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Present: Wood Benton C.J. and De Sampayo J.
RAMAN CfiETTY el al v. MOH1DEEN.
408—D. C. Kurunegala, 5,347.
Action under s. 247 by judgment-creditor against claimant—PrecripUtcpossession of judgment-debtor.
In os action under Motion £47 of the Civil Procedure Code against asuccessful claimant the judgment-creditor cannot prove the titleby prescription of the judgment-debtorunless thejudgment-
debtor is a party to the action.
fJtHE facte are set out in the judgment.
A. 8t. V. Jayewardene (with him M. W. H. de SUva), fordefendant* appellant.
Bawa, K.& (with him Keuneman), for plaintiffs* respondents.
December 8a 1015. Wood Renton C.J.—
On August 24, 1002, Caruppen Chetty obtained a mortgagedecree against Noor Saibo and his wife, Asiya Uroma, in DistrictCourt, Kurunegala, No. 2,143, for Rs. 4,725. Caruppen Chetty died*and the respondents were substituted as plaintiffs on the record.Writ issued in the case on February 10. 1012, for* the judgmentdebt and interest, which in the interval had nearly doubled itself inamount. The mortgage and other properties were seized and sold,and a sum of Rs. 6*718.50 was realised thereby. A balance of twothousand odd rupees remained due* and the respondents seizedcertain other lands with a view to its recovery. The appellant
* 19 M. S W. m.* (I«W) 5 Tam. IS?.
* (1908) 1 A. C. B. 48.
•*( 479 )
claimed, two of the allotments, A and B. His claim was upheld, 1M5.and the respondents thereupon brought this action, under seo$on vfooo247 of .the Civil Prooedure'Code, to have Hie lots in question declared Bmatom c«r.executable under their decree* Both ,the respondents and* the' Ramanappellant pleaded prescriptive title, and an issue ae to Jhe prd* SS&JL.sorptive title of the latter was framed at the trial. There was,however, no issue as to the alleged prescriptive title bt the former.
The learned District Judge held that the respondents had establishedtitle by preemption through Noor Saibo, one of die judgment-debtors, and entered up decree in their favour as prayed for in theplaint. Hence this appeal.
It was decided by the Full Court in Termvnanse v. Menika 1 * thatit is not competent for a plaintiff or for a defendant to set up athird person's title under seotion 8 of the Prescription Ordinance,
1871, * but that the possession to be proved must be that ofa party to the suit or of his predecessor in title, and that thejudgment to be given under that seotion must be declaratory ofthe right of a party to the action, not of a stranger. In PedroCosta v. Fernando3 Sir Joseph Hutchinson C.J., expressed the*opinion that, in an action under seotion 247 of .the Civil ProcedureCode, the execution-creditor may prove the prescriptive rightsof the execution-debtor to the property, and that, for that purpose,the execution-debtor may be added as a party plaintiff or party,defendant, as the case may be. In Pedro Costa v. Fernando* theexecution-debtor was in fact the first defendant to the action. Inthe later case of David ». Ibrahim4 Mr. Justice Granier and I heldthat the onus of bringing a third party, on whose prescriptivepossession it was proponed to rely, into the proceedings rested onthe plaintiff or the defendant, as the case might be, by whom suchtitle had to be established. Now, here, Noor Saibo was only madea party to the proceedings in the District Court. On the contrary,as I have already mentioned, although the plaint set up title byprescription, no issue was framed in support of the allegation. In' these circumstances the rule laid down in Terunnanse v. Menika 1applies, and the respondents9 action fails. Their counsel invitedus. to have the decision in Terunnansa v. Menika1 reconsideredon tixe ground that that case was decided at a time when theprevalent view of the Courts was that the Prescription Ordinance,
1871, 8 was an enactment of limitation of suits, and did not con-template the acquisition of title. But I do not think that we oughtto accede to this suggestion. The language of seotion 3 of thePrescription Ordinance, 1871, make it quite clear that it is only , thepossession of the plaintiff or the defendant, or of some partyunder whom the plaintiff or the defendant claims, that can berelied upon for the purpose of establishing title by prescription. On
i (1896) 1 N. Xi-r K. £09.
* No. ££ of 1871.
3 (1908) 22 AT. L. R. 210.« (1910) 13 N. L. R. 318.
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1WA* these grounds I would allow the appeal, and direct decree to- be.entered up dismissing the respondents’ action, with the costs otRboton C»J. the potion and of th% appeal. v
•Da Sampayo J.—
* The plaintiff obtained a decree for money in a previous actionagainst one Noor Saibo and his wife, Asiya tJmma, and seized acertain land In execution. Upon that seizure the defendant suc-cessfully churned the land as his properly. The plaintiff has broughtthe present action, under section 247 of the Civil Procedure Code,to have it declared that the land was the property of his judgment-debtor Asiya Umma, and was liable to be seized and sold -underJiis degree. The District Judge has found on the evidence that,though the defendant had good documentary title, Noor Saibo-has-hed prescriptive possession, and he has given judgment in favour ofthe plaintiff. The District Judge has not noticed that the plaintiff'^prayer is that Asiya Umma be declared entitled to the land. But inthe view I take of the case the distinction need not be furtherconsidered.
The objection taken on behalf of the defendapt-appellant, that -’ the plaintiff cannot seek to depend on the prescriptive title of hisdebtor, is entitled to succeed. The point is covered by the authorityof Terunnanse v. Menika1. The defendant might possibly beprecluded from raising the question, if an issue as to the prescriptiveright of Noor Saibo had been stated at the trial and evidence hadbeen allowed to be given on such an issue without objection. Butno such issue was stated, and evidence of possession was given onlyincidentally in the course of proof of title. Again, though an actionunder section 247 of the Code is primarily between the execution-creditor and the claimant, this Court has recognized the proprietyof adding other necessary parties according to circumstances underthe provisions, of section 18. For example, if the case involves thedeclaration that a grant by the judgment-debtor to the claimantis fraudulent and void, the judgment-debtor may be added as aparty. Haramanis t>. Haramanis. 9 A more direct authority on thespecific question raised is that of Pedro Costa v. Fernando8, in whichit was decided that in an action under section 247 the plaintiff asexecution-creditor might well prove his judgment-debtor's prescrip-tive. tiili, if the latter were joined even as a defendant. In tinscase, however, Noor Saibo is not a parly at all. A suggestion -wasmc.de on behalf of the plaintiff that we should Bend the case- backfor the purpose of joining Noor Saibo, and for further proceedings.But 1 do not think that the circumstances of the case justify suchan indulgence being granted at this late stage.
.T think the judgment appealed from should be set aside, and theplaintiff's action dismissed, with costs in both Courts.
» (MS) 1 N. L. R. SCO.3 (1907) 10 AT. L. A.
3 (ISOS) 11 N. L. A. m.
RAMAN CHETTY et al. v. MOHIDEEN