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SILVA v. MEXDIS.
D. C., Galle, 5,342.
Civil Procedure Code, ss. 247 , 363—Act-ion by claimant in execution—Refusalof Court to stay sale pending result of trial—Sale of property before trialof claimant's action—Proper course to fnlltnr ir'hen claimant's title is good.
Where plaintiff's immovable property has been wrongfully seizedunder a writ, in execution of a judgment in favour of a third party, and,the plaintiff sues the execution-creditor, but before the case comes on ‘for trial the property is sold under the defendant’s writ,—
Held, that plaintiff is entitled to a declaration that at the date of theaction the propeaty was not liable to be sued and sold in execution ofthe defendant’s writ, so as to leave the plaintiff to have such benefit from-the declaration as he could.
Abdul Coder v. A nnamalay. 2 N. L. II. 166. explained.
CTION that four-fifths of a house be declared not liable .to be
appeared that the hotise belonged to one Andris, who died in-testate. leaving him surviving his widow and five children, oneof whom w'as Carolis alias Kaluappu. The widow died intestate,and each of her children inherited one-fifth of the ’house. All ofthem, except Carolis, by deed dated 6th February, -1896, purported'to convey nine-tenths of the house to Andris, who, by deed dated12th June, 1896, conveyed the same to plaintiff.
Defendant, having obtained judgment against Carolis in suitJ4b. .3,820 of the District Court of Galle, pointed out for seizure aridsale in execution four-fifths of the house as the property of Carolis.Plaintiff, having unsuccessfully claimed it, sought now to establishhis title to it under section 247 of the Civil Procedure Code, and torecover damages consequent upon the disallowance of his claim.
The District Judge (Mr. F. J. de Livera) held as follows: —
“ Though at the date of the cause of the present action plaintiff waseptitled to four-fifths of the house, yet after plaintiff’s claim wasdisallowed and before the trial of the present case, the propertyclaimed by plaintiff was sold in execution under defendant’s writin D. C.. 3.820, notwithstanding the institution of thi§ suit. Inthese circumstances, what order am I to make ?
“ BonseivO.J., in D. C., Kandy. 7.816 (3 N. L. R. 166)', held thatthe words in section 247—‘the right which he claims to the propertyin dispute’—means not his right to, the property, but the rightwhich he claims in the execution proceedings, namely, the right tohave the property released from seizure. Bonser, C.J., furtherheld that the prayer in an action under section 247 should be that
sold in execution of defendant’s writ, and for damages. It
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plaintiff is entitled to have Idle property released from seizure andto have an order on the Fiscal to release the same.
" But the seizure being now merged in the sale, how can 1 declareplaintiff entitled to have the property released from seizure andorder the Fiscal to release the same ?
" I therefore dismiss this action. Parties will bear their owncosts. ”
the plaintiff appealed, praying for judgment in his favour. Thedefendant also appealed for payment of his costs.
H. Jay award enc. for plaintiff.—The District Judge ought tohave declared that the seizure and sale complained of was bad. Insuch a case the purchaser would get nothing (Britainy v. Sobine,1 De G../. 666: Hukm t'hund on Hex ■ludicala, /». 682).
[Bonser. C.J.—He decree would not bind the purchaser.]Without such a declaration, plaintiff cannot sife the Fiscal or thepurchaser. [Bonser, C.J.—T am inclined to think that you areentitled to a declaration for what it is worth.]
Van Langenberg, for defendant,Plaintiff cannot have such a
declaration, Abdul Cader v. Annamalay (2 N. 7.. R. 166) barssuch a course. Plaintiff’s only right was to have the propertyreleased from seizure, which however did not exist at the timeof the trial of this action, because the property had then beensold. It is now impossible to give him the relief he prays for.As regards the sale of movables, it has been held in Janies & Co.v. Naichiappan (3 N. L. R. 257): “ If an unsuccessful claimant tomovables does not apply for a postponement, etc.—”[Bonser,
C.J.—Jn that case, the. sale took place before the institution of theaction. Here it is different.]
10th February, 1902. Bonser, C.J.—
This case raises one of the many difficult questions with whichthat part of the Civil Procedure Code relating to the execution of.decrees teems. The plaintiff in this action, which is an actionunder section 247, was the imsuecessful claimant of propertywhich had been seized in execution at the instance of the defendant,who was the execution-creditor of a third person. The ^claimantalleges that his property was seized by the Fiscal at the instance-of the defendant "in order that it might be sold to pay the thirdperson’s debt, as being the property of the third'person. He putin a claim, which was investigated and decided-against- te claimant.He thereupon, within the. fourteen days limited by section 247,commenced this action for a declaration that the property was
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1902. not liable to be seized in execution of the defendant’s writ. AfterFebruary 10. commencing his action he applied to the judge to make an orderBoNSpm.C.J. to stay the sale, which was fixed for three days later. But theDistrict Judge said that he could not do this, and that it was theduty of the plaintiff to apply for and obtain an injunction to staythe sale. As the plaintiff did not apply for and obtain aninjunction, the sale was proceeded with, and the house which wasseized was sold. The plaintiff then applied to the judge to' refhseto confirm the sale, but he declined to do so on the ground thatthis present action was pending. While he declined to do this,the sale was confirmed.
In due course the present action came on for trial. The DistrictJudge held that the plaintiff had proved that the house was hisown and was therefore not liable to be seized and sold under thewrit, but he held that “ the seizure being now merged in the sale,
" how can I declare the plaintiff entitled to have the property■“ released from seizure and order the Fiscal to release same ? I“ therefore dismiss this action. Parties will bear their own costs.Both parties have appealed against this decree, the plaintiff on the •ground that lie ought to have had judgment, and the defendantagainst the order making him pay his own costs, and also on theground that the judge had unreasonably refused to postpone thetrial for the attendance of his witnesses who were not present onthe trial day.
It seems to. me that, when the Judge found that the plaintiff’simmovable property had been wrongfully seized and sold to payanother's debt, he ought to have given the plaintiff judgment inthe action; he ought to have given him a declaration that at thedate of the action the property was not liable to be seized and soldin execution of the defendant’s writ, and left the plaintiff to getsuch benefit from that declaration as he could. It seems to methat, be might bring an action against the execution-creditor forwrongfully causing his property to be seized and sold, or he mightbring an action against the Fiscal for wrongfully seizing andselling his property, for tlys is one of the cases expressly exemptedby section <163 of the Code, which says that where the Fiscal sellsa property other than that of the judgment-debtor under a writrequiring him to sell the property of the execution-debtor, suchseizure and sale is not to be considered an act done in .executionof his duty and protected by law- He might also bring an actionagainst the purchaser at the sale to recover the property. Of courseto each of these actions different considerations would apply. Itmight be that the conduct of the plaintiff might furnish defencesto some of these actions and not to others. Tt might be, for
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instance, that the purchaser might say: " You by your conduct led 1902.me to believe that this was a proper sale, and I purchased the Fetmgiyproperty on that footing. You are estopped by your conduct from bonshb, C.J.disputing the sale which took place in my favour. ” In the sameway the Fiscal might possibly be entitled to say: “ You by yourconduct allowed me to believe that this was the property of theexecution-debtor, and in that bond fith belief I sold the property,”in which ease, if he could prove that, he would be protected bysection 863 to which I have referred.
But I cannot conceive that any conduct of the plaintiff such asis alleged in the present case, or which can be alleged against him,could justify the execution-creditor in retaining his money, theproceeds of the sale of the property on which the execution-creditor had no lien, and to which he could not possibly have anyclaim. Mr. Van Langenberg referred us to a case of Jamra v.
Naohiappen in 3 N. L. B. 257, and said that even if it wereunjust that we should allow the execution-creditor to retain thismoney, yet we were bound by the decision in that case and mustfollow it; but it wall be seen that the facts in that case are quitedifferent from the facts in the present case. In that case the salehad taken place before the action under section 247 was com-menced, and both the judges who decided that case laid great stressupon that point. But the present case is distinguishable fromthat. At the same time, if that case comes before a duly con-stituted Court able to over-rule that case, I hold myself quite atliberty to express an adverse view to the principle on which thatcase was decided. But it is sufficient to us for the presentdecision that it does not cover the present action.
I have no doubt the plaintiff would have been better advisedif he bad at the time of commencing his action applied for aninjunction under section 87 of the Courts Ordinance for restrain-ing the execution-debtor from proceeding with the sale, as beingan act in violation of the plaintiff’s rightsinrespectofthe
subject-matter of the action, or as tending to render the judgmentineffectual. He did not do so, but that, it seems to me. cannot,affect his rights as between himself and this defendant.
The obvious result of our view would be to allow this appeal ofthe plaintiff, but we have also to considertheappealofthe
defendant. There was no evidence calledonbehalfofthe
defendant, owing to reasons which are stated in an affidavit whichwas filed by him on the day of the trialinsupportofthe
application for a postponement of the trial.TheDistrictJudge,
without giving any reasons, refused the application, and proceededto decide the action forthwith. I do not say that, if proper
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reasons had been given which we could appreciate, we shouldFebruary 10. have interfered with the discretion of the judge, but no reasonsBonsbr, c.j. were given why, in the face of this: reasonable application of thedefendant, it should not have been’ acceded to, and that it wasreasonable would seem, to be shown by the fact that the plaintiffwas willing to consent to the. postponement. The defendantwas quite willing to pay the costs- of the day. I think, therefore,that on his paying the costs of the day the case should be s'entback for a new*trial.
I agree with, the decision just, pronounced by the Chief Justice,and I also agree in his remarks upon the case quoted from3 N. L. R. 257. The learned- judge appears to have, as I think,misunderstood the effect of the Chief Justice's decision in D. C..Kandy, 7,816,reported in 2 N.L. R. 16.7, in that he regarded
that case as deciding that if there had been a sale of the propertyseized by thetimethe actionunder section 247 cameon for
trial, no effective judgment in- the claimant’s favour could bepassed under that action. But I think the plaintiff is entitled tohave his right declared as at the date, at which he brings thisaction,—to have, in short, a declaration that the property seized isnot liable to be sold in execution, but must be released freonseizure. It- may be that, owing to the sate, of the property in theinterval, the value of that- declaration .may be abridged or takenaway altogether as against the creditor or the purchaser or theFiscal, as the case may be, but he is entitled, to have the declarationand to enforce, suchright as hemay have on that footingagainst
the parties Ihavementioned,or some of them. A.ndsuch a
declaration I think the plaintiff is entitled to get, if he shows thathe is the owner of the property and not the execution-debtor.
SILVA v. MENDIS