Hendrick v. Habbakkala.
Present: Keuneman and Wijeyewardene JJ.
HENDRICK v. HABBAKKALA.
221—D. C. Colombo, 868.
Seizure—Undivided share of property and divided lot as well—Partition actionpending—Final decree entered—Validity of seizure—Action undersection 247 of the Civil Procedure Code.
Plaintiff in execution of a decree against the second defendant seizedon February 24, 1937, an undivided I share of a land as well as a dividedlot of the same land. On May 10, 1937, first defendant claimed the saidproperty by deed dated February 2, 1937, and his claim was upheld.Plaintiff thereupon brought the present 247 action. Prior to February.1937, a partition action had been instituted in respect of that land.Preliminary decree had been entered'and a date fixed for confirmationof the scheme of partition, viz., February 17, 1937, when the scheme wasconfirmed. Final decree was entered and filed on February 25, 1937.
Held, that the final decree having been entered on February 25, 1937,the seizure of an undivided share was not valid, because as a result of thefinal decree the second defendant’s title to an undivided share was extin-guished. Nor was the seizure of the divided lot valid as at the date ofseizure the divided lot had not come into existence.
KEUNEMAN J.—Hendrick v. Habbdkkala.
PPEAL from a judgment of the District Judge of Colombo.
N. E. Weerasooria, K.C. (with him J. R. Jayawardana), for first andsecond defendants, appellants.
L. A. Rajapakse, for plaintiff, respondent.
Cur. adv. oult.
March 10, 1939. Ketjneman J.—
This is an action under section 247 of the Civil Procedure Code. Thepresent plaintiff has brought action and obtained a decree for moneyin D. C. Colombo, 1,523, against the present second defendant. OnFebruary 24, 1937, the Fiscal seized under the decree the right, title, andinterest of the present second defendant in the following property,to wit: —
An undivided & share of the property called Millagahawatta.
All that divided portion marked letter “ A ” of the property Milla-gahawatta.
On May 10, 1937, the first defendant claimed the said property underdeed P 3, No. 1,213, dated February 2, 1937, and his claim was upheldon June 11, 1937. The plaintiff thereupon instituted the present action.
Long prior to February, 1937, a partition action (D. C. Colombo,18,325) had been instituted in respect of the property Millagahawatta,and was pending in that month. Preliminary decree for partition hadalready been entered, and the date fixed for the consideration of thescheme of partition and the objections thereto. The journal entry ofthat date reads as follows: —
“ 17.2.37 case called, consideration of scheme; proctor for 33, 34
and 36th added defen4fints accept the scheme. Confirm scheme.
Final decree 21.4.37 ”.
Immediately after that appears the following: —
“ Final decree entered and filed ”.
Copy of motion filed with Final Decree.
“ I tender herewith final decree in the above case duly drawn upby me and signature of the Court and move that the same be thereafterfiled of record.
Colombo, February 25, 1937 ”.
The final decree has been produced (document D5) and bears the dateFebruary 17, 1937. But the learned District Judge has held, I thinkrightly, that though it bears that date, it could not have been signed bythe Judge prior to February 25, 1937.
It seems clear that on February 17, 1937, the only order made by theDistrict Judge was for confirmation of the scheme. No order for the
14-JUUISip.XvIAN J.- Hendrick u. Habbakkala.
. allotment of the divided share to the various parties was made until thesigning of the final decree, which did not take place until February 25at the earliest.
I think therefore that we must follow the case of Gunawardena v.Seneviratne 1 and hold that the final judgment was entered on February25 at the earliest.
Under the final decree, the present second defendant who was theplaintiff in the partition action was allotted the divided portion markedlot “ A ” out of Millagahawatta.
Several points both of fact and law, some of considerable complexity,were argued before us. Inter alia, it was contended by the respondentthat the deed P3 which purported to convey to the first defendant theshare that would be allotted to his vendor (the present second defendant)in the partition action, was a mere agreement to convey such share,or in the alternative that the deed P3 was rendered void by the enteringof the final decree in the partition action thereafter by virtue of thePartition Ordinance. The appellant on the other hand contested thefinding of the District Judge that the deed P 3 was executed in fraud ofcreditors. I think, however, in the view I take of the case, that there is nonecessity for me to decide any of those matters.
It was incumbent on the plaintiff in this action to establish first of allthat he had a valid seizure. His seizure was on February 24, 1937,and on February 25 or at some later date the final decree in the Partitioncase was entered. What effect did this have upon the plaintiff’s seizurewhich was of an earlier date?
The seizure (vide document P2) was of the right, title, and interestof the defendant in (1) an undivided one-eighth share of the propertyMillagahawatta and (2) the divided portion marked lot “ A ” out ofMillagahawatta. On February 24, 1937, the date of the seizure, thepartition action was still pending. It was certainly open to the presentplaintiff to seize the undivided one-eighth share of Millagahawatta,but at that time the divided lot " A ” had not come into existence as anentity, and I cannot regard the seizure of lot “ A ” as being a validseizure on the date in question.
A.s regards the seizure of the undivided one-eighth share of Millagaha-watta, on February 25 the final decree in the partition action wasentered. As a result of that decree, the present second defendant’s titleto an undivided one-eighth share of the whole corpus of Millagahawattawas extinguished, and an entirely new title vested in him in respect oflot “ A ”. T think it results from this that the seizure of such rightand title to an undivided share of Millagahawatta was not validthereafter.
If we look at the matter from another angle, on February 25, whenthe partition decree was entered, the present second defendant hadunder section 9 of the Partition Ordinance a title to the divided lot “ A ”,which was “ good and conclusive against all persons whatsoever, what-ever right or title they have or claim to have in the said propertyDid the present plaintiff have before that date a right or claim of right
« 8 G.L. Weekly 129.
KEUNEMAN J.—Hendrick v. Habbakkala.
in the property? I think he did have such a right in virtue of his seizure,and that as a result of the operation of section 9 of the Ordinance, hisright was extinguished.
I may add that where the Legislature desired that any right alreadyexisting should be continued in existence, and imposed upon the sharein severalty allotted to the party, it expressed its meaning in clear words,vide section 12 which related to the mortgage of undivided shares.Such mortgage was preserved and imposed upon the share in severaltygiven to the party under the partition decree.
The difficulties of this question have been discussed in Jayewardeneon Partition, p. 299. No final opinion on the matter was given there.I am certainly in agreement with the learned author as to the desirabilityof simplifying the procedure so as to cause the least possible inconvenienceto a bona fide judgment-creditor, but 1 find it difficult to see that some ofhis suggestions have the sanction of law at the present time, and thelearned author has not discussed the difficulty created by section 9 of theOrdinance.
Tt is to be noted that in the present case the contest is not between thejudgment-creditor and the judgment-debtor, but between the judgment-ereditor and a third party who claims to have acquired the interest of thejudgment-debtor. Even if we were to hold the seizure to be still valid,it is difficult to hold that it can be executed against anything else but anundivided one-eighth share of lot “ A
1 may add that I can see nothing that prevents a judgment-creditor,who has seized an undivided share of a property which has subsequentlybeen the subject of a partition action, from making a fresh seizure of thedivided share allotted to his judgment-debtor after the final decree hasbeen entered.
I think I must hold that the plaintiff has failed to prove that hisseizure is valid at law, and that his action accordingly fails.
I accordingly allow the appeal and set aside the judgment appealedfrom and dismiss the plaintiffs action. To remove any doubts whichmay exist, I reserve to the plaintiff the right to raise any objectionshe may have as against the deed P3, in the event of a new seizure beingeffected of lot “A ” at his instance.
As regards costs, the position is not easy. Certainly the point nowtaken was not raised in any pleading or issue, and while I think that as apoint of law it was open to the appellant to take it in appeal, it waspossible that had the point been taken earlier, the respondent may havepreferred to withdraw his action, and make a new seizure. In all thecircumstances I order the respondent to pay to the appellant the costs ofappeal, and one-third of the costs of the proceedings in the Courtbelow.
Wueyewardene J.—I agree.
HENDRICK v. HABBAKKALA