065-NLR-NLR-V-02-ABDUL-CADER-v.-ANNAMALAY.pdf
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1896.October 6.
ABDUL CADER v. ANNAMALAY.
D. C., Kandy, 7,816.
Civil Procedure Code, s. 247—Action thereunder—What plaintiff shouldprove and pray for—Court in which action is to be brought—Formof order in claim inquiry.
Where property seized in execution is claimed, and the claimafter investigation is disallowed, and the claimant brings an actionunder section 247 of the Civil Procedure Code, his prayer in theplaint should be for a declaration that he is entitled to have theproperty released from seizure, and for an order on the Fiscal torelease the same accordingly. If he proves that he was inpossession of the property at the time of the seizure, he will beentitled to the declaration and order prayed for, unless the defend-ant counterclaims for a declaration that he is entitled to havethe property seized and sold for payment of his judgment debt,and proves that his judgment debtor is the owner of the property.
Per Bonser, C.J.—The action under section 247 of the Civil Pro-cedure Code need not necessarily be brought in the Court which heldthe inquiryinto the claim. If the value of the property seized doesnot exceed Rs. 300, the action should be brought in the Court ofRequests, although the original action in which execution issuedwas in the District Court.
Per Withers, J.—The order in a claim inquiry, being an orderlike a judgment, should contain a concise statement of the case, thepoints for determination, the decision, and the reasons. The claimor objection should be clearly defined, and the facts on which thedecision is based clearly found.
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r I ''Hfi plaintiff in this case claimed certain property seized in-L execution of a writ sued out by the defendant against athird party.■ The claim was inquired into and disallowed. Hebrought the present action under section 247 of the Civil Pro-cedure Code to establish his right to the property seized. Hepleaded title acquired by prescriptive possession, but failed to provesuch possession, and the District Judge entered judgment againsthim. The plaintiff appealed.
1896.
October <?.
Sampayo and Wendt, for appellant.
Domkorst, for respondent.
Cur. adv. vult.
6th October, 1896. Bonseb, C.J.—
I am of opinion that the District Judge rightly decided theissue agreed on by the parties, viz., “ whether the plaintiff isentitled to the lands claimed.” The plaintiff failed to establisha prescriptive possession.
We sent for the proceedings on the claim inquiry to ascertainwho was then found by the District Judge to have been inpossession of the property at the time of seizure. They do notassist us.
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The District Judge seems to have rejected the plaintiff’s claimwithout assigning any reasons. The question who was in posses-sion at the time of seizure is all important in claim inquiries. Ifthe plaintiff was in possession either by himself or another, theproperty ought to have been released from, seizure, and theplaintiff ought not to have been driven to an action to assert hisrights. He was entitled to retain possession of the property untilhe was evicted by some one with a better title.
In this case the plaintff has misconceived his rights and placedhis claim too high. The “ right which he claims to the property indispute ” (sectipn 247) has been held—and in my opinion rightlyheld—by the Calcutta High Court (15 Calc. 674) to mean not “ his“ right to the property,” but the right which he claims in theexecution proceedings, viz., the right to have the property releasedfront seizure.
The prayer therefore of a plaintiff in an action such as thisunder section 247 should be for a declaration that he is entitledto have the property released from seizure, and for an order on theFiscal to release the same accordingly.
If the plaintiff proves that he was in possession of the propertyat the time of the seizure, and that therefore the Court ought notto have refused to release the property, he will be entitled to the
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1806. declaration and order he prays, unless, indeed, the defendantOctober 6. counterclaims for a declaration that he is entitled to have theBonskb, C.J. property seized and sold for payment of his judgment debt, andproves that his judgment-debtor is the owner of the property.
The action under section 247 will not necessarily be brought inthe Court which held the claim inquiry, for, if the value of theproperty seized does not exceed Rs. 300, it will be brought in aCourt of Requests, even though the original action was broughtin a District Court. But in such a case there will be no conflictbetween the two courts, for the District Court will, of course,recognize the adjudication of the Court.of Requests as being theadjudication of a competent Court, and -will govern itselfaccordingly.
The appeal will be dismissed.
I
Withers, J.—
I concur in thinking that the decision appealed from is rightand should be affirmed.
The plaintiff invited an adverse judgment by his change offront.. .
In the case of Wijeyawardene v. Maitland, reported in 3 C. L. R.7, I observed : “I have no doubt that under section 247 of the“ Civil Procedure Code a claimant or objector can only seek to“ establish in the action thereby permitted to him the very same“ right in the property under seizure as was the subject of the“ adverse order, within fourteen days of which he is compelled“ to take the action allowed him.” I remain of that opinion.
What was the plaintiff’s claim when the property was seized ?This should, I think, have been stated in the plaint, in the action,but it was not so stated.
We had to send for the proceedings in the claim inquiry toascertain what the plaintiff’s claim was, and what the Judge whoinquired into the plaintiff’s claim found and decided.
Section 243 of the Civil Procedure Code is of importance inthis connection. It enacts that the claimant or objector must, onsuch investigation, adduce evidence to show that at the date ofseizure he had some interest in or was possessed of the propertyseized.
The claim which the petitioner put forward to the propertyseized was two-fold : he claimed'to have purchased it by a notarialact from a third party, and also to be in actual possession of theproperty at the time of seizure. His interest as distinguishedfrom possession was his interest under the notarial conveyance.
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No doubt the Judge who inquired into his claim could not pro-nounce upon his title by purchase, but proof of purchase and rightin the vendor, if any, might have assisted the Judge in decidingwhether the property was in possession of the judgment-debtoror not, for if it was not in the judgment-debtor's possessionor in the possession of another on the judgment-debtor’s account,the Judge would have been bound to release the property fromseizure. A fortiori was he bound to release the property fromseizure if it was in possession of the claimant or of some one onhis account.
Judging from the Fiscal’s report of this claim to the Court itlooks as if at least one of the properties seized was in the possessionof one Rawter on account of the claimant. Be this as it may,the plaintiff, as I said, changed front in this action and claimed adecree under the Prescription Ordinance in his favour.
The necessary proof of adverse and uninterrupted possessionfor ten years previous to action was not forthcoming, and theconsequence was failure.
The order in the claim inquiry lacks some of the constituentsof a proper order. An order, like a judgment, should contain aconcise statement of the case, the points for determination, thedecision, and the reasons. Investigation into claims and objectionsunder section 241 and following sections cannot be too carefullyconducted.
The claim or objection should be clearly defined, and the factson which the decision was based should be clearly found.
The ultimate fact is in most cases possession, and possession isa right which deserves to be carefully protected.
The popular saying that possession is nine-tenths of the lawmarks the value set upon possession.
If a person is in possession he should be maintained in hisadvantageous position. He should be the defendant, and he who,like an execution-creditor, asserts that property of which aclaimant is in possession belongs to his judgment-debtor, shouldbe made to prove it, melior est conditio possidentis et defendentis.
If a claimant is in possession of property seized, it is very hardthat he should be compelled to take the initiative and prove histitle, and have only fourteen days to prepare his proofs.
I say possession is in most cases the ultimate fact to be deter*mined in claim inquiries. It may not be so in all cases, for theinterest of a claimant who is not’in possession may have to beprotected, such as a mortgage or lien, for which provision is madein section 246.
1896-
October ft.
Withers, J.