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ISMAIL LEBBE v. OMER LEBBE.
D. C., Kalutara, 1,747.
Civil Procedure Code, s. 247—Seizure in execution—Claim by owner—Cause of action—Non-disturbance in possession—Effect of seizureby Fiscal.
A seizure by the Fiscal is in law dispossession, and if the owner putin a claim to the property and that claim was disallowed, it is hisduty to bringan action under section 247 of the CivilProeedure Code.If he does not do so within fourteen days from the date ofdisallowance of his claim, he Is for ever precluded from allegingthat the property was not liable to be sold under that seizure.
qpHIS was an action brought under section 247 of the CivilProcedure Code by an unsuccessful claimant, whose propertyhad been seized in execution of a decree against a third person.The plaintiff was the owner of an undivided half of the dividednorthern portion of the garden called Kandagodawatta.
The Fiscal, at the request of the defendant, who was theexecution-creditor of a third person, seized the whole of thenorthern portion of this garden, when the plaintiff put in a claim,but owing to illness he was unable to attend and sustain hisclaim, and his claim was dismissed. Thereupon he brought thisaction.
The parties led evidence as to their respective titles and acts ofpossession, and the District Judge found that the weight of theevidence was in favour of the conclusion that at the time of theseizure the plaintiff was in the actual possession of this property ;but he dismissed his action “ on the sole ground that he has no'* actual cause of action—he has not been disturbed in the“ possession of the property he claims, and he has suffered no“ damages by any act of the defendant.”
Sampayo, for appellant.Jayawardana, for respondent.
28th February, 1899. Bonsee, C.J.—
It seems to me that the District Judge was quite wrong in theview he took of the effect of the seizure. A seizure by the Fiscalis in law dispossession, and if the owner put in a claim to theproperty and that claim is disallowed, unless within fourteen daysfrom the date of disallowance he brings an action under section
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247, he is for ever precluded from alleging that the property wasnot liable to be sold under that seizure.
The proper order in this case is what the plaintiff ought to haveprayed for, in his plaint, a declaration that he is entitled to havethe undivided half share of the northern portion of the gardenKandagodawatta, which was seized by the Fiscal at the instanceof the defendant, released from seizure.
Lawrie, J., agreed.
ISMAIL LEBBE v. OMER LEBBE