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Present : Dalton J.
NANAYAKAEA v. SULAIMAN.
128—C. R. Colombo, 27,573.
Execution—Irregularity ofwrit—Technical objection—Civil Procedure-
Code, i. 347.
Where a claimant ■ to property seized in execution objected to-the regularity of the proceedings on the ground that no noticeof the application for writ had been given to the judgment-debtorin terms of section 347 of the Civil Procedure Code.
Held, that as no injustice was done to the claimant, the execution.-proceedings were not irregular. In execution proceedings theCourt will look at the substance of the transaction and will not be'-disposed to set aside an execution upon merely technical grounds,,when the execution has been found to be substantially right.
^PPEAL from a judgment of the Commissioner of Bequests.
N.E. WeeniHuriya, for appellant.
James Joseph, for respondent.
August 12, .1926. Dalton J.—
The appellant, plaintiff in this action, claimed certain articles-'seized hv the respondent, defendant, who had obtained judgmentin case Xo. 9,842 of the Court of Eequests against one Hussaine.The writ was issued oh June 1, 1925, more than one year from thedate of the decree. The appellant had preferred his claim to the-articles seized as the property of one Quadir Khan, his employer,’who was said to be absent in India, and set up that the articles-when seized were in his possession. The Commissioner has, however,.
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rejected his evidence, accepting that led on behalf of the defendant-respondent,' as to possession and the identity of the property. Isee no reason to interfere with his findings on the facts.
Appellant however urges that the writ upon which executionproceeded is bad, in view of the fact that more than one yearelapsed between the date of the decree and the application for itsexecution (section 347 of the Civil Procedure Code), the petitionnot being served on the judgment-debtor. The Commissionerwas of opinion that Hussaine, the judgment-debtor, designedlywaived the right to take this objection in case No. 9,842, for inany case it could only have been of temporary benefit to him.He accordingly held that it was not open to the present appellantto take this objection. It is quite clear, from the terms of the.appellant’s petition, under section 328 of the Code setting out the.grounds upon which he disputes the rights of the decree-holderto the articles seized that he urged that the writ was bad in law,and therefore the Commissioner was entitled to deal with thatobjection. I am unable to agree with the argument advancedby Mr. Joseph on this point. It is equally clear, in my opinion,accepting the conclusions of the Commissioner on the facts, thatthe objection is a technical one, and that no injustice whatsoeverhas been done to the appellant. As observed by the Privy Councilin Bissesur Lall Sahoo v. Maharajah Luckmessur Sinyh 1 in executionproceedings, the Court will look at the substance of the transaction,.and will not be disposed to set aside an execution upon merelytechnical grounds, when the execution has been found to besubstantially right.
For this reason I would uphold the decision of the Commissionerupon the legal point, on the assumption that the appellant was•entitled to take the objection.
The appeal therefore fails, and must be dismissed with costs.
1 6 Indian Appeals 233.
NANAYAKARA v. SULAIMAN