137-NLR-NLR-V-48-CAROLIS-APPUHAMY-.-Appellants-and-SILVA-Respondents.pdf
422
Carolis Appuhamy v. Silva.
1938Present : Poyser S.P.J. and Wijeyewardene J.
CAROLIS APPUHAMY et al., Appellants, and SILVA, RespondentsS.C. 120— D. C. Kalutara, 20,262.
Civil Procedure Code—Section 247—Action by unsuccessful claimant—Transferof title prior to claim with agreement to recovery—Right to maintainaction.
The second and third defendants in execution of a decree against thefirst defendant caused certain property to be seized on November 6,1936. Plaintiff claimed this property on a deed of June 2, 1936. Hisclaim was dismissed and he brought this action under section 247 of theCivil Procedure Code. In the course of the trial it transpired that theplaintiff had by a deed dated October 28, 1936, sold this property withan option to repurchase.
Held, that the plaintiff could not maintain the action*
1 (1940) 41 N. L. R. 512 ; 17 C. L. W. 81.
WIJEYEWARDENE J.—Carolis Appuhamy v. Silva.423
^^PPEALi from a judgment of the District Judge of Kalutara.
N. E. Weerasooria, K.C. (with him A. C. Z. Wijeratne and H. A.Wijemanne), for the second and third defendants, appellants.
A. Rajapakse (with him J. R. Jayewardene), for the plaintiff,respondent.
Cur. adv. vult.
November 16, 1938. Wijeyewardene J.—
This is an action under section 247 of the Civil Procedure Code, 1889.The second and third defendants obtained a mortgage decree against thefirst defendant in November, 1935, and on an order to sell issued in May,1936, sold the mortgaged property and realised a part of the claim due tothem. The second and third defendants thereafter obtained a writfor the recovery of the balance amount which was nearly Rs. 1,500 andcaused certain undivided shares in five lands to be seized on November 6,1936. The first defendant’s son, the plaintiff in the present action,claimed the shares seized under the writ, his claim being based on deedP 1 of June 2, 1936, executed by the first defendant in his favour. Theconsideration for the transfer is shown in the deed to be Rs. 2,000 whilethe attestation clause states that Rg. 500 was paid by cheque in thepresence of the Notary and the balance Rs. 1,000 was acknowledged bythe vendor to have been received earlier. The claim was dismissed andthereupon the claimant filed the present action.
In the course of the trial the plaintiff admitted that by document D 2of October 28, 1936, he transferred his interests under P 1 to oneGoonewardene subject to an agreement by Goonewardene to reconveythe land on repayment within two years of the consideration togetherwith interest at a specified rate. An issue was then framed raising thequestion whether the plaintiff could maintain this action in view of theexecution of D 2.
It was elicited in cross-examination from the plaintiff that in spite ofP 1, the first defendant was in occupation of one of the properties trans-ferred and was getting the rubber trees on two of the remaining landstapped. The plaintiff, however, led evidence with the intention ofshowing that the first defendant was possessed of other properties andthat, therefore, the transfer P 1 did not render the first defendantinsolvent. It is rather significant that the plaintiff did not call the firstdefendant to prove the possession by him of other properties availablefor seizure but contented himself with seeking to establish this factthrough the evidence of others. The learned District Judge, however,has accepted this evidence and basing his judgment on the fact that thesecond and third defendants have not examined the first defendant undersection 219 of the Civil Procedure Code held in favour of the plaintiffon the ground that there was no proof that the execution of the deed P 1has rendered the first defendant insolvent.
It was urged in appeal for the second and third defendants that theplaintiff was not entitled to an order in his favour in view of D 2. It wascontended that an unsuccessful claimant filing an action under section
424WIJEYEWARDENE J.—Carotis Appuhamy r. Silva.
247 should establish the right which he claimed to the property in disputeand the plaintiff in this action having formulated his claim in paragraph 2of the plaint as the right of ownership under P 1 must necessarily fail ashe had parted with his rights under P 1 even before the seizure. Theappellant’s Counsel relied in support of his argument on a number ofdecisions including Wijewardene v. Maitland Abdul Coder v. Annamalai Silva v. Nona Hamine" and Vaithia Nathar Aiyar v. Sooriya TambySuppiah 4 as establishing the principle that while the material issue at aclaim inquiry was one possession the question that arose for adjudica-tion in an action under section 247 of the Civil Procedure Code by anunsuccessful claimant was one of title.
The respondent’s Counsel argued that all that section 247 required anunsuccessful claimant to do was “ to establish the right which heclaimed to the property in dispute ” and that the right mentioned in thissection was identically the right referred to in section 241 by virtue ofwhich the claimant claims to have “ some interest in ’’ or “ to be possessedof ” the property seized. He relied stronglf on a recent decision of thisCourt in Julius v. Podi Singho *. That case does not appear to me tosupport to any appreciable extent the various propositions of lawenumerated by the respondent’s Counsel. In the course of his judgmentin that case, Koch J. stated: —
“ I am, therefore, of opinion that if it came to a question of title allthe plaintiff would have to establish is title superior to that of the judg-ment-debtor. The fact that a third party had a title prima facie superiorto than of the plaintiffs is immaterial” .- –
In the present case the plaintiff, on his own showing, had no titleto the land after he conveyed his rights by D 2. The plaintiff who hasnot even a shadow of a' title, as he has divested himself to whatever titlehe had, cannot possibly establish a title superior to that of the judgment-debtor. Morever, the only right which the claimant put forward at theclaim inquiry was a right to possession under P 1. The order madeat the claim inquiry was to the effect that he had no such right to posses-sion. That order would be conclusive against him unless he gets itreversed in an action under section 247. He cannot in the presentaction expect to establish such a claim in view of his admission that beforethe date of seizure he had divested himself of all rights under P 1.1 am of opinion that when the plaintiff made that admission it becameunnecessary for the learned District Judge to consider whether P I wasexecuted in fraud of creditors. It appears to me that if any other viewis taken with regard to the effect of D 2, it will result in encouragingparties who have no interest whatever in a land seized under a decree ofCourt to come forward and initiate a claim proceedings and thus delaythe due execution of writs.
The plaintiff made a certain specified claim at the claim inquiry, andhas put forward the same claim in the present action. He cannot beallowed in the Appellate Court to put forward his claim to possession
(1893) 3 G. L. Report* 7.5 (1906) 10 N. L. R. 44.
(1896) 2 N. L. R. ICC.• (1924) 6 G. L. Rec. 21.
(1937) 39 X. L. R. 164.
Wimalasuriya v. de Saram.
425
on some other ground as it would be distinctly prejudicial to the secondand third defendants who are seeking the assistance of the Court to executea decree thay have obtained legally.
I set aside the judgment of the District Judge and dismiss the plaintiff’saction with costs. The second and third defendants are entitled to thecosts of the appeal.
Poyser S.P.J.—I agree.
Appeal allowed.