( 128 )
CANDEPERUMAL v. SIN NAT AI et al.
ISMA LEBBE MARIKAR, Claimant and Appellant.
D. C., Batticaloa, 24,176, Interlocutory.
Bill of costs—Taxation—Civil Procedure Code, s. 214—Claim proceedingsunder s. 241—Determination of class.
The class of a claim proceeding under section 241 of the CivilProcedure Code is determined either by the value of the propertyclaimed or the amount of the decree, whichever is the less, and the billof costs of such proceeding should be taxed according to the class sodetermined.
Per Bhowne, J.—A Court has power under sections 244-246 of theCivil Procedure Code to make order as to payment of costs.1
Adamjee v. Cadar Lebbe, D. C, Colombo, No. 98,031 (1 C. L. R. 66),distinguished.
r' I ''HE facts of the case sufficiently appear in the judgment oftheir Lordships.
Dornhorst, with Bawa, for claimant appellant.
Sampayo, for respondent.
Cur. adv. vult.
25th June, 1895. Bonser, C.J.—
This is an appeal from the decision of Mr. Roosmalecocq,Acting District Judge of Batticaloa, as to the taxation of a billof costs.
The Fiscal, in executing a writ of execution to enforce a decreefor the payment of money made in an action of KaderamenCander Permal v. Vaatipody Summattai, No. 24,176, in theDistrict Court of Batticaloa, seized a piece of land, which hereported to be of the value of Rs. 100.
The appellant claimed the land as his property, and the Fiscal,as required by section 241 of the Civil Procedure Code, reportedthe claim to the Court.
The appellant thereupon made an application in writing,intituled in the said action, for a day to be fixed for inquiry intohis claim, and that the sale by the Fiscal might be stayed pendingthat inquiry. The Court upon that application made an orderstaying the sale, and proceeded to investigate the claim in thepresence of the execution-creditor and the claimant in asummary way as provided by section 242 of the Civil ProcedureCode, and after hearing the evidence called by the appellantand the execution-creditor, disallowed the claim, and ordered theappellant to pay the costs of the inquiry.
( 129 )
The Secretary of the District Court taxed the costa of the 1895.execution-creditor under class I. in schedule III. of the Civil bonbeb, C.J.Procedure Code, on the ground that the value of the land wasunder Rs. 200.
The Acting District Judge, on being referred to, ordered thetaxation to be made under class IV., on the ground that the actionin which the decree sought to be enforced was obtained was anaction in class IV.
The appellant contends that the Acting District Judgewas wrong, and that the Secretary was right. There appearsto be no decision of this Court on this point, and, althoughit is stated that the practice of the Batticaloa Court has alwaysbeen to tax the costs of these incidental proceedings on the Bamescale as the costs of the original action, it has been the practicein tho Colombo District court, at all events in recent years, totax them as costs in an independent action.
Section 214 of the Code provides that bills of costs are to betaxed according to the rates specified in schedule III. of the Code.
That schedule divides actions into five classes for the purpose oftaxation of costs according as “the cause of action, title to land“ or property, value of estate, or subject-matter of the action ” isabove or below certain specified amounts. In other words, thescale of taxation is to be determined by the amount at stakebetween the parties. If we apply that rule to this case, what isthe amount at stake in this proceeding ? It is clearly not the sameas the cause of action in the original action.
The claimant is no party to that action. It is true that section241 provides that the Court is to have power over him “ as if he“were a party to the action,” in which would be included thepower to make him pay costs in a proper case ; but it does not saythat he is to be treated in all respects as a party to the action.
He cannot dispute the validity or amount of the decree. Theonly question in the claim proceeding is, whether or not theproperty is liable to be seized in execution.
The object of the execution-creditor is to have the propertywhich is seized declared liable to him to the amount of the decree.
Where the amount of the decree exceeds the value of the property,the execution-creditor cannot succeed to a greater extent than thevalue of the property. Where the value of the property exceedsthe amount of the decree, the execution-creditor cannot sueceedto a greater extent than the amount of the decree. The measure,then, of the value of the subject-matter of such a proceeding asthis will be the value of the property or the amount of the decree,whichever is the less.
Tf . —
( 130 )
1895. If the rule be as contended by the respondent, it would lead toBrowne, A.J. this anomalous result, that a man whose property is attached byan execution-creditor is to have the valuation of his proceedingsto protect his rights determined, not by the value of his property,but by a quite irrelevant consideration, viz., the value of theoriginal cause of action, with which he has nothing whatever todo. So that, if in the execution of a money decree for Rs. 10,000 ahouse were seized, belonging to the judgment-debtor, in whichwas a chair or table worth Rs. 10 belonging to a third person,that person, if he wished to assert his right to that property, mustrun the risk of having the costs taxed against him on the highestscale, if his claim is disallowed.
The order of the Acting District Judge must be reversed, but,having regard to the fact that he followed the established practiceof his Court, without costs.
I agree that the order appealed from should be set aside, andthe Secretary’s taxation of the costs of this claim inquiry beupheld.
It was questioned in argument whether, when section 244 of theCivil Procedure Code mentioned only an order as to payment ofFiscal’s fees and charges, the Court had power under sections244-246 to make order as to payment of costs. 1 hold that it hasthe power under section 209, but as that section applies only tocosts proper, there was need of this additional power to providefor the payment of these other expenses.
It was also urged for the respondent that the order should besustained for the reasons given in the decisions reported in 1 C. L.R. 66, whereby a like order was made as to taxation of costsincurred in claims in concurrence. But (1) these were decisionsunder the old procedure, when as yet claims were investigated b3Tthe Fiscal ere the Civil Procedure Code made them to be deter-mined by the Court, and the Stamp Ordinance No. 3 of 1890prescribed the Re. 1 stamp on a Fiscal’s claim for such purpose ;and (2) such claim and investigation is not necessarily ‘‘ made and“ entitled as an application in the action,” which was the reasonfor these decisions.
In India such an application when entertained has to benumbered and registered as a suit (O'Kinealy, section 270). OurCode has not so directed ; indeed, it says the investigation shallbe “in a summary manner,” and so it might at first be regardedas if it were made in the original action. But when it isremembered how complete in itself the inquiry is when held by
( 131 )
the Coart of the district wherein the property is situated which 1896.
has not the original record before it, bat only the claim with its bbowks, jLJ.
own nominal stamp, the report and the proceeding thereon, it
will be seen, it stands apart altogether from the original action, not
only as regards its subject and issues, but as a matter of procedure;
so, too, when the Court of the writ holds such a separate inquiry as
in these very proceedings. In either case the only data in the
proceedings on which the class can be determined and the bill
taxed is the value of the subject of claim. The contingency that
the Fiscal would seize property of value exceeding the amount
to be recovered under the writ I would regard as generally
improbable. Were it to occur, I agree that the class for taxation
of claim costs should not, as a rule, be greater than that of the
CANDEPERUMAL v. SINNATAI et al. ISMA LEBBE MARIKAR, Claimant and Appellant