007-NLR-NLR-V-05-ARICHI-CHETTY-v.-IBRAHIM-NATCHIA.pdf
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ARITCHI CHETTY v. IBRAHIM NATCHIA.
D. Puttalam, 1,322.
Claim investigation—Duty of Fiscal—Civil Procedure . Code, s. 241—Sale ofproperty seized, notwithstanding reference of claim to the District Court—Delay in deciding the claim—Action for damages for illegal seizure—Prescription.
When a property seized in execution is claimed, and the Fiscal referssuch claim to the Court, it is his duty to stay his hand until it is decidedby the Court whether the seizure is legal or not.
A claimedcertaincoeoanuts seized underB's writ.The Fiscal, after
reporting theclaimto the District Court,sold thenuts, being of a
perishable nature, m – March, 1895. The claim investigation was notdetermined in Court till November, 1898, in favour of the claimant.Immediately afterwards he raised an action for damages for the wrongfulseizure and sale of his coeoanuts. Held, the action was prescribed undersection 10 of Ordinance No. 99 of 1891.
O
N the 4th March, 1895, at the instance of one Segu Mohideen,the judgment-creditor in D. C., Puttalam, 744, certain
coeoanuts wereseized by the Fiscal. Thepresentplaintiff claimed
them, and theclaimwas reported to theCourt.As the property
was of a perishable nature it was sold on the 12th of the same month,before the claim could be adjudicated oh by the Court. The presentplaintiff alleged that the Fiscal’s report to the Court understatedthe quantity of the articles seized, and that the prices realized atthe sale were much less than they were actually worth. For vari-ous reasons the claim was not decided till the 2nd. November,1898, when the District Judge made( order that the claim to the
. 1900.November 29■
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1»0<0.
November.
property seized and sold be upheld with costs payable from theestate of the deceased Segu Mobideen.
The present action was instituted on the 16th November, 1898,and the plaintiff claimed Rs. 1,600 as damages consequent uponthe wrongful seizure and sale, and he further prayed that theamount be levied out of the estate of the deceased Segu Mohideen.
The defendant, who was the* administratrix of Segu Mohideen,pleaded that, as the action was not brought within two years ofthe sale, which took 'place in March, 1895, it was prescribed. Sheadmitted that her intestate pointed out for seizure a certainquantity of cocoanuts and copperah, which was of no greatervalue th$n Rs. 225.
The District Judge held as follows:—“ The cause of action“ admittedly arose on the 12th March. 1895, that is, more than" two years before action brought. This cause being damages“ caused to plaintiff by the tort of Segu Mohideen in wrongfully“ causing the plaintiff’s property to be seized by the Fiscal as the“ property of his execution-creditor in District Court No. 744, the“ 10th section of Ordinance No. *22 of .1871 would prima facie*■ apply, even if liability for a tort still remained after the death“ of the wrongdoer. As no objection on this latter point has been“ raised in the answer, I assume that the estate of Segu Mofiideen“is liable for this*tort. The only question, therefore, is whether“ section 10 of Ordinance No. 22 of 1871 applies or not. Plaintiff’s“ counsel has raised an ingenious argument to evade the application“ of this section. His proposition is as follows:—‘ Plaintiff, having‘ ‘ ‘ preferred a claim to the property seized, could not during the“ * pendency of' the claim proceedings institute a regular action‘ ‘ ‘ against Segu Mohideen,. because it would have been met by“ ‘ the plea of lie pendens. Therefore the operation of section 10“ ‘ of the Prescription Ordinance was suspended, and the two years“ ‘ must be reckoned from the date of the decision of the claim,“ ‘ that is, from the 2nd November, 1898. Moreover., as to part“ ' of the property, subject of the present action, this action must“ ‘ be regarded as an action under section 247 of the Civil Procedure“ ‘ Code, because the plaintiff claimed more than the Fiscal reported“ ‘ as having seized.’
“ I think both branches of this proposition are untenable.’’
The District Judge dismissed the plaintiff’s action with costs.
H. Jayawardena, for the plaintiff, appellant.
29th November, 1900. Bonser, C.J.—
This is rather ,an extraordinary case. The plaintiff wasthe owner of a quantity of movable property in the shape of