016-NLR-NLR-V-18-CHELLIAH-v.-SINNACHUTTY.pdf
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Present: Pereira J.
m*.CHELLIAH v. SINNACUTTY.
347—G. B. Anuradhapura, 7,440.
Default of claimant to supply stampsto isstteprocess—Dismissalofclaim'*'
Order not tantamount to an order disallowing claim under $. 84ft ofthe Civil- Procedure Code—New claim to same property.
An order 11 dismissing with costs ” a claim to property seized inexeontion owing to default on the part of the claimant to supplythe necessary stamps to issue notices to parties for the inquiryis not tantamount to an order ** disallowing" the claim undersection 346 of the Civil Procedure Code. It is rather tantamountto an order merely rejecting the claim with a refusal to investigateit. There should be an investigation before an effectual ordernnder section 244 or section 246 is made. Under section 248 itis incumbent on the claimant to adduce evidence in the firstinstance to show that atthedate ofthe seizurehehad some
interest in or was possessed of the property seized, and if on* theday fixed for the inquiry he * absent himself and thus make defaultin discharging this onus,theproperorder wouldbeanorder
disallowing his claim, as the proceedingdwas in effect an investigationof the claim.
T
HE facts are set out inthefollowing judgmentof theCom-
missioner of Bequests (M. Prasad, Esq.): —
The plaintiff claimed the property seized nnder writ in C. B. 7,833,
Anuradhapura, before the Fiscal on January 29,1914. The Fiscal
reported the claim to Court on February 4, 1914. No steps were taken
by the claimant (the presentplaintiff) till February 21,1914,when the
judgment-creditor moved thatthe claim bedismissedwithcosts, as
claimant took no steps in the matter. The Court allowed the. motion.
•»
On February 27, 1914, the claimant sent a petition to Fiscal, North-Central Province, alleging that the first -claim was dismissed as he wasignorant of the rules of law, and requested the Fiscal to entertain asecond claim.
The Fiscal referred the matter to Court. Notices were issued, butthe claim (second) was againdismissed byCourt on March17, 1914,
as the .claimant was absent on the date of the inquiry.
No application was made to Court to set aside its order of February21, 1914.
On March 17, 1914, the claimant instituted the present action undersection 247, Civil Procedure Code. Defendant now states that the actionhas been brought too late, i.e., it has not been brought within fourteendays of the date of dismissalof first claim(February21, 1914). The
plaintiff contends that the action is not too late, as the date from whichthe period of fourteen days should run would be the date of dismissalof the * second claim (March 17, 1914).
•J. N. A 99008 (8/50)
1014.
CkeUiahv,
Sinnacutty
( « )Mr. Thambapillai, for defendant, drew my attention to Balo&inghatn'sReports, vol. III., p. 898 (Velaithupillai v. 8angarapiU<u).
In that case it was held that it was not the duty of the Court, bat thatof the olaixnant, to take steps regarding issues of notices to parties^ in aclaim inquiry.
It would consequently appear that the order of dismissal on February21, 1914, was valid, inasmuch as the claimant took no steps in the matterfor nearly three weeks.
Bonser C.J/a judgment in 8 N. L. R. 27 (Kiri Banda r. Assen) dearlysuggests that the proper course for the claimanthavebeen . to
apply to the Court to re-open the inquiry. No such,, steps were takenin this matter.
Mr. Nana Batna Baja suggests that the claim on February 21, 1914,was not properly dismissed, a* there is no provision under section 215.Civil ProcedureCode, for dismissalof aclaim forfailing tosupply
stamps. I think action 246 of the Civil Procedure Code is not exhaus-tive rcpr&og the circumstances under which a claim should be dismissed,$£& consequently the ordinary rules regarding dismissal of inquiriesunder the summary procedure would apply to claim inquiries also.
VelaUhupillai c. 8angarapUlai*s case referred to above was dismissedon similar grounds; and thatcase goes further,inasmuchasitwasheld
that the District Judge was justifiedin' notre-openingthematterasthe
claimant had been guilty of gross laches.
Plaintiff's counsel took a second objection to the dismissal, of the claimon February 21, 1914. They contended that as claimant had not takenany steps the Court was not justified in dismissing' the claim, but onlyin rejecting it.°
I do not think this will be of any avail to plaintiff. It is clearlystated in the- Civil Procedure Code, under the definition of the word** decree/' thatthe rejection of a plaintamounts tothedecreeofthe
Court.
If the claimant thought that the order of February 21, 1914, wasnot in order,his proper remedywouldhave beentoapplytothe
6opreme Court to vacate thatorder.
Under the circumstances, 1thinkthat theorderofFebruary21,1914,
must stand, and that the period of fourteen days for a section 247action must be reckoned from the date of dismissal of first claim.
I dismiss plaintiff's action with costs.
The plaintiff appealed.
J. 8. Jayewardcne, for the plaintiff, appellant.—There was noinvestigation into the first claim. There was therefore nothing, toprevent the claimant from preferring a new claim. The order ofthe Commissioner refusing to investigate the claim is wrong.Counsel relied on Fanseka v. XJkkurala.1 This case is a bindingauthority.
Balaaingham, for respondent-.—In Fonseka v. Ukkuralc1 ilfe factswere quite different. There the claim was fixed for the 14th of a
» (1912) 15 N. h. R. 219.
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month, but the claim was called by mistake on the 1st oi the month,and dismissed by mistake on the ground that the parties wereabsent-
The observations of Lascelles C.J. at page 220 are merely obiter.Moreover, the Indian oase (12 Cal. 168) on which the Chief Justicerelies bases the decision on other grounds. The ^observations ofField J. were obiter. Muttu Menilta v. Appuhamy1 is an authorityfor the proposition that where the claim is dismissed the only remedyis to bring an action under section 247 of the Civil’Procedure Code.See also Sinnatamby v. Ramanathan, 3 Silva v. Wijesinghe,
V claithupillai v. SangarapiUai- *
Cur. adv. vnlt.
November 18, 1914. Pereira J.—
In this case the simple question is whether an order “ dismissingwith oosts ” a claim .to property seized in execution owing todefault on the part of the claimant to supply the necessary stampsto issue notices to parties for the/inquiry is tantamount to an order“ disallowing ” the claim under section 245 of the Civil Procedure'Code. In the case Velaithupillai v. SangarapiUai * it was heldthat after a claim was forwarded to the Court by the Fiscal it wasthe duty of the claimant to supply t-he necessary stamps to issuenotices .to persons who should be parties to the inquiry and to takeother steps to bring about Ihe inquiry, and this Court refused tointerfere, in revision, with an order refusing .to open up an ex parteorder “ dismissing the claim ” for default on the part of the claimantto take the steps referred to above. Whether the Order “ dismissingthe claim ” in that case had the effect of an order “ disallowing aclaim ” under section 245 does not appear to have been decided.In Fonseka v. Ukkurala 3 the claim inquiry had been fixed for the14th November, 1911, but by some mistake the case was, calledon the 1st November, and the order then made was “ Claimantabsent, and has failed to issue notice; claim disallowed, " and it washeld that that order could not be -sustained as an order disallowingthe claim under section 245, because it could not be said that therewas any investigation of the claim. In Sinnatamby v. Ramanathan 3the order made was: “ Parties absent; claim set aside. " Therewas nothing to show what led up to the order, and it was held that,nothing appearing to .the contrary, the presumption was that theorder was duly made, and, inasmuch as it was an order that theCourt had jurisdiction to make, it should be considered to be an orderduly made under section 245. In Silva v. Wijesinghe * it was heldby the Collective Court that even where a claimant abandoned his claimand left the Court without any evidence in suppoi"t of it, and the claimwa? thereupon disallowed, he might bring an action under
' (1911) 14 Ar. It. 320.* 2 C. L. f{. 143.
3 am) 2 Bat. 38.* (1907) 3 Bat. 292.
(1912) IS N. /?. 219.
10
1914.
Ohttliah v.Sinnaeutt'j
1914,
PSBEIKA J.
CheUinh v.Sinnncutty
( «8 )
section 24*5 to establish his right to the property claimed byhim. And lastly, in Muttu Menika v. Appuhamy1 the claimant’aclaim was dismissed for default of appearance. That is all that canbe gathered from the report, and it was held that that was anorder having .the effect of an. under section 245 disallowing aclaim. The Indian case of Mohadeb Mundul v. Modhoo Mundul -is strong authority in support of the proposition .that if a claim ismade aud dismissed or struck off without any adjudication in themanner provided for by section 244 or 245 of the Code, the order isnot to be deemed to be an order ** disallowing ’* the claim undersection 245. From the authorities cited above, it may fairly begathered that there should be an investigation before an effectualorder under section 244 or 245 is made. Now, under section 248of the Code it is incumbent on the claimant to adduce evidence inthe first instance to show that at the date of the seizure he hadsome interest in or was possessed of the property seized, and if onthe day fixed for the inquiry with notice to all parties the claimantabsent himself, and thus make default in discharging the onuson him under section 243 referred to above, the proper order wouldbe an order disallowing the claim, and the order would have thefull effect of an order under section 245, because the proceeding thatresulted in it was in effect an investigation of the claim. In thepresent case what occurred was neither an actual nor constructiveinvestigation. No date was fixed for inquiry, and the appropriate orderwould have been an order merely rejecting the claim rather than onedismissing it. I read the order " dismissing the claim ” as amountingto nothing more than 'an order rejecting it, and I set aside the orderappealed from with costs and remit the case for further proceedings indue course.
Set aside.
♦
* (1911) 14 N. L. 3. 329.
8 16 Weekly Report $9.