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Present: The Hon. Mr. A. G. Lascelles, Acting Chief Justice, andAir. Justice Middleton.
TAMEL et al. v. PALANIAPPA CHETTY.
D. C., Chilaw, 3,311.
Action under section 247—CivilProcedure Code—Scopeofsuchaction—
Title—Inquiry into claim—Possession—Consenting to dismissal of claim.
In an action under section 247 of the Civii Procedure Code by anunsuccessfulclaimant, he isentitledto. rely on .histitleto the
property in dispute, whether as owner or lessee, for the purpose ofhaving it. released from seizure.
Judgment of Perera A.J. in Abeyratne v. 'Suppramanian Chetty (1)followed.
Where aclaimant consentsto hisclaim beingdismissedon the
ground jhatthe judgment-debtor isin possessionoftheproperty
claimed, he is not debarred thereafter from bringing an action undersection 247 based on title to have it declared that the property isnot liable to be seized and sold under the judgment-creditor’s writ.
HIS was an action under section 247 of the Civil Procedure Codeby an unsuccessful claimant against the execution-creditor. At
the inquiry into the claim the claimant “ consented to the claim being
(1) (1905) 2 Bal. 33.
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dismissed with costs, as defendant was in possession and, as claimantintended to bring an action under section 247 to decide the questionof title.” Thereupon the Court dismissed the claim with costs.
The claimant having brought this action under section 247, thejudgment-creditor pleaded that the dismissal of the claim, with theoonsent of the claimant, operated as res judicata. The DistrictJudge (W. L. Kindersley, Esq.) having over-ruled the objection andentered judgment for the plaintiffs, the defendant appealed.
H. J. C. Pereira (with him A. St. V. Jayewardene), tor the appellant.—The order of the District Judge is wrong. The plaintiff by con-senting to the claim being dismissed concluded that the propertywas liable to seizure; and he cannot dispute that in an action undersection 247, whether he relies on possession or on title [D. C., Galle,3,065, (1)]. In an action under section 247 the question involved pri-marily is one of possession, just as at an inquiry. An action undersection 247 is not one for declaration of title, and no question of titleis involved. The scope of an action under section 247 has been fullydiscussed in several cases, and it has been laid down that the ques-tions at issue in the action are the same as those at the inquiry. Hecited Abdul Gader v. Annamalay (2); Samaranayeke v. SidembremGhetty (3); Muppurale v. Sidambram. Chetty (4).
Bawa, for the plaintiffs, respondents.—The question whether theorder of dismissal of the claim is res judicata or not depends upon theconstruction of section 247. If in an action the only question is oneof possession, then the order may operate as an estoppel; but if thescope of the action is wider and title could be relied on, then the orderis not res judicata. It is submitted that in an action under section247 a plaintiff may prove title, which would entitle him .to have theproperty released from, seizure; and he is not confined to possessionalone, as at an inquiry. In an action the scope of investigation isenlarged, and a plaintiff may rely on possession or title. The onlyevidence which a claimant can adduce at an inquiry is evidence ofpossession; and if is he is unable to adduce such evidence,-he-may con-sent to the claim being dismissed, without prejudice, to his right tobring an action under section 247 based on title. He cited Abey-ratna v. Suppramanian Chetty (5); Ponnambalam v. Parama-nayagam (6).
H. J. G. Pereira, in reply.
Cur. adv. vult.
1) S. C. Min. February 9, 1896.
(1896) 2 N. L. R. 166.
(1903) 6 N. L. R. 354.
(1904) 4 Tambayah, 56.
(1905) 2 Bal. 33.
(1905) 9 N. L. R. 48.
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18th October 4 1906. Lascelles, A.C.J.—
This is an appeal from a judgment of the District Court of Chilawallowing the plaintiff’s claim in an action under section 247 of theCivil Procedure Code.
It appears that at the claim inquiry the claimant’s Proctor, beingunable to dispute the possession of the defendants, consented tothe claim being dismissed as the claimant intended to bring anaction under section 247 to decide the question of title.
The appellant now oontends that the admission of the claimantthat the lands were in the possession of the defendants debars himfrom succeeding in an action under section 247.
In support of this contention the appellant cites a judgment ofSir A. Lawrie in 23 D. C., Galle, 3,065 (unreported) which appearsto bear out this contention. This judgment is however very brief,and I am unable to follow the reasoning on which it is based.
The decision of the question now before us depends directly uponthe view which is taken of the scope of an action under.section 247.
If the only question involved in an action under this section is oneof possession, the appellant is concluded by his admission in theclaim inquiry that the property was in the possession of the defen-dants. If, on the other hand, the scope of the action is widerand the matter ip question is the title of the claimant, whether asowner or lessee, the admission of the appellants that the defendantwas in possession would be no bar to their claim.
Authority can be found for both these constructions, but on theconstruction of the section and on consideration of the purposewhich the section is designed to carry out, I have no doubt but thatthe latter view is the true one. I entirely agree with the interpre-tation given to these words by Mr. W. Pereira A.J. in Abeyratnav. Suppramaniam Ghetty (1).
The action when brought by an unsuccessful claimant is to estab-lish the right which he claims to the property in dispute, “ that is tosay,” said the learned Judge, “ if the action is brought by an unsuc-cessful claimant the question involved is whether the claimant hasthat right to the property which he advanced in making his claim
so that when a claimant has claimed the property as. owner
or lessee hi has to establish his right as owner or lessee.”
This construction seems to me 'not only to be the naturalmeaning of the language, but the only one which would give effectto the intention of the section which is to decide whether certainproperty is exempt from execution on the ground that it is not theproperty of the execution-debtor.
(1) (1905) 2 Bal. 33.
Taking this view of the scope of the section it follows that Ikeclaimants, by admitting in the claim inquiry that the defendantwas in possession at the date of seizure, are not debarred fromprosecuting their chum under section 247.
The appeal in my opinion should be dismissed with costs.
Middleton J.—I entirely agree.
TAMEL et al. v. PALANIAPPA CHETTY