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Present: Pereira J. and De Sampayo A.J,YAPAHAM1NE et at. v. WEEBASUBIYA.
458—D. C. Matara, 5,832
Seizure of property in execution—Removal of seizure does not validatean alienation void under s. 288, Civil Procedure Code—Is freshseizure necessary when writ is re-issued 1—Extension of time forexecution applied for by Fiscal—Is application under s. 224necessary l
The removal of the seizure of an; property once seized ip theexecution of a writ does not validate an alienation of the propertywhich was originally void by operation of section 238 of the CivilProcedure Code.
Per Pbbeiba J. (Db Sampayo A.J. dissentiente).—That in the caseof a writ issued on an order on an application expressly made undersection 224 of the Code, it is necessary that in terms of section 226there should be a proper seizure of the property of the judgment-debtor on the particular writ so issued. A seizure on a prior writcannot be availed of for the purpose of the sale of the property.
When a Fiscal having seized property under a writ sends it to.the Court for an extension of the time allowed for execution, anapplication under section 224 is not necessary. All that the Courthas to do is to make an order extending the time and return thewrit to the Fiscal to continue execution.
'J'HE facts are set out in the judgments.
A. St. V. Jayewardene, for plaintiffs, appellants.
Allan Drieberg, with him Canekeratne, for first defendant,respondent.
Cut. adv. vult.
March 12, 1914. Pereira J.—
The subject-matter in dispute in this case is a 239/896th shareof the twb parcels of land described in the plaint. For the purposesof the contention in this case Charles William may be taken to havebeen the original owner of the share in claim. On a writ againstCharles William the share was seized on August 9, 1911, and eventu-ally sold to the first defendant on March 12, 1912. The seizure wasduly registered, but between the seizure and the sale by the Fiscal,that is to say, on February 22, 1912, Charles William conveyed theland to the plaintiffs. It has been said that the conveyance infavour of the plaintiffs was not a “ private alienation, ” and it wastherefore not affected by the provision of section 238 of the CivilProcedure Code. It is not necessary that I should enter into thefacts upon which this contention is based. They are set forth inthe judgment of the Court below, and I need only say that I am in
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entire agreement with the learned District Judge in thinking thatj the conveyance was a “ private alienation/1 and I have no hesitation—-in endorsing the reasons given by him.
Yapalwmine ^ has also been said that the conveyance is saved from theWeerwntHya operation of section 288, because it is a conveyance in pursuance ofan agreement prior to the seizure; but, as to this, it is clear thatthere was no agreement valid and enforceable in law for the convey-ance to the plaintiffs of the share of land in claim.
The point that was most seriously pressed and debated at lengthat the bar was that the writ (a-writ issued in case No. 5,154 of theDistrict Court of Matara) on which the property was seized was notthe. writ on which the property was eventually sold to the firstdefendant. 1 have looked into the record of case No. 5,154 and Ihave found it difficult to discover what really has happened to thewrit on which the property was seized. It is pretty certain that afresh writ was applied for under section 224 of the Civil ProcedureCode on January 23, 1912, for the recovery, 44 by seizure andsale of the property of the defendant/' of Bs. 1,478.90, and in termsof the order on that application a fresh writ was issued on February 2,1912. The amount of this writ included the amount that was"recoverable on the old writ. There was no seizure of the propertyon the new writ, but apparently the Fiscal sold the property inclaim on the footing of the seizure on the old writ. It was arguedthat that could not be done,* and I have no hesitation in saying, thatthe procedure was grossly irregular. In the case of Patheruppillai v.Kandappen 1 I held that the Civil Procedure Code made no provisionfor the re-issue of a writ, and that when a fresh application forexecution, was made under section 224, the proper course was toissue a fresh writ, and in such a case there should, under section 226,be a seizure of property under the new writ. If on an order allowingan application under section 224 an old writ, as a matter of con-venience, is (though irregularly) re-issued on fresh stamps, theproceeding is simply tantamount to the issue of a new writ, and onthe re-issued writ the same steps should be taken anew as those onthe old writ. That ruling is in accordance with what the PrivyCouncil has laid down in the case of Puddomonee v. Boy Muthoora-nath2 There it was held that where a party prosecuting a decreewas compelled to take out another execution, “ his title should bepresumed to date from the second attachment." The ruling I findis also supported by the decision in the case of Ihooboo Sahoo v. RamChum Roy* where it was held that if the judgment-creditor subse-quently applied! of his own accord for a second attachment treatingthe first as non-existent, then the first must be deemed to have beenabandoned. In the present instance, the execution-creditor incase No. 5,154 by making a fresh application for execution under
1 (7913) 75 N. L. R. 298 ; 3 C. A. C. 23.
# 77 TP. R. 577.
* 20 TP. R. 133.
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section 224 of the Civil Procedure Code, 14 by seizure and sale of the *W4.property of the defendant/* applied, .in effect, ad shown above, for a PBusml J*fresh attachment. In the case of Oarpen Chetty v. 8ekappa Ohetty1 r- .cited by the appellants' counsel it does not appear from the report xa^a/^nwthat the re-is8ue of the old writ was based on an order on a formal Weero&uriyaapplication for execution under section 224. I think it is clear thaton a writ issued on the footing of such an order there must be afresh seizure, and that a seizure on an older writ cannot be availedof. It has been said that in the view that I have expressed thereturn of a writ to Court for an extension of the time allowed to theFiscal for the deposit in Court of a recovery made on it wouldnecessitate a fresh seizure. I fail to see how a return of a writ fortlxe purpose mentioned can have that effect. In such a case noapplication under section 224 of the Civil Procedure Code is necessary.
All that the Court has to do is to extend the time and return thewrit to the Fiscal without any further stamps being affixed to it tocontinue the proceedings in execution on it. I think that theappellants’ counsel is entitled to succeed on his contention thatthere has been irregularity in the sale by the Fiscal of the propertyin claim to the first defendant. But the plaintiffs cannot succeed inthis appeal for another reason. A private alienation of propertyafter it is seized in execution and the seizure is registered is, undersection 288 of the Civil Procedure Code, void as against all claimsenforceable under the seizure. The claim of the execution-creditorin case No. 5,154 was a claim that was enforceable under the seizurein question. As has been held in Mahtah Chanrl v. Sumo Moyeerand the other cases cited by O’Kinealy in his commentary on theIndian Code* of Civil Procedure (p. 448), the removal of an attach-ment does not render an alienation made whilst the attachment wassubsisting a valid one. If the Fiscal’s conveyance in favour of thefirst defendant is valid, that conveyance took the place of the firstdefendant’s claim, as against which the alienation in favour of theplaintiffs was void. If the Fiscal’s conveyance is invalid owing toirregularity in the procedure observed, then the first defendant’sclaim still subsists, and the alienation in the plaintiff’s favour istherefore still invalid and the plaintiffs cannot succeed, especiallyin a suit junder the Partition Ordinance, where title as against theworld has to be established. In the case of Mahtah Chand v. SumoMoyee cited above it was laid down, 14 If the Kut-ko-balah (that is,the instrument by which the private alienation was effected in thatcase) was a document which could have not been legally given bythe judgment-debtor at the time it was given because the judgment-debtor had then no power to alienate, it was not afterwards made,valid by the. fact of the property being released from attachment.”1
For the reasons given above, I would dismiss the appeal withcosts.
J (1910) 2 Cur. L. R. 162.
* IS W. R. 222.
De Sampayo A.J.—
The question in this appeal is whether the plaintiffs are entitledas against the first defendant to an undivided 239/896th share of theland in litigation, and it arises under the following circumstances.The land was the subject of a partition action No. 4,220 of theDistrict Court of Matara, to which one Don Samel Wickremeratneand one Don Comelis were parties. The land was ordered to be sold,and was purchased by Don Samel. The purchaser did not pay thefull purchase money, but produced to Court a receipt for Rs. 469.75,being the equivalent of 239/896th share to which Don Cornelis hadbeen declared entitled. It appears that, as a matter of fact, DonCornelis did not receive this money, but that Don Samel by aninformal writing agreed with Don Cornelis that he would, onobtaining from the Court the certificate of sale, transfer to Don■Cornelis the above share of land. Don Comelis in June, 1909,,brought an action No. 4,673 to enforce the agreement, but the actionwas dismissed, as it was brought before the certificate of sale wasissued to Don Samel, who thereafter gifted the land to his' son■Charles William Wickremaratne. In the meantime Don Comelisdied, and in August, 1911, the plaintiffs, who are the widow andchildren of Don Comelis, applied to the Court in the partition actionNo. 4,220 praying that Don Samel and his son Charles William beordered to execute a deed in their favour for the share of land inquestion, and in the alternative they be ordered to pay them thesaid sum of Rs. 469.75. Charles William appeared by proctor andconsented to execute a deed for the share subject to certain condi-tions, and accordingly on February 22, 1912, he executed a deed infavour of the plaintiffs. In the meantime Charles William becameindebted to some third party, and a judgment was entered againsthim in action No. 5,154 on August 7, 1911, for a sum of Rs. 1,000and costs of action. A writ of execution having issued, the saidshare of land was seized by the Fiscal on August 9, 1911, and theseizure was duly registered on August 17, 1911. In pursuance ofthis seizure a sale took place on March 12, 1912, when the firstdefendant became purchaser, and in February 8, 1913, a Fiscal'stransfer was issued to him.
In the above state of facts, the question is whether the deed ofFebruary 22, 191?, in favour of the plaintiffs, which was executed.after the registered seizure, was obnoxious to the provisions of■section 238 of the Civil Procedure Code and was void against thefirst defendant, who was the purchaser at the execution sale.
On behalf of the plaintiffs it is argued, in the first place, that thedeed was executed in pursuance of an order of Court, and thattherefore it did not constitute a private alienation within themeaning of section 238. It may be noted that the applicationmade by the plaintiffs in the partition case was wholly unauthorized,*nd the Court would have no jurisdiction to make any order thereon;
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and the proceedings are distinguishable from the various Indian 1914-
decisions cited on this point. Even if any such order were binding ^
upon the parties to the proceedings, it would not, in nay opinion, A.J.
prejudice the rights of the execution-creditor or the claims enforce- Yapahamine
able under the seizure in question, and would not have the effect of
taking the alienation out of the operation of section 238. However Weera9Ur*y<x
this may be, ill is sufficient to say that the Court, as a matter of fact,.
made ho order -on the plaintiffs' application in the partition case;-
it merely recorded the consent of Charles William to execute a deed,
and the deed of February 22, 1912, was executed voluntarily, and
not in obedience to any order of Court.
In the next place, it is argued that there was no subsisting seizure1at the date of the above deed. This argument is based on the factthat the seizure was effected under the writ issued on August 8, 1911,-but returned to Court in December, 1911, with report of the sale ofcertain plumbago, and that the sale of this share of land took placeafter writ had been issued afresh on February 2, 1912, the contentionbeing that, when the writ was returned to Court and a new applica-tion for execution was made, the old seizure lapsed, and that thereshould have been a fresh seizure under the new writ before any salecould have taken place. I may say that the Court appears to haveintended the writ issued on February 2, 1911, to be a mere extensionof the old writ, for I find that the old writ was sent back to theFiscal with the extension endorsed thereon as follows: “2/2/12.
Writ extended and re-issued on fresh stamps/' From the furtherendorsements on it I find also that this was the writ, extended andre-issued from time to time, upon which the Fiscal acted all alongright up to September, 1913. On the other hand, the document ofFebruary 2, 1912, contained no endorsements whatever as, undersection 370 of the Civil Procedure Code, it should, if that was thesole writ which was acted on by the Fiscal after that date. Theexplanation of the fact of a new document having been drawn upon February 2 appears to me to be that on the original applicationfor writ the plaintiffs' proctor had asked for leave to add to the writthe amount of costs when taxed, and by February, 1912, these costshad been taxed, and so, instead of the amount being added oh theface of the old writ, the full claim, was inserted in the new document,and both the documents together were treated as constituting the*writ in the execution proceedings. This may not be quite regular,but I am not prepared to say that the old writ must necessarily be6aid to have had no operation, notwithstanding its being extendedand re-issued. I regret I am unable to agree with the opinionexpressed in PathetuppUlai v. Kandappen 1 that under the Code awrit cannot be re-issued, and with deference I should say that theexpression “ re-issue *' is intentionally used in the Stamp Ordinanceas a convenient way of conveying the idea that the writ is sent badr
1 (1913) 16 N. L. R. 298.
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to the Fiscal for further execution, subject to its being re-stampedif it has been returned unexecuted for the reasons given in theStamp Ordinance. The point, however, is whether upon suchre-issue a fresh seizure must be effected in order to make a validsale of the property previously seized. The case Periar CarpenChetty v. Sekappa Chetty 1 decided that there was no such necessity <and the same case is an authority for the further proposition that afresh seizure, even if effected, does not operate against the continuedvalidity of the first seizure. This decision is not only binding upon,me, but expresses a view on the point under consideration withwhich, if I may say so, I entirely agree. I do not see any logicalnecessity for holding that if the currency of the writ is ended, aseizure made while it was alive becomes ipso facto dead and inopera-tive, or that a valid sale can be effected only under the same writas the seizure. Reference has been made to section 226 of the CivilProcedure Code, but that merely describes the general duties of aFiscal in connection with the execution of writs, and is, I think, noauthority for saying that the Fiscal must seize property over againevery time a writ is put into his hands. For these reasons, I shouldbe prepared, if necessary, to hold that the Fiscal's sale of this shareof land proceeded upon a subsisting valid seizure and was conse-quently itself valid, and that first defendant has good title. Thereal question in this case, however, is not whether the first defendanthas good title, but whether the conveyance in favour of the plain-tiffs is valid. Section238enacts that a privatealienation aftera
seizure of the propertyandbefore the removal ofthe same shall- be
void as against all claims enforceable under the seizure. Now, inthis case, whether the subsequent Fiscal's sale was good or not, theseizure itself was never removed. Section 239 points out the causesfor removing the seizure and the manner of doing so. There may beother analogous causes, such as abandonment, for considering theseizure as having been tacitly withdrawn without an express orderof Court, but I think that the mere issue of a new writ is not one ofthem. The seizure inthiscase was thus subsisting at the timeof
the private alienation,andthe deed in favourof the plaintiffis
therefore void by operation of section 238. I think the Indiancases cited from 20 W. 'R. 133 and 11 W. R. 517 are distinguishable.In the first of these cases the execution proceedings had been struckoff, and the circumstances of the case led to the presumption thatthey had been abandoned and a new attachment was considerednecessary, and the sale took place under the new attachment.Similarly, in the second of the above cases, the execution proceedingshad been struck off, and the Court held that if that was done with theconsent of the judgment-creditor, or if he subsequently applied fora second attachment considering the first attachment was non-existent, the first attachmentwould be deemed to have been
1 (1910) 2 Cur. L. R. 162.
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abandoned, and the Court remanded the case for further investiga-tion as to the circumstances under which the execution proceedingswere 6truok off. The Court there further broadly laid down that, ifproperty be once attached, the attachment would subsist, if notexpressly abandoned by the execution-creditor, until an ordershould be issued for its withdrawal. In the present case, notonly was there no border withdrawing the first seizure, but therewere no circumstances of abandonment; on the contrary, both theCourt and the execution-creditor considered the seizure to be stillsubsisting and operative.
This appeal fails, and should be dismissed with costs.
YAPAHAMINE et al v. WEERASURIYA