076-NLR-NLR-V-13-ABDUL-RAHIMAN-v.-ABUBAKER-LEBBE.pdf
( 329 )
Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice, Oct. gj, jqjoand Mr. Justice Wood Benton.
ABDUL RAHIMAN v. ABUBAKEB LEBBE.
D. 0., Kalutara, 4,207.
Costs of unsuccessfulclaim—Claimed asdamages' in anaction under
• *. 247, Civil Procedure Code.
An unsuccessful claimant who brings an action under section C17,
Civil Procedure Code, is not entitled to recover, by way of damagee,the costs incurredby him in the claim inquiry,though he succeeds
in establishing bis title to the property seized.
Sinnalamby Vanviah v. Vcemanadan 1 followed.
Woon Renton J. —If the pointbad not-keenconcluded by
authority, I shouldhave thought thatthcret wasmuchto be said in
favour of a decision in a contrary sense.
T
HE facts material to this report are set out in the judgment ofthe Chief Justice.
A. St. F. Jayewardene, for jbe defendant, appellant.
Bawa (with him S. Ofycyesekere), for the plaintiff, respondent..
. Cur. adv. vult.
October 21, 1010. Hutchinson C-J.—
This is the defendant’s appeal against a decree declaring theplaintiff to be .the owner of a house and that it should be releasedfrom seizure, and awarding .to the plaintiff Bs. 50 as compensationfor its seizure.. The house was seized by the defendant under awrit of execution in another action against Colonda M. Maimu-nachi; the present plaintiff made an unsuccessful claim to it, andthen brought this action under section 247 of the Code.
His Lordship then proceeded to discuss the points urged at theargument not material to this report, and continued: —
Tlie remaining question-, is whether the plaintiff is entitled todamages for loss which he sustained by the wrongful seizure of thehouse in execution. I think that he is not. The damages whichhe claims seem to .be, according to his evidence, the fees which hepaid to his lawyers to get the writ stayed: the costs of making andsupporting his claim, in fact. In Sinnaiamby Vahniah v. Veemanadan1the Court refused to allow the successful plaintiff, by way of damages,
1 (1991) 2 Br. 226.
( 330 )
Oot. 21,1910 {he costs of an unsuccessful claim which he had made. We areHutchinson bound to follow that decision, and I cannot distinguish this caseC.J. from that.
Abdul The decree should be amended by omitting the order for paymentcompensation; in other respects it should be affirmed.
Lebbe No order as to costs of the appeal.
Wood Renton J.—
His Lordship discussed the other points urged at the. argument,and then continued: —
On the question of damages, I think that we are bound by the caseof Sinnatamby Vanniah v. Veemanadan,1 which is a decision of twoJudges, to hold that damages intended, as in the present case, to^reimburse a successful claimant in an action under section 247 forthe costs incurred by him in the claim inquiry cannot be awarded.
T would desire to add, however, that if the. point had not beenconcluded by authority, I should have thought that there wasmuch to be said in favour of a decision in a contrary sense. I cansee no reason in principle why a successful claimant in an action undersection 247 should not recover his costs at the claim inquiryin the form of damages. Section 248 of the' Civil Procedure Code,in providing that any person bringing au action for . the establishmentof a groundless claim “ shall, in addition to his liability to pay costsand damages, ” be liable .to a fine not exceeding Rs. 50, seems tocontemplate that damages could be recovered against the unsuccess-ful claimant, and I should think that such damages would necessarilyinclude the expenses to which the execution-creditor had been putat the claim inquiry. If an unsuccessful claimant is liable to.damages of that character, a successful claimant ought, I think,to be entitled to recover them.
I agree to the formal order proposed by His Lordship the ChiefJustice.
Varied.
1 (1901) 2 Br. 226.