Hasham v Hall (C.A. 32/1929.) [1929] EACA 122 (1 January 1929)

## APPELLATE CIVIL.

Before THOMAS, J.

## BHIMJI HASHAM $\mathbf{v}$ .

## MISS MARY HALL.

## C. A. $32/1929$ .

The Civil Procedure Rules, 1927, Order 19, Rule 37—proceedings on appearance of judgment-debtor in obedience to notice or after arrest.

Held: - That the words " or other sufficient cause " do not limit the power of the Magistrate to questions of poverty. What such sufficient cause may be is left to the Magistrate to decide and thereby he is gvien a discretion.

JUDGMENT.—This is an appeal from a refusal by the Magistrate to commit to prison a minor who is a female for nonpayment of a judgment debt. At the time of the judgment, which was obtained through default of appearance, it was not known that the defendant was a minor.

Order XIX, R. 37, says: "Where a judgment-debtor appears before the Court in obedience to a notice issued under Rule 34, or is brought before the Court after being arrested in execution of a decree for the payment of money, and it appears to the Court that the judgment-debtor is unable, from poverty or other sufficient cause, to pay the amount of the decree, or, if that amount is payable by instalments, the amount of any instalment thereof, the Court may, upon such terms as it thinks fit, make an order disallowing the application for his arrest and detention or directing his release, as the case may be."

It has been argued that the rule does not confer a discretion on the Magistrate.

The corresponding section of the Indian Code of Civil Procedure (Act XIV of 1882) is 337A. The language of that article is identical with that of Order XIX, R. 37; but there is a comma after the word " unable " and another comma after the word "cause". The presence of these commas does not in my opinion affect the meaning of the words employed.

The case of Bhanabhai v. Chaturbhai (1897), 22, Indian Law Reports (Bombay Series), p. 961, dealt with Article 337A in the case of a lunatic. PARSONS, J., in his Judgment said: "There is no provision of the Code which expressly exempts lunatics from arrest as there is in the case of women $(245a)$ , but it is clear that the power to order an arrest at all is discretionary.

With that decision I agree. The words " or other sufficient cause," do not limit the power of the Magistrate to questions of poverty. What such sufficient cause may be, is left to the Magistrate to decide and thereby he is given a discretion. $\mathbf{It}$ would not be difficult to suggest cases in which such discretion might be exercised. It has been exercised in the case of a lunatic. Old age, sickness, infirmity, might well be grounds for the Magistrate exercising his discretion. There is no reason why minority should not be included. The Judgment I have above cited continues as follows:-

"We see no reason to interfere with this exercise by the subordinate Judge of his discretionary powers. There ought never to have been a decree passed against the judgment-debtor personally. Had the Judge of the High Court on its original side been aware that the defendant had been declared a lunatic in March, 1895, he would not, in April, 1895, have passed an ex parte decree against the defendant personally. It was by concealment of this fact that the decree-holder obtained the decree, and we are not disposed to assist him in the execution thereof."

Very similar language might be employed with regard to the present case. I am of the opinion that the discretion was properly exercised.

The Magistrate seems to have treated the matter as though it came under Rule 20, but I am satisfied, and counsel for the appellant has most properly conceded, that as long as a discretion existed and it had been exercised properly, then the error as to the Rule would make no difference. The appeal must be dismissed with costs.