has been granted, if the writ against property is in force and unsatisfied, no rule is necessary before issuing the writ against the person and if the writ against the person has been executed, and the prisoner is let go, or escapes, he may be re-arrested under fresh writs, until the debt is satisfied, or he be discharged by insolvent process. (62, D. C. Colombo, 23 Dec. 1854.)

how renewed.

If no execution is taken out within twelve months Stale writs, after judgment, it must not issue without a previous rule on the opposite party to show any cause he may have against its issuing. (R. and O. Sect. 1, R. 35. p. 69.) And if a year expire after one writ sued out, another rule must issue.

When judgment is obtained against husband and Execution and against wife, execution can issue against both the person and married property of the husband, and against the property, but

persons.

Execution in the case of paupers.

In the case of conflicting suits.

Execution in other districts.

not against the person, of the wife during coverture. (4086, D. C. Batticaloa, 24th Apr. 1839; Morg. D. 271.) Also, where the law admits such an absolute and distinct separation of interest and property between husband and wife that the wife can sue the husband, she can obtain execution against his property, but not against his person. (Marshall, 160.)

Where a party obtains judgment in formá pauperis, execution should be issued without a stamp; because, until execution is productive, the pauper must be supposed to have no more means to pay the costs than before judgment recovered. (Marshall,161.) Execution may issue against the person of a pauper for costs. (See "Costs.") Where there have been two suits between the same parties, respecting the same object, and the decrees are conflicting with each other, the decree prior in date has the preference, without reference to the second, unless the first has been obtained by fraud. The second may be enforced as far as the execution of the first has left that practicable. (Marshall, 162. See "Preference.")

If a defendant, against whom there is a judgment, resides in another district, or has not sufficient property in the district in which judgment was obtained to satisfy the judgment and costs, the plaintiff may, on the return of the writ to that effect, move for execution against the person or property (or both), within any other district, for the amount, or for any unsatisfied balance of the judgment. The writ must be transmitted to the judge of the other district, who must endorse it, and direct it to

the fiscal of his district, and, when executed and returned, transmit it, with the sum leased, or the body of the defendant, to the court out of which execution issued. (R. and O. Sect. 1, Rule 36.) This rule must be strictly adhered to in all its particulars. (See Marshall, 162.)

All property, moveable or immoveable, debts due to a defendant, even though not yet recovered from his debtors, and property which has been decreed to a defendant, are subject to be levied in execution. (Marsh. 163.) Even goods bought and not paid for are liable in execution; and if bought on a covenant of resumption on non-payment, they become liable, if the privilege of resumption has not been legally exercised. (1735, D. C. Kandy, 9 Dec. 1835; Austin, 16: Marsh. 163,) So, also, where a donor makes a valid gift, being in debt at the time of the gift, the property so transferred is liable to be sold in satisfaction of his debts. (20929, D. C. Kandy, 27 March, 1850; Austin, 123.)

What may be subject to execution.

execution.

In execution against property, the fiscal without delay Mode of requires the debtor to pay the amount of the writ, or to point out and surrender unclaimed property sufficient to satisfy it; if the debtor fail to do so, the party suing out process may point out the debtor's property, and in default of any being pointed out, he may be arrested by process of execution against his person. (R. and O. 11 July, 1840, R. 4, p. 123.) As soon as property is seized, a list of it must be forthwith made and signed by the fiscal, &c. to be delivered to the person in possession, or, if no one is in possession, to the headman or constable

Order of execution.

Claimants.

of the division, and copies must be deposited in the fiscal's return and annexed to the writ. (Idem, R. 5.)

The fiscal ought to be careful only to take that property which he has good reason to believe belongs to the person against whom execution has been issued. (Marshall, 163.) And it is proper and usual to take the moveable property first, and not to touch land unless the other property is insufficient.

When the fiscal seizes property which other parties claim, the claim to the property seized cannot be disposed of in a summary manner; but the right of the claimant must be ascertained and adjudged, in a suit for that purpose, in accordance with the clear meaning of § 15 of Ord. 1 of 1839. (14245, D. C. Chilaw, 25 May, 1852: 14432, C. R. Galle, 3 Dec. 1860.) If the claimants against execution are out of possession, they must be the plaintiffs in such a suit; but if they are in possion, the parties out of possession must commence such actions to try claims made upon executions. (534, D. C. Jaffna, 1st Oct. 1850); but whether the plaintiff or defendant, the case does not say. Marshall (p. 164) argues that it would defeat justice to call upon a plaintiff to sue the claimants. By 15 of 1 of 1839, the person in possession is, for the purposes of execution, to be considered the proprietor, until the contrary is shown, or his title is so suspicious, from force or fraud, that the court may call upon him to prove it. If a groundless claim is put in to defeat or delay execution, the claimant is liable to treble costs;