Committal for debt imprisonment requires prior debtor examination under Part IX before Part VIII application.

[*361] 1972 May.27

(LAOUTAS, AG. D J.)

IN THE DISTRICT COURT OR PAPHOS

Stelios Kattimeris,

Plaintiff,

And

Andreas Constantinides,

Defendant.

(Action No. 969/69).

Civil Procedure - Judgment debtor - Execution by imprisonment - Committal proceedings under Part VIII sections 82 to 85 of the Civil Procedure Law, Cap. 6 - To be preceded by an application for debtor's examination under Part IX sections 86 to 91 of the said Law.

Civil Procedure - Judgment debtor - Instalment order under Part IX sections 86 to 91 of the Civil Procedure Law, Cap. 6 - Order directing payment of the whole debt - Whether an order within the said Part IX,

Judgment Debtor - Committal proceedings - See under "Civil Procedure”.

E. Korakides, for the Applicant.

Defendant absent.

RULING

The following ruling was delivered by: -

LAOUTAS. AG. D.J.: This is an application [*362] for a committal order against the respondent for failing to obey an order of the Court dated 12.3.71 Toy virtue of which he was ordered to pay the whole judgment debt in action No. 969/69. The application is based on s. 82 of the Civil Procedure Law Cap. 6, the Courts of Justice Law 14/60, s. 42, and the Civil Procedure Rules.

The respondent has not appeared and did not oppose the application. The Court, however, by its own motion (exproprio motu), thought fit to have the above application fixed for hearing and to hear full argument by learned counsel appearing on behalf of the applicant. The Court decided to follow this course as it was of the opinion that this application could not be heard.

According to the evidence of the applicant who reiterated what he had stated in his affidavit dated 9.3.72, the respondent by an order of the Court dated 12.3071, was ordered to pay on 30.9.71 the whole of the judgment debt amounting to £68.225 mils, including the costs. The respondent having failed to abide by that order the applicant filed the present application.

In the opinion of the Court the question which has to be considered is whether the applicant can proceed with the present application without first applying under s. 86 of the Civil Procedure Law Cap. 6 to have the respondent examined respecting his ability to make the payment.

The second question to be determined is whether the order of the Court dated 12.3.71 can be considered as an order directing the respondent to pay the judgment debt by instalments. [*363]

Before answering the above questions I shall examine what are the legal considerations pertaining to the present proceedings.

Section 82 of the Civil Procedure Law Cap. 6 reads:

"Where upon any investigation by the Court respecting the ability of a Judgment debtor to pay the amount due under a judgment or order it appears to the Court ..............”

(a) .............

(b) .............

'the Court may on the application of the creditor commit the debtor to prison............."

Section 86, however, of part IX of the same Law provides that

"Where a judgment for the payment of money remains wholly or in part unsatisfied (whether a writ of execution has issued or not), the judgment creditor may apply that the debtor be examined respecting his ability to make the payment".

Also s. 91 provides that "the Court may, if it thinks fit upon or at any time after any such investigation, direct that the sum due under the judgment shall be paid by instalments at such times and in such amounts as it may think proper".

It is the opinion of the Court that both sections 82 [*364] and 86 should be read and construed in conjunction to each other. In construing the two sections I have come to the conclusion that the ‘’investigation” referred to in s. 82 should be the one which should be made under the provisions and in accordance with s. 86, and which (investigation) gives the power to the Court to make an order for the payment of the judgment debt any instalments as s. 91 clearly provides.

If this is the correct construction of the two sections, which are included in parts VIII and IX of the Civil Procedure Law Cap. 6, respectively, one may reasonably keep thinking why part IX of the Law follows and does not precede part VIII. The answer to this question could be found in the case of Anestos Adamou v. Xenophon Ioannides 1963(2) C.L.R. p. 468 where judge Josephides,

at page 476 said: "Be that as it may, and although logically Part IX (debtor’s examination) should precede Part VIII (debtor's imprisonment) in the Civil Procedure Law Cap. 6, we do not think that undue weight should be given to the order in which these provisions appear, and the respective sections of the Law should be interpreted and applied as substantive enactments irrespective of this. So far as we are aware it has been the practice for a considerable number of years now (and we have been -unable to trace any decision of the Supreme Court to the contrary) for a judgment creditor to apply first for an order for the payment of the judgment debt by instalments (under section 91) and in case of the debtor’s failure to comply with such an order, then to apply to the Court under the provisions of section

82 for [*365] the debtor's imprisonment. This is in our view covered by the provisions of section 82 and we believe it is the correct procedure to follow”.

It is evidently clear from the above that the correct procedure is for the judgment creditor to apply first under part IX of the Law i.e. regarding the ability of the judgment - debtor to pay the debt by instalments, and then to proceed with an application for his committal to prison.

From the record before me T have been able to trace the following: On 22.2.71 the applicant filed an application asking for the examination of the judgment debtor. (respondent) respecting his ability to pay the judgment debt. There is nothing on record to indicate that the respondent had been so examined. By a consent order dated 13.3.71 the respondent was ordered to pay on

30.9.71 the whole judgment debt.

As I have already indicated at the beginning the question which calls for consideration is whether the order was made in accordance with the provisions of s. 86 and also whether that was an order directing the payment of the debt by instalments as s.91 provides.

The learned counsel for the applicant has submitted that the order directing the payment of the whole judgment debt should be interpreted as meaning that it should be paid in one instalment. Having considered the argument of the learned counsel very carefully and having regard to s. 91, I am unable to agree with him. Section 91 is very precise and very clear and affords no: other interpretation. That [*366] section refers to "instalments’1 and "amounts” and in my opinion does not mean one instalment and one amount or the whole judgment debt. I am of the opinion that the Court, in making the previous order, was in effect granting a stay of execution of the whole judgment until 30,9.71.

The application is also based on s, 42 of the Courts of Justice Law, 1960. This section provides that "subject to any Rules of Court any Court shall have power to enforce obedience to any order issued by it, directing any act to be done or, prohibiting the doing of an act ....”.

The Supreme Court of Cyprus in Maroulla A. Nicola v. Zannettos & Djiaboura (1929) 14 C.L.R. 10, held that a judgment or order for the payment of money is not an order "directing an act to be done”, within the meaning of Clause 40(1) of the Cyprus Courts of Justice Order, 1927, which was the Precursor of Section 42 of the Courts of Justice Law, 1960 and Order 42A of the Civil Procedure Rules. It is the opinion of the Court that s. 42 does not apply to the present proceedings. It has been very aptly stated in the case cited above that "Clause 40 of the Order-In-Council, is meant to provide for other cases and not to afford to the plaintiff a short cut which would enable him to dispense with the proof of means and ability to pay required by Cyprus Law".

Before concluding I would like to state that the practice which has been followed for a considerable number of years is the correct one, because in my opinion, under an application of this nature the liberty of the subject is at [*367] stake and all other methods of satisfying a judgment debt should first be explored and exhausted before an application for a committal order should be resorted to.

Having found as above I shall not examine whether the respondent has had the means to pay and he wilfully failed to do so.

For all the reasons I have endeavoured to explain I find that this application cannot proceed and is accordingly dismissed, without any order as to costs.

Application dismissed.

No order as to costs.