( 345 )
Present : De Sampayo J.
RUPASINGHE v. FERNANDO.35 and 36—0. B. Kalutara, 7,615.
Judgment against a minor—Seizure of propertyunder writ—Claim
unsuccessful—Actionunder s.247, Civil ProcedureCode—May
unsuccessful claimant attack the judgment sought to be executed asinvalid on the ground of minority of defendant?
In an action under section 247 of the Civil Procedure Code by anunsuccessful claimant, the plaintiff and the representatives of thedeceased judgment-debtor attacked the validity of the judgmentsought to be executed on the ground that the judgment-deb torwas a minor.
Held, the judgment entered against the minor, though unrepre-sented by a guardian, was at most an irregularity, and that it wasnot open to a collateral attack. Though the plaintiff was not aparty to that action, he cannot attack the judgment in that casein this action under section 247.
'“J1 HE facts are set out in the judgment.
A. St. V. Jayawardene, for plaintiff, appellant in appeal No. 35.
Bawa, K.C., for added defendants, appellants in appeal No. 36.
Samarawickreme (with him Weeraratne), for the first defendant^respondent in both appeals.
March 28, 1918. De Sampayo J.—
In the action No. 6,157, D. C. Kalutara, the first defendant-respondent obtained a decree for money against one KatirikankangeyStephen, and under a writ of execution issued in that case he causedto be seized on July 11, 1915, one-twentieth share of a certain landand buildings as the property of Stephen, and the sale was fixed forOetober 31, 1916. The plaintiff claimed the said share of land andbuildings by virtue of a deed of transfer executed in his favour byStephen on August 12, 1916. The plaintiff’s claim was disallowed',by the Court, and he brought this action, under section 247 of theCivil Procedure Code, to establish his right to the property. Stephendied before the date of this action, and the added defendants, whoare his heirs, have been made parties to the action. The first defend-ant impeaches the deed in favour of the plaintiff as a fraudulentalienation, and both the plaintiff and the added defendants attackthe validity of the judgment sought to be executed by the first,defendant on the ground that Stephen was a minor.
( 346 )
The Commissioner has on the evidence held that the deed infavour of the plaintiff was executed merely to defraud Stephen'screditors, and I see no reason to disturb that finding. With regardto the judgment in the previous case, the Commissioner has heldthat, if the judgment is invalid for the reasons stated, the propercourse is to take steps in that case to have it set aside, and not toraise the question incidentally in this action. This view, so far atleast as the added defendants, who are Stephen’s representatives,are concerned, is, in my opinion, quite sound. It is section 480 ofthe Civil Procedure Code that should be availed of for that purpose.But Mr. A. St. Y. Jayawardene, for the plaintiff, contends that asthe plaintiff would have no status in that action, he should be allowedin this action to impeach the validity of the judgment, and he citesCornells v. Carolis1 and Pedrupillai v. Manuel.2 These decisionswere concerned with the question whether it was open, in an actionunder section 247 of the Code, for the claimant in execution toimpeach the decree sought to be executed on the ground of fraudand collusion, and the question was answered in the affirmative.The Indian decisions on that point are conflicting. See Gulibai v.Jagannath Galvankar3 and Naranayyan v. Nageswarayyan* What-;ever may be the'right view with regard to a judgment obtained byfraud and collusion, X do not think that the analogy of the decisionsrelied on applies to a judgment entered against a minor. When ajudgment is found to be obtained by fraud and collusion, it must betaken to be void ab initio. and there is, therefore, nothing to executeas against a claimant from the ostensible judgment-debtor. Thecharacter of a judgment against a minor is substantially different Evenif the* judgment-debtor is found to be a minor, it does not followthat the judgment is ipso facto void. In Muttu Menika v.Muttu Menikas I had occasion to consider the law relatingto the subject, and I came to the conclusion that a judgment enteredagainst a minor, though unrepresented by a guardian, was at mostan irregularity, and that it would stand as a valid adjudicationuntil reversed, and was not open to a collateral attack. X have noreason now to consider that opinion to be wrong. I therefore thinkthat the judgment in the previous case remains as a valid andexecutable judgment even as regards the plaintiff.
The appeals are dismissed, with costs.
1 (1912) 6 Leader Rep. 94.81. L. R. 10 Bom. 659.
* (1917) 4. G. W. R. 356.* I. L. R 17 Mad 3$9.
5 (1915) 18 N. L. R. 510.