028-NLR-NLR-V-29-ABUBACKAR-v.-TIKIRI-BANDA.pdf
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192$.
Present: Garvin aud Lyall Grant JJ.
ABUBACKAll v. TIKIBI BANDA.
'*95—j) c Kuruitcyala, 10.915.
Action under section 247 of ike Civil Procedure Code—Property boughtat Fiscal’* sale—No conveyance—Claim by purchaser—Seizableinterest—Action rci /vindication
Where the purchaser of property at a Fiscal's sale, who had notobtained a Fiscal's conveyance, claimed the property when it wasseized in execution of another writ,—
Held, that in the absence of a Fiscal’s transfer, the judgment-debtor had a seizable interest in the property at the date of the seiznreand that the seizure was regular.
Held, further, as the purchaser without a Fiscal's conveyancehad no title, the seizure of the property as that of the judgment-debtor in whom the title was at that date vested was a lawfulact which could give the purchaser no cause for an action rcivindicatio.
A
PPEAL from a judgment of the District Judge of Kurunegala.The facts are stated in the argument.
Haylcy, for plaintiff, appellant.
This is an action under section 247, and the learned DistrictJudge purporting to act on the authority of Silva v. Nona Hamine 1has dismissed plaintiff’s action on the legal issue “ has plaintiffa cause of action against the defendant ?
Plaintiff was the purchaser in execution under writ issued in
B. 1,033, Kurunegala. Sale took place on January 31, 1925,but no Fiscal's transfer was issued till June 20, 1925. In themeantime the present defendant who had a decree against some ofthe same judgment-debtors in D. CM Kurunegala, 9,931, seizedthe same property on April 30, 1925, and sold.it on June 5, 1925.
Present plaintiff then claimed on the footing of his sale but theclaim was dismissed on July 21, 1925, and thereafter he broughtthis action.
The case referred to by the learned District Judge is in thefirst place the converse of the present case. There the plaintiff wasthe creditor and he certainly must be referred to the date of seizure.With reference to the dictum that “ the rights of a creditor as wellas of the claimant must be considered as at the date of seizure,"this must be considered to be mere obiter in view of the fact thatthat action might well have been decided on other grounds.
(1900) 10 N. L. R. 44.
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In a section 247 action it is title that is investigated, and if thetitle has, since action brought, been perfected, no advantage isgained by dismissing the present action and referring the plaintiffto a rci vindicatio action. There is the prayer for title and thisaction might be converted into a rei vindiccUio action. There isprecedent for this procedure Ibrahim v. Bawa Sahib.1
Even if the law be as stated in Silva v. Nona Hainine (supra), thereis clear authority for the proposition that the earlier Fiscal’s transferprevails (Aserappa v. Weeratunga2) and, therefore, primA facieplaintiff has better title. This is, therefore, a deserving case inwhich it would be in the interests of all parties to convert thisaction into a rci vindicatio action.
H. F. Perera, for defendant, respondent.—The crucial questionat either the claim inquiry or in a section 247 action is, hadthe judgment-debtor an interest in the property at the date ofseizure.
It is hardly necessary to argue that if the judgment-debtor hadsome interest then a creditor was fully entitled to seize it for whatit was worth.
That being so, no distinction can be drawn between the casefewhere a creditor comes into Court as plaintiff and where a claimantis plaintiff.
A similar case was dealt with by Wendt J. in Baba Singho v.Don Salmon,3 and in this case Silva v. Nono Hamine (supra) wasfollowed, and the dismissal of plaintiff’s action was affirmed.
Hayley, in reply.—In Baba Singho v. Don Salmon [supra) there wasno Fiscal’s transfer even at date of section 247 action. In thepresent case our Fiscal's transfer was long prior to action brought.
July 7, 1926. Garvin J.—
The parties are agreed that the land in respect of which thisaction was brought belonged in common to five persons DingiriBanda, Dingiri Anima, Tikiri Menika, Ukku Banda, and Band&raMonika.
In pursuance of a writ issued in case No. 1,038 of the Court ofRequests of Kurunegala against these five persons the land wasseized and sold in execution and purchased by the plaintiff onJanuary 31, 1925. The sale was confirmed on April 2, 1925, hut-no Fiscal’s conveyance was executed till June 20, 1925.
In District Court case No. 9,931 the defendant who sued on twomortgage bonds executed by Dingiri Banda and Ran Menikaobtained judgment against two persons referred to as the legal
126 N. L. /?. 71.*14N.L.R.4I7.
3 4 .4. C. R. 75.
1926,
Abubockarr. TikiriBanda
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1926*
Galvin J.
Abitbackarv. TikiriBanda
representatives of their estates and presumably after exhaustingthe property mortgaged obtained writ and caused their interestsin this land to be seised on April 80, 1925.
The present plaintiff claimed the land but his claim was dis-allowed on the ground that he had not then obtained a Fiscal’sconveyance and was not therefore in a position to establish aninterest in the l$nd.
In this action he is seeking to establish his right to the land andseeks a declaration of that right, and also that the land is notliable to seizure and sale under the defendant’s writ.
His action was dismissed on the ground that at the date ofseizure the interests in dispute were still vested in the judgment-debtors inasmuch as they had not been divested of those intereststill the Fiscal's conveyance was executed on June 20, 1925.
The circumstances which gave rise to this action, the form of thepleading and of the prayer and the fact that it was brought within14 days of the disallowance of the claim clearly identify it as anaction brought for the special purpose of releasing this land fromseizure and sale in execution of a writ. It comes within the categoryof cases referred to in our reports as actions under section 247.In such cases the defendant if he is the seizing judgment-creditorasserts no title of his own. He is there to justify his seizureand retain the benefits of it on the ground that at the date of theseizure his judgment-debtor had a seizable interest. It is contendedtherefore that the rights of parties to a proceeding under section247 must be determined as at the date of seizure, and if at thatdate the judgment-debtor had a seizable interest the seizure is inorder and may not be set aside. If this submission is sound theplaintiff must fail, as it is admitted that the Fiscal’s conveyanceunder which he claims to have derived title was not executeduntil a date long subsequent to the seizure. In Silva v. NonoHamxne 1 a Bench of three Judges of this Court had under con-sideration the converse case of an action by the creditor againstthe successful claimant. The title set up was a title which accruedto the judgment-debtor subsequent to the seizure. The Court-held that the question which arose in an action under section 247,was whether or not the debtor had an interest at the date ofseizure. That case might have been disposed of on the groundthat the title of the judgment-debtor accrued after the filing ofthe action, but it was not. The decision was based on a considera-tion of the sections of the Code relating to claims to property underseizure which it was thought rendered it impossible “ to avoidthe conclusion that the rights of the creditor as well as of theclaimant.must be considered as at the date of seizure.”
1 (1906) 10 N. L. R. 44.
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The ease of Baba Singho v. Don Salmon 1 is the case of mi actionunder section 247 by an unsuccessful claimant whose claim wasdisallowed on the "round that he had not obtained a Fiscal's con-veyance and was not therefore vested with title at the date of theseizure under which he claimed. Wendt J. followed the ruling inSilva v. Nono Hamine (supra) and affirmed the dismissal of theaction.
Again in Ibrahim r. Bawa Sahib,2 Ennis J. acted on the law assettled in Silva v, Nono Hamine (supra).
It was contended, however, that this is an action rei vindicatiowhich the plaintiff has a right to maintain. To this I. cannotassent. Inasmuch as the plaintiff had no ’title the act of thedefendant in causing the property to be seized as that of his debtorin whom the title was at that date vested was a lawful act whichcould give him no cause of action. Since the plaintiff obtained hisconveyance the defendant did no act which gave him a cause ofaction.
In Baba Singho v. Don. Salmon (supra) Wendt »T. declined totreat such an action as this as an action rei vindicatio even as anindulgence. And in Ibrahim v. Bawa Sahib (swpra) it was only asan indulgence the claimant was permitted to prosecute the actionas an ordinary action rei vindicatio.
In view of the statement in the answer that the premises underseizure had been sold and purchased by the defendant I was dis-posed to consider whether a similar indulgence might be grantedin this case. But upon a perusal of the record of the case in whichthe seizure was made I can find no report of such a sale and no.trace of its confirmation.
The plaintiff must, I think, be left, if so advised, to vindicatehis rights (if any) in other proceedings.
The appeal is dismissed with costs.
Lyall Graxti J.—I agree.
Appeal dismissed.
H A. C. R. 75.
29/131926.
Garvin J.
Abnbackarr. TikiriRamia
2 (1924) 26 N. L. R. 71.