Panditha v. Davaoodbhoy.
Present: Maartensz J.
PANDITHA v. DAWOODBHOY.
83—C. R. Colombo, 35,170.
Action under section 247 of the Civil Procedure Code—Brought by unsuccess-ful claimant—Judgment-debtor not. a necessary party.
The judgment-debtor is not a necessary party to an action brought:by an unsuccessful claimant for the purpose only of section 247 of theCivil Procedure Code.
1 5 Cey. Law Weekly 51.
MAARTENSZ J.—Panditha v. Dawoodbhoy.
^^PPEAL from a judgment of the Commissioner of Requests, Colombo.
P. Tiyagarajah, for plaintiff, appellant.
J.E. M. Obeyesekera, for defendant, respondent.
Cur adv. vult.
August 3, 1938. Maartensz J.—
This is an action brought by an unsuccessful claimant, under theprovisions of section 247 of the Civil Procedure Code, to establish thathe is the owner of the property seized by the judgment-creditor.
The action was brought within the time prescribed by section 247.At the trial, objection was taken to the constitutiqn of the action on theground that the judgment-debtor was not a' party to the action.Plaintiff’s counsel, thereupon, moved to make the judgment-debtora party. The Court held that the application was made too late,. anddismissed the plaintiff’s action with costs.
It is contended in appeal by the plaintiff-appellant that the judgment-debtor is not a necessary party to the action. There is, certainly,nothing in the provisions of section 247 of' the Civil Procedure Codewhich requires that the judgment-debtor should be made a party to anaction brought by an unsuccessful claimant. The only local casesI am aware of, in which the judgment-debtor was held to be a necessaryparty, were in ; (1) a case where a claim in the nature of a Paulian actionis joined to an action under section 247 of the Civil Procedure Code,or set up in a defence to an action under section 247 by a successfuljudgment-creditor ; (2) where the judgment-creditor sought to provethat the judgment-debtor had a title by prescription. The reasons forholding that the judgment debtor was a necessary party in such anaction were in no way connected with the provisions of section 247.
Counsel for the respondent has referred me to the case of Ghasi Ram v.Mangal Chand and another (1905), reported in I. L. R. Allahabad series,vol. 28, page 41. At page 43, the Judges say that “ If an unsuccessfulclaimant brings a suit and he seeks to establish his claim against boththe decree-holder and the judgment-debtor, the latter is of course %necessary party ”. That observation is obiter to the question to bedecided and no reasons are given for it. I myself can see no reasonwhy the judgment-debtor should be made a party to an action broughtby an unsuccesful claimant, for it is quite open to him to admit the titleof the plaintiff, and, on the other hand, it is quite open to the judgmentcreditor, if he so chooses, to consent to judgment after having filedanswer. In the former case, the admission made by the judgment-debtor would not bind the judgment-creditor. In the latter case, thefact that the judgment-creditor consented to judgment would not act asres judicata on the judgment debtor’s title to property.
I am of opinion that the judgment-debtor is not a necessary party to anaction brought by an unsuccessful claimant for the purposes only ofsection 247 of the Civil Procedure Code.
I set aside the order appealed from, with costs in both Courts, andremit the case for re-trial in due course. The costs of the second trialwill be in the discretion of the Commissioner.
PANDITHA v. DAWOODBHOY