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RAMALINGAM o. KURUKAL.D. G., Jaffna, 24,021.
Costs in claim inquiry—Execution-creditor when not liable.
In an inquiry into a claim in execution it appeared that the judg-ment-creditor had neither pointed out to the Fiscal for seizure theland claimed, nor directed him to seize it, and that, although heattended the inquiry, he took no active part in it.
Held, that he was not liable in the costs of the claimant, althoughthe latter was successful.
N this case the Fiscal seized on a writ certain land pointed outfor seizure by the judgment-debtor. A claim was preferred
to it, and the same was, under section 241 of the CivilProcedure Code, reported by the Fiscal to the District Court.The judgment-creditor took no part in the inquiry held by theCourt. The District Judge directed the release of the propertyfrom the seizure, and condemned the judgment-creditor in theclaimant’s costs. The judgment-creditor appealed from the partof the order condemning him in costs. The case came on beforeBonser, C.J., and Withers, J., on the 10th October, 1893; and
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their Lordships held that no appeal lay from the part of the orderas to costs,* but being of opinion that the judgment-creditor shouldnot, in the circumstances, have been condemned in costs, orderedthat the case be remitted to the District Judge with directions tohim to make any remarks regarding it that he might think proper,and, with notice to all parties, to send the case up again to be dealtwith in revision. The case was so dealt with on the 7th November,1895, when the following jndgment was delivered.
It is very clear that the order made by the learned Judge inthis claim inquiry cannot stand.
The District Judge has condemned the judgment-creditor topay the costs of the investigation.
But as far a s we were able to see, the judgment-creditor was noparty to the proceedings, and it is proved that it was not he whopointed out the land seized to the Fiscal, nor was it he who directedthe Fiscal to seize it. Though he attended the investigation hetook no active part therein either on the side of the judgment-debtor or on that of the claimant.
He has therefore done nothing which renders him liable to besaddled with the costs.
The order is consequently quashed.
Browne, J., agreed.
See V01.1., p. 355.
RAMALINGAM v. KURUKAL