043-NLR-NLR-V-25-CAREEM-v.-APPUHAMY-et-al.pdf
( 190 )
1923
Present: Jayewardene A.J.
CAREEM v. APPUHAMY et al.
154—C. R. Anuradhapura, 11,771.
Sequestration before judgment—Claim—Inquiry is not as to possessionbut as to title—Civil Procedure Code, ss. 658 and 659.
Where property is sequestered before judgment, and a claim ismade and an investigation is held under sections 658 or 659 ofthe Civil Procedure Code, the question of possession is not decisive.
The Court has to be satisfied, before releasing the property fromseizure, that the property was not the property of the defendant.
The Court should not exercise its discretion in favour of allowingan application for sequestration before judgment, unless thsapplicant has strictly complied with the requirements of section 653.
r I ^HE facts appear from the judgment.
E. W. Jayewardene, K.C. (with him H. V. Perera), for claimant,appellant.
J. Joseph, for plaintiffs, respondents.
July 30, 1923. Jayewardene A.J.—
This is an appeal from an order of the Commissioner of Requestsof Anuradhapura disallowing the appellant’s claim to certaintimber seized under a mandate of sequestration issued undersection 653 of the Civil Procedure Code. The plaintiff institutedthis action on a promissory note against two defendants on March
1923.
(191 )
14, 1923. The note itself is dated May 23, 1922. On the sameday his proctor moved for a mandate of sequestration on theground that the plaintiff had no security to meet the amount ofhis claim, and that he was credibly informed, and verily believed,that the respondents were fraudulently alienating their propertywith the intention of defrauding him. A mandate of sequestrationsigned by the chief clerk of the Court issued on this motion, andtimber worth Rs. 1,500 was seized by the Fiscal as the propertyof the second defendant. The seizure was on March 23, and theappellant made his claim on March 26. His claim was based ona notarial deed of sale No. 4,402 of March 30, 1923. The claimwas investigated under section 658, and the Court rejected theclaim on the ground that the property seized was still in the posses-sion of the judgment-debtor even though he had sold it to theplaintiff. Now, the learned Commissioner does not say that thesale to the claimant was a fraudulent alienation, and that, not-withstanding the sale, the judgment-debtor still remained ownerof the property. He rejects the claim because the property wasin the possession of the judgment-debtor. Such an order mighthave been possible, under sections 244 and 245 of the Civil ProcedureCode, in the case of property seized in execution of a decree, butunder section 659, where the Court upon investigation “ is satisfiedthat the property sequestered was not the property of the defendant,it shall pass an order releasing such property from seizure, andshall decree the plaintiff to pay such costs and damages by reasonof such sequestration, as the Court shall deem meet.*’ In this casethe Commissioner has, I take it, found that the timber was not theproperty of the defendant at the time it was sequestered. In fact,the plaintiff himself in his affidavit which he swore in supportof his application for sequestration said that the defendant hadnegotiated for the sale of this timber to the claimant, and that partof the timber had already been removed. It is contended for theplaintiff-respondent, that under section 659 it is sufficient for theplaintiff to satisfy the Court that the property sequestered wasin the possession of the defendant, and that sections 244 and 245applied to the results of investigations under section 658. I donot think so. I think under section 659 the Court has to be satisfied;before releasing the property from seizure, that the property wasnot the property of the defendant, and the Court should disallowthe claim when the property is the property of the defendant.The question of possession is not decisive in an investigation undersection 658 or section 659. The question the Court has to decide is,Who has the title to the property seized ? and its decision must be-guided by the conclusion it c>;mes to upon the question of owner-ship. This view is supported to some extent by the judgmentof Wendt J. in the case of Garimjee Jafferjee v. Andrew Pavin.1
1 (1$06) 3 Bal. R. €9.
Jayhwab-
DBNE A.J.
Careem v.Appvhamy
( 192 )
1923.
Jayewar-
DHNE A.J.
Careern, v.A'ppukamy
1 might also invite attention to the cases of Carwppen v. Ussanar1and Saibo Marikar v. Anthony Fernando.2 In the circumstances,
1 think the order made by the Commissioner is wropg, and shouldbe set aside. The appellant is entitled to his costs here and in theCourt below.
There is one other matter 1 wish to point out. The record doesnot show that the application for sequestration was ever allowedby the Court. There is no entry on the motion paper. Thereis a minute in the journal which merely shows that the plaintiffmoved for a mandate of sequestration, i>ut there is nothing toshow that it was either allowed or disallowed. The issue of amandate of sequestration before judgment is not an ordinary stepin the proceedings, and such a mandate should not be issued by theCourt unless and until it is satisfied on the two grounds referred toin section 653, and these two grounds require the serious attentionof the Court, and the Court should not exercise its discretion infavour of allowing the application for sequestration unless theapplicant has strictly complied with the requirements of thatsection. In this case, as I have said, there is nothing to showthat the Court had allowed or disallowed the application, and onthis ground alone I would have had to set aside all the proceedingsrelative to the sequestration, if the objection had been taken by theappellant.
I therefore direct that the claim be upheld, and that the propertybe released from seizure.
Set aside.
♦
» (1901) 4 N.L. R. 379.
* (1899) 1 Tombyah 6$.