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Present: Bertram C.'J. and De Sampayo J.MABIAMMAI et al. v. PETHBUPILLAI et al.
220—D. G. Jaffna, 11,734..
Action under s. 247—Is the question whether judgment was obtained byfraudmaterial?—Admissionin lowerCourt—Bindingeffect on
Inan action undersection 247 of the CivilProcedure Cede,by
thejudgment-creditor,the question whetherhe obtainedthe
judgment sought, to be executed by fraud or collusion is relevant;but in an action by a person other than the execution-creditor, thebona fides of the creditor in the original action is not material.
Nothingis resjudicata • except between persons who were at
issueon the occasionwhen the thing , was adjudged cr persons
claiming through them.
“ If a party in a case makes an admission for whatever reason, hemuststand by it; itis impossible for him toargue a pointon
appeal which he formally gave up in the Court below.
•pHE facts are set out in the petition of appeal as follows: —
Vitiyanal died in 1908, and her said daughters inherited in equalshares an extent of 1| lachams of varaku -culture on the northern sideof theland, situated at Karaiur, called Paviluvalavu, which ' is inextent 2 2/6 lachams of varaku culture.
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Thesecondthird defendants disputed the claims of the
From the year 1909 there has been a series of actions between
the rival claimants npto about the month of October, 1916. These
actions were Nos. 6,683 and 10,109, D. C. Jaffna; and Nos. 6,914/Aand 9,607/A, C. B. Jaffna. –
6. The nett results of these actions were, that the daughters retained5/7ths share of the land, and the second and third defendants gainedthe balance 3/7ths share.
In January, 1916, the second and third defendants found a friendin the first defendant-respondent, whosuedthe second andthirddefend-
ants for Bs. 600 in case No. 11,043, D. C. Jaffna.
Thefirst defendant-respondent obtained decree by default,and
went straight up with his writ to seise the 6/7ths share, although thesecond andthirddefendantshad other saleable property, well knowing
thatthe 6/7thsshare wasdecreed to belongto the daughters of
Claims were preferred. The appellant claimed 3/7ths. Their
sister claimed l/7th, and another sister’s son claimedanotherl'/7th
There were conflicting' judgmentsregarding ' the titleofthese
shares. At the claim inquiry, too, the Court below upheld the claimof the one, and rejected the claimof the other two.Threeactions
under section 247 of the Code sprangup.The respondent(firstdefend-ant)wholostthe seizureinstituted case No.11,891/A, and these
appellants and another who lost their claim instituted cases Nos. 12,241/Aand 11,734. Of these three cases, No. 11,891/A went to trial, and theother two were laM by awaiting the result of No. 11',891/A.
The Court below decreed, and it was upheld by Tour lordships'
Court,thatthefirst defendant-respondent cannotdiscuss the l/7th
share that was in dispute in case No. 11/891/A, on the ground that theaction which led to the execution proceedings were instituted fraudu-lently and collusively.
This case, which is the subject of this appeal, was, after theaforesaid decree, listed for trial before the Court below, and on May 24,1918, it was held that the execution proceedings were bone fide, andthe 3/7ths share of the appellant is liable to be seized and sold under' writin case No. 11,043.
The plaintiffs appealed.
W. Jayawardene (with him Joseph), for appellants.
A. St. V. Jayawardene (with him Mahadeva), for respondents.November 20, 1918. Bebtbam C.J.—
This is an action under section 247 of the Civil Procedure Code,and the main question in the case is whether the title is in thejudgment-debtors. The question is, in fact, not arguable, becauseit appears that in the District Court a formal admission was madeby the present appellants that the title was in the judgment-debtors. That admission, ties the hands of the present appellants.They are bound by that, and the whole of Mr. Jayawardene’s
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argument has been an elaborate and laborious attempt to escapefrom that position. If a party in a case makes an admission forwhatever reason, he must stand by it; and it is impossible for himto argue a point on appeal which he formally gave up in the Courtbelow.
The only other point was this. It is said that even though thetitle is in the judgment-debtors, yet the judgment-creditor is notin a position to assert it, because his whole action is fradulent, andis based upon a collusive promissory note. It is not necessary togo into the whole history of this action. But it may he mentionedthat in a previous action under the same section the judgment-creditor was the plaintiff, and in that previous action the questionof the bona fides of this promissory note was contested, and judg-ment was given against the judgment-creditor. In that action thequestion of the bona fides of the note and the collusiveness of thejudgment was perfectly relevant. Under section 247 of the CivilProcedure Code it is provided that an action must be institutedwithin fourteen days, and that in the case of an execution-creditorthe action is “ to have the property declared liable to be sold in. execution of the decree. ” That being the object of the action ofthe execution-creditor, it is perfectly relevant to point out that hecan have no such right, because his action is founded upon fraudor collusion. But the same section provides in effect, with regardto any claim by a person other than the execution-creditor, thathis action is to establish “ the right which he claims to the propertyin dispute." In that action the bona fides ( of the creditor in theoriginal action in which judgment was obtained is not material.
Mr. Jayawardene has cited as against that proposition the caseOf Abdul Cadet v. Annamalay. 1 I do not think that case reallyhelps him. The effect of that case is that where a person bringsan action under section 247, and claims to be in possession, of theproperty, all that he need prove, in the first instance, is that heis in possession. But the onus is then shifted, and it is then forthe execution-creditor affirmatively to make out a title in theexecution-debtor. I do not think that the case can be put anyhigher than that.
It appears, however, to have been considered in the District Courtthat the question of the collusiveness of the action was material,and the District Judge went into that question. As a- matter offact, however, he found that the action was not collusive, and thatthe execution-creditor had a perfect right to bring an action. Therecan be no question that there were facts to justify such a finding.It is said against that, that the learned District Judge, in a previouscase in which the very same facts were in issue, eame to a diametric-ally opposite conclusion. This is no doubt open to comment. Nodoubt the learned District Judge had other material before himl(1896) 2 N. L. R 166.
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for the purpose of the second decision. At any rate, that deoisionmust be taken to stand for the purpose of this action. Even,therefore, if it were material to inquire in this case whether theaction In which judgment was obtained was a collusive one, weshould have to take the finding of the learned District Judge thatit was not, and the question, therefore, of the relevancy of thatconsideration need not be further discussed.
Mr. Jayawardene also raised a further point, which hardly admitsof argument. In both these actions under section 247 the judgment-debtors were formally made defendants. He now wishes to suggestthat, because in the present action the execution-debtor and thosetwo execution-creditors are co-defendants, the old original findingof the District Judge that the action was a collusive one is resjudicata. It is hardly necessary seriously to consider that proposi-tion. Nothing is res judicata except between persons who were atissue on the occasion when the thing was adjudged or personsclaiming through them. In my opinion, for the reasons I havegiven, the appeal must be dismissed, with costs.
De Sai&payo J.—I agree.