( 195 )
SILVA v. K1RIG0RIS.
C. E., Galle, 2,397.
Civil Procedure Code, ss. 241, 243, 241—Land seized in execution of judgment—Purchase of such land from persons other than execution^debtor—Rightof such purchaser to prefer claim under s. 241, or to maintain actionunder s. 247, upon disallowance of his claim.
A person who had purchased a land after it had been seized inexecution is not entitled to prefer a claim nnder section 241 of theCivil Procedure Code, or upon the disallowance of such a claim tomaintain an action under section 247 to establish his right to theproperty.»
N this action the plaintiff sought to have" seven-eighths ofa land released from seizure * made uhder a writ of execution
issued by the defendant in case No. 1,979 against one Princina-haroy and -Jayasingbe.
( 196 )
The laud was seized on the 27th June. I'JtH. and the plain jiff,having bought seven-eighths of it- on the 29th June. 1901. fromcertain persons other than the execution-debtors, preferred hisclaim'in that case on the 10th July 190|. Tt. v,-;ts disallowed onthe 29th January, 1902. Hence the present action.
The Commissioner (Mr. J. D. Mason) held that, as the plaintiffhad purchased the land two days after the seizure, he had nointerest in, and was not possessed of, the land at the date of theseizure, and could not therefore maintain an action under section247 of the Procedure Code.
The plaintiff appealed against the decree of dismissal. .
The case came on for hearing oil 81st March, 1903.
H. J. C. Pereira, for plaintiff, appellant.
Jayawardene, for defendant, respondent.
Cur, ado- vult.
6th April. 190?!. Wkndt, J.—
The question in this case is whether a man who purchasedland after it was seized in execution can prefer a claim undersection 241 of the Civil Procedure Code, or. upon the disallowanceof such a claim, maintain an action under section 247.
The present defendant issued a writ of execution against onePrincinahamy and one Frederick Jayasinghe, and thereuponthe fiscal seized the entire land on 27th June, 1901. andadvertised it for sale on the 28th July. The present plaintiffon thd 29th June, 1901, purchased from four persons unconnectedwith the judgment-debtor seven-eighths of the premises, exclusiveof one-third part ofthe planter’sshare. He preferreda claim
on l()th July. .1901. to the seven-eighths share which claim theCourt- disallowed on 29th July. 1902. He then brought thepresent action. TheCommissionerdismissed it withcostson
the ground that atthe date ofseizure the plaintiffhadno
interest in, and was not- possessed of. the property seized.
In appeal it wasargued for the ’plaintiff that thewordsof
section 241 " seizure or sale ’’ contemplated the possibility ofa persoji being entitled to fesist the sale, although unable toobject to the 'seizure. That may he true: but reading thatsection with sections ‘4,43 and 244, I think it-' is quite clear thatthe claimant s or olfjeetofs rights must in every case be referredto the date of seizure. It was also argupd for the appellant thatjust as in an action under sectfon 247 the plaintiff may succeedon the question of title, although* upon the„ claim inquiry he wasrightly defeated on the question of possession, so the plaintiff
( 197 )
may succeed in the action on a title which he acquired sub-sequent to the seizure; but here again the title which has tobe adjudicated upon is the title as it stood at the date of seizure.
I agree with the opinion of Withers, -T., in the case of lVijey:wardane v. Maitland (3 G. L. B. 7) that the phrase " right toproperty ” in section 247 must be construed to mean such rightas the claimant or objector was entitled to set up under section243. See also the case of Abdul Gader v. Annamalay (2 N. L. B.166).
In the case of Harishankar Jebhai u. Naran Karan (Z. L. R.18, Bom. 260) the claimant had succeeded* in having theattachment of the land removed, and, when the decree-holderbrought his action under the enactment corresponding to oursection 247, pleaded that he had acquired a prescriptive titleto tiie land. It appeared, however, that the prescriptive termhad only run out subsequent to the attachment, although priorto the institution of the action. The High Court held that theaction, being in effect one to “ set aside ” the order directing theremoval of the attachment, must be determined according to therights of parties at the date of the order. That is to say, injudging whether the order was right or wrong, you cannot takeinto account some right which accrued subsequently to the dateof the order, something which the Court had not and could nothave had before it when it passed the order. Similarly, injudging whether the seizure was right or not, the claimant cannotbe heard to say it was wrong because of some right of his whichdid not accrue to him till after the seizure was effected. I thinkthe decision of the High Court would have been the same if theprescriptive period had been completed prior to the date of that,order if only it was still subsequent to .the date of .the attach-ment.
However, whether my reading of this Indian decision iscorrect or not, I think the construction of our own Code isquite clear, and it is opposed to a well-established principle torecognize any .change of the rights of parties after the subject-matter has once become in custodia ley is. The Commissionerwas right in deciding for the defendant, and I therefore dismissthe appeal with costs.
SILVA v. KIRIGORIS