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JAMES & Co. v. NATCHIAPPEN.
D. C., Kandy, 10,856.
Claim to property seized in execution—Rejection of claim—Duty ofunsuccessful claimant—Stay of sale—Action under s. 247 aftersale—Action for damages.
If an unsuccessful claimant to movables seized in execution doesnot apply for a postponement of the sale under section 242 of theCivil Procedure Code, and if the sale is carried out and. the goodsare sold and dispersed, the question of their liability to be sold isconcluded between the parties, and an action under section 247 isinappropriate. ,
Serrible per Withers, J.—That the unsuccessful claimant, in theabove circumstances, has not even an action for damages outsidethe scope of section 247.
I~N this case the defendant, on a writ of execution obtained byJ- him against one W. J. Perera in case No. 9,665 of the DistrictCourt of Kandy, seized as his property certain articles, such ascoriander seed, chilly, poonac, &c., in a boutique at Dikoya. Theplaintiffs, averring to be the owners of the boutique, claimed thearticles seized as their stock-in-trade. The claim was inquiredinto by the District Judge and disallowed on the 16th July, 1896.The articles were thereupon sold by the Fiscal on the 24th Julyand the proceeds deposited in Court, but were not drawn byeither party. On the 29th July the plaintiff instituted the presentaction under section 247 of the Civil Procedure Code, and prayedVol. HI.12(56)29
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1898. that they be declared the owners of the goods when seized, andApril 4. that the defendant be condemned in damages, Rs. 1,000. Twoissues were framed at the trial: (1) whether the plaintiffs wereon the 19th June, 1896, the owners of the property describedin the schedule to the plaint; and (2) whether the defendant isliable to pay the plaintiffs Rs. 1,000 or any part thereof as damages.The District Judge decided both the issues in the plaintiffs,favour, and condemned the defendant to pay Rs. 500 as damages.
The defendant appealed.
Dornhorst, for appellant.
W. Pereira (H. Jayewardene with him), for respondent.
Cur. adv. vult.
4th April, 1898. Lawrie, J.—
Under writ against the brother of the first plaintiff the stock-in-trade in a boutique in the Dikoya bazaar was seized.
The plaintiffs claimed the goods. After inquiry the DistrictJudge disallowed the claim. The goods were sold by the Fiscalon the 24th July, 1896.
On the 29th July (five days after the sale) the plaintiffs broughtthis action against the judgment-creditor.
It purports to be an action under section 247. They prayedthat they might be declared the owners of the goods, and thatthese were not liable to be seized and sold in execution.
They prayed for Rs. 1,000 damages for having been preventedfrom carrying on their business and for having suffered in theircredit by the illegal seizure.<
In my opinion, if an unsuccessful claimant to movables doesnot apply for a postponement of the sale under section 242, andif the sale is carried out, if the goods are sold and dispersed, thequestion of their liability to be sold is concluded between theparties and an action under section 247 is inappropriate.
I am also of the opinion that an action for damages does notlie in the circumstanoes of this case.
It is not averred that the defendant acted maliciously or with-out probable cause in pointing out the goods for seizure; theplaintiffs had the opportunity of establishing their claim.
They failed to satisfy the judge that the goods belonged tothem, or even that they were in their possession ; if at the claiminquiry they had led the same evidence as they led in this case,the District Judge says they would have succeeded.
I would set aside and dismiss with costs.
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This raises a new point and one of considerable importance in —the construction of those difficult sections of the Code under theheading “ Claims to Property Seized.”
Can a claimant to movables seized in execution, and whose olaimhas been disallowed, institute an action within fourteen days of theorder to establish the right which he claims, after the goods havebeen Bold, and to recover damages from the execution-creditor,who was benefited by the sale of the goods levied under his writ ?
And, supposing he can bring an action to have it'declared thatthe property seized and sold was his at the time of seizure, can herecover anything from thg execution-creditor because the goodswere sold in execution of the execution-creditor’s writ ?
This chapter of the Code is concerned with claims to propertyseized and with objections to the seizure or sale of the property(section 241). No one can come forward to prefer a claim or lodgean objection unless the claimant or objector can show that at thedate of the seizure he had some interest in or was possessed of theproperty seized (section 243).
If the Court is satisfied that for the reasons stated in the claimor objection (i.e., imagine the reason of being interested in orpossessed of the property), such property was not when seized inthe possession of the judgment-debtor or of some person in trustfor him, &c., the Court shall release the property wholly or to suchextent as it thinks fit from seizure, &c(section 244).
If the Court is satisfied that the property was in possession ofthe judgment-debtor as his own property, &c., it shall disallowthe claim (section 245).
It appears as if other cases were left to the discretion of theCourt.
No doubt the cardinal point for determination in these inquiriesis—Was the judgment-debtor or not in possession of the propertyon his own account, or was some one else in possession for him atthe time of seizure ?
The disallowance of the claim implies, it would seem of necessity,the non-release of the property seized.
Obviously then the claimant in such a case, if he is in earnest inhis claim or objection, Would apply to the Court for an orderstaying the sale until his contemplated action to determine hisright was decided.
If he undertook to bring the action within fourteen dayson such terms, if any, as might be reasonably required, theCourt, I should imagine, would make- the order as a matter ofcourse.
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It appears to me that such a course would be the claimant’sduty to take. The paramount object of the claimant is to havethe sale stayed at any (legitimate) cost pending the determinationof the right which he claims.
But supposing he brings his action after the sale of the goods,and it is found that the goods belonged to the olaimant at thetime of seizure, what jus in personam has he against the execution-creditor for compensation if the Fisoal choose to seize and sell thegoods ? None that I can see.
But supposing that the execution-creditor took upon himself topoint out the goods for seizure and made the Fiscal his agent toseize and sell goods which did not belong to his execution-debtor ?
The owner of the property under the latter circumstancesused to be considered to have a good cause of action against theexecution-creditor for damages.
But has an owner that right now,-when he has made a claimwhich has been disallowed, and when he has taken no steps tohave the sale stayed pending the determination of his right in anaction under section 247 ? I doubt it, for the sale has taken placethrough his own default.
In my opinion, though I coiffess the point is not free fromdifficulty, a claimant has no right of action either under section247 or for damages, when the sale has been held before his rightof action commenced.
I would therefore set this judgment aside and dismiss theplaintiff’s claim with costs.
JAMES & Co. v. NATCHIAPPEN