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Present: Mr. Justice Wood Benton and Mr. Justice Grenier. June 13,1910PASSE v. ALVARES.
D. C., Colombo, 22,792.
Seizure of adecree—Claim under s.941,CivilProcedure Code.
No claim under section 241 oftheCivilProcedure Codecanba
made where a judgment-creditor seizes a decree in favour of thejudgment-debtor.
HE facts of this case are set out in the following judgment ofthe learned District Judge of Colombo (H. A. Loos, Esq.): —
The execution-creditor has seized a sum of money sufficient tosatisfythe amountof hiswrit out of the money duetothe judgment-
debtors in a decree entered in action No. 15,231 of the Court ofBequests of Colombo.
The claimant is the incumbent of the Church of Our Lady of GoodDeath, andclaimsthe propertyseizedasthat belongingtothe
Theaction No.15,231of the Court of BequestsofColombo was
instituted bycertainpersons who,purportingto be trusteesofthe
church, had leased it to the defendant in that case to recover the rentdue under the lease.
Judgment was entered in their favour, and the execution-creditor inthis casehas seized somuchof the amountdueto the plaintiffs—inthe
Court ofBequests caseNo.15,231, as willbesufficient to satisfyhis
writ, which is forthe recovery ofthecosts due' tohim—the plaintiff's
action having been dismissed.
The plaintiffs in this case are the same persons who were the plaintiffsin the Court of Bequests case. In this case they sued the defendant,purportingto be trustees ofthe Church ofOurLady of Good Death,
for the recovery of Bs. 1,082, for a declaration that they are entitledas suchtrustees tothepossession ofcertain property, andfor
It was held thattheplaintiffswerenottrusteesof the church in
question in terms of the Ordinance No. 5 of 1864, and that they weretherefore not entitled tosue thedefendantin thisaction, and their
action was dismissed with costs.
Now,in the Court of Bequests action No. 15,231 the plaintiffs
recovered judgment on behalf of the church, and admittedly theamount when paidwillbelong not totheplaintiffspersonally, but to
the church in question.
In this case the costs are payable by the plaintiffs personally—thereis no liability on the part of the church in question to pay those costs—.in view of the finding in this case that the plaintiffs are not the onlyconstituted trustees of that church.
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July 13, 1910
It seems to me,therefore, thatthe amount of thejudgmentinthe
Court of Bequests case cannot in any way be seizable in satisfactionof thedecree inthis case. It has,I havestated, beenheld thatthe
church in questionhas not beenbroughtwithin theoperationofthe
Ordinance No. 5 of1864, so that there areno trusteesto prefera claim,
and in my opinion the incumbent of the church, in the absence of anyother person, is entitled to make the present claim.
A preliminary objection was taken by the execution-creditor'sproctor, that what has been seized is a cbose in action, and that section241 ofthe Codedoes not warn 1, aclaim where a choseof actionhas
Theredoes not appear to me tobe anysubstance inthe objection:
in this case what has been seized is a part of an earmarked amount,due by the defendant in the Court of Bequests action No. 15,231, andwhieh is now inthe possessionof thatdefendant,on behalfofthe
church, of which the claimant is the incumbent.
The claim is upheld with costs.
Thejudgment-creditor (Passe) appealedagainst theorder ofthe
Sampayo, K.C., for the appellant.
Scneviratiia (with him Samarakoddy), for the respondent.
Cur. adv. vv.lt.
July 13, 1910. Grenier J.—
The facts are fully stated in the judgment, of the District Judge.It appears that the appellant was sued in action No. 22,792 of theDistrict Court of Colombo by three persons, who described them-selves as the trustees of the Church of Our Lady of Good Death, tobe declared entitled to certain premises situated in the Pettah ofColombo. The action was dismissed, and the plaintiffs thereinwere ordered to pay to the appellant his costs, which were taxed atRs. 742.24. Subsequently the three persons I have referred tcsued one T. Charles Perera Patnasekera in action No. 15,231 ofthe Court of Requests of Colombo, and obtained judgment againsthim for the sum of Rs. 214.26, with interest and costs. In executionof this decree for costs, the decree in the action No. 15,231 wasseized in terms of section 229 of the Civil Procedure Code. Therespondent, who alleged that he was the incumbent of the saidChurch of Our Lady of Good Death, claimed the amount due underthe decree, and his claim, after investigation, was upheld. Theappellant has appealed on. the ground that section 241 and thesubsequent sections of the Civil Procedure Code were not applicableto the seizure of a decree, and that they were intended to apply tothe seizure of chattels only. In my opinion this contention isentitled to succeed. . The phraseology employed in sections 241 to252 clearly shows that they were intended to apply to chattels only,that is, to movable property that the Fiscal can touch, so to speak.
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and lay his hands on. The heading above these sections is “ Claims July 13,1910to properly seized,” and section 241 makes special mention of omm .t“ movable or immovableproperty.” The heading above sectionsp^~v
227 to 240 is '* Modeofseizure,” and section 227 says “ ifthexteorw
property sought to be seized and sold, &c., is movable property inthe possession of the judgment-debtor other than the propertymentioned in the first proviso to section 218, the seizure shall bemanual.” According to section 234, which applies specifically todecrees and the modeofseizure, if the property is a decreefor
money passed in favourofthe judgment-debtor, as in this case,the
seizure shall be made by an order of the Court directing the proceedsof the former decree to be applied in satisfaction of the latterdecree. No distinction is apparently made in section 236 between“ movable property,” the seizure of which is necessarily manual,and property which cannot in the nature of things be so seized.
Now section 241 places movable and immovable property on thesame footing so far as claims to them and their investigations areconcerned. Looking, however, to the provisions of section 234, it. is difficult to hold that there can be any claim or investigation inregard to a decree as there is in regard to chattels, for this sectionsays that the seizure shall be made by an order of the Court directingthe proceeds of the former decree to be applied in satisfaction of thelatter decree. How can there be in these circumstances any claimand investigation under section 241 and the succeeding sections,or how can it be said that the claimant is in possession of the decreethat is the subject of seizure? The term “ possession ” may wellbe applied to movable property, the seizure of which as directed insection 218 is manual; but it certainly has no meaning, when itis used with' reference to a decree of Court. In my opinion thedecree should not have been seized under section 229, as was wronglydone, because that section does not refer to the seizure of decreesat all, but to debts not secured by a negotiable instrument, toshares in the capital of any public company or corporation, and toany other movable property not in the possession of the judgment-debtor, except property deposited in or in the custody of any Court,or in the custody of a public officer. This section prescribes themode in which the sequestration or seizure shall be made. Whenwe turn to section 234 we find that special provision is made forthe seizure of a money decree in favour of the judgment-debtor;sc that it is clear that the seizure in the present case should nothave been made under the provisions of section 229, but that itshould have been made under those of 234. However that may be,
I think there can be no doubt that sections 241 and the followingsections contemplate claims to movable property in the sense thatthe seizure of it is necessarily manual, and not to decrees of Court,for which, as I have already pointed out, special provision is madein section 234.
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July 13,1910 j may that in mv experience on the Bench of the DistrictGbenieb J. Court of Colombo I have never had a case where the subject ofPasse v °^a^m and investigation has been a decree of Court. Claim inquiriesAlvares have been directed to tangible movable property (and immovableproperty), and this is the first time that a claim of the presentnature has been brought under my notice. I would set aside theorder of the District Judge dated February 28, 1910, and allow thisappeal -with costs, dismissing t e respondent’s claim.
Wood Benton J.—I concur.
PASSE v. ALVARES