059-NLR-NLR-V-12-AHAMADU-LEVVE-MARICAR-v.-VELUPILLAI.pdf
1009.July H
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Present: Mr. Justice Middleton.
AHAMADU LEVVE MARICAR v. VELUPILLAI.
O. E., Balticaloa, 13,782.
Res judicata—Order on claim without notice to parties—Effect of—Posses-sory suit—Estoppel—Civil Procedure Code, as. 242 and 247.
Ail order dismissing a claim to land seized in execution undersection 242 of the Civil Procedure Code, without notice to thejudgment-creditor, does not prevent the claimant from maintain-ing a possessory suit or an action rei vindicatio in respect of the land.
The claimant in sucli a case is in the same position as if he hadmade no claim.
Menachy v. Omnapracasam' referred to and distinguished.
r [ 1HE plaintiff instituted this possessory suit to recover possessionof a garden called Kulathuvalavu, alleging dispossession bythe defendant on August 19, 1908. The defendant alleged that he,as judgment-creditor in D. C., Batticaloa, 1,669, in which heobtained judgment against.one Abubaker Levvai, seized the saidland in execution, when it was claimed by the plaintiffthat theplaintiff’s claim was dismissed on June 11, 1898, and he broughtno action under section 247; and that the property was sold onJune 14, 1898, and purchased by the defendant, who obtainedFiscal’s transfer No. 114, dated May 28, 1906; the defendantpleaded that the plaintiff having failed to bring the statutoryaction under section 247 of the Civil Procedure Code was estoppedfrom maintaining the present action.
The proceedings on the claim preferred by the plaintiff in D. C..Batticaloa, 1,669, were as follows :—
“June 11, 1898: Mr. Sheriff files proxy for the claimant andmoves that the usual notices be issued for another date, as theclaimant is laid up ill and unable to attend Court.
“ Claimant absent, his Proctor reports him by letter to be sick.
“No steps having been taken since 1st instant to issue notice, Ifind the explanation in' the motion unsatisfactory, and decline topostpone the inquiry; no evidence being tendered, the claim isdisallowed.’’
Among the issues framed at the hearing was—
Whether plaintiff can maintain this action in the face ofthe order in D. C., Batticaloa, 1,669, disallowing theplaintiff’s claim to the land ?
The Commissioner of Requests (G. W. Woodhouse, Esq.) held asfollows (October 29, 1908): —
“ This is a. possessory action. . The plaintiff says he was inpossession of this garden. Kulatuvalavu for a year and a day,(1892) 2 C. L. R. 97.
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just before he was ousted on August 19, 1908, by the defendant.He asks that he be put back into possession.
“ In No. 1,669, D. C., Batticaioa, this defendant, who was theexecution-creditor in that case, seized this garden under writ, andthe present plaintiff claimed it. The sale was stayed, and the claimfixed for inquiry. The defendant then took no further interest inthe matter, and as he was guilty of unnecessary delay, and the claimappeared to have been made to cause vexation and delay, his claimwas disallowed without any inquiry under section 242, Civil Proce-dure Code. The plaintiff then preferred no action under section247 within fourteen days of that order.
“ I hold that the- order operates as res judicata in an action fortitle to the same land between the parties, and is a complete answerto a possessory action such as this. In Menachy v. Gnanapra-casam,1 the claim proceedings terminated exactly as they did in thiscase. Then, at the argument in appeal it was conceded by Mr. vanLangenberg for the appellant that such an order would operate as resjudicata in a question of possession as distinguished from one of title.
“ Here the question is simply one of possession ; and, as I saidbefore, this order in the claim proceedings is a complete bar to thepresent action.
“ On the 3rd issue, therefore, I hold in favour of the defendant,and dismiss plaintiff’s action with costs.”
In appeal,—
H. A. Jayeioardene, for the plaintiff, appellant.
Tisseveresirujhe, for the defendant, respondent.
Our adv. vult.
July 8, 1909. Middleton J.—
This was a possessory action in which plaintiff-appellant com-plained he had been dispossessed on August 19, 1908, of a gardencalled Kulathuvalavu, of which he had been in possession more thana year and a day previous to such dispossession. The defendant,inter alia, pleaded in bar that the plaintiff was estopped from bring-ing this action by an order disallowing a claim made by the plaintiffon June 11, 1898, to this land when seized in execution in June,1898, by the defendant. Amongst other issues, this issue was dis-posed of first :“ Whether plaintiff can maintain this action on the
face of the order in D. C., Batticaioa, 1,669, disallowing plaintiff’sclaim to this land.” The learned Commissioner of Requests held infavour of the defendant, and dismissed the plaintiff’s action asres judicata oh the authority of Menachy v. Qnanapracasam.1 Theplaintiff appealed, and for him it was contended that when the claimwas dismissed on June 11, 1898, the proceedings-had not reachedthe stage of an inter partes contest; that the claimant’s proctor hadmerely filed a proxy for him, but had not issued the usual notices ;
1 (1892) 2 C. L. B. 97.
1909.
July 8.
1909,
July 8.
Middlbion
J.
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that the claimant had apparently delayed from June 1 to June 11to issue his notices, and the Judge therefore disallowed the claimfor dilatoriness under seotion 242. This appears to be the case froma perusal of D 2, apparently a certified copy of the journal entry inthe case. Counsel for the respondent relied on the decision of theSupreme Court in Menachy v. Onanapracasam1 (ubi supra).
I have obtained a record in this case after considerable delay fromthe District Court of Badulla, and I find that the report of the factsin Menachy v. Qnanapracasam1 is not quite correct as regards theolaim being dismissed without inquiry. On the day fixed for thehearing of the claim, both the claimant and the judgment-creditorof the debtor whose land he had seized in execution were present,and there is nothing on the face of the record to show that theclaimant was not ready to proceed, except that he called the plain-tiff only as his witness. Both parties were present in person andwere represented by proctors, and it is quite clear that a decisionbetween the parties was given. In this case no notices had beenissued to the execution-creditor, and the claim was dismissed whenit had only reached an ex parte stage.
One of the necessary elements in a valid estoppel by res judicatain personam is that the previous proceedings should have beenbetween the same parties, and here there were no parties to theorder made, but the claimant. Estoppels must be mutual. (Caineand others v. Palace Steam Shipping Co.,2 Petrie v. NuttaU.3
I think, therefore, the claimant’s position on the dismissal undersection 242 without notice to the other side is the same as if he hadmade no claim. It is not obligatory on an owner of land to make aclaim if his property is seized in execution, and if the Owner feelssecure in his title he is entitled to sit still and disregard it, and theperson seizing and selling it does so at his own risk, while thepurchaser is always liable to be ejected therefrom on an action retvindicatio within the period of prescription. Of course, if an ownerknowingly allows his property to be sold in execution without dis-pute, he risks the chance of having his claim rejected when he bringshis tardy action in vindication, on the ground that acquiescence inthe right of the execution-creditor to seize showed an acknowledg-ment of the title of his debtor in the property seized. A personwhose claim is dismissed without notice to the other side under section242 can, I think, always bring his action rei vindicatio. He mightalso, I think, if he chooses, although section 247 only gives the rightto persons against whom orders have been made under sections244, 246, and 246, bring the action contemplated in that section.
In my opinion the ruling of the learned Commissioner is incorrectand must be set aside, and the appeal allowed with costs. The casewill go back for trial in the ordinary course.
Appeal allowed ; case remitted.
1 (1892) 2 a. L. R. 97.* (1907) 1 K. B. 670 at p. 683.
• (1856) 25 L. J. Ex. 200.