014-NLR-NLR-V-36-DE-COSTA-v.-LOWE-et-al.pdf
De Costa v. Lowe.
71
1933
Present: Dalton A.C.J. and Koch A.J.
DE COSTA v. LOWE et al.
254—D. C. Chilaxo, 8,374.
Estoppel—Property sold in execution of writ—Judgment-creditor estoppedfrom denying that property belonged to judgment-debtor—EvidenceOrdinance, s. 115.
A person, who as judgment-creditor seized a land, under a writ takenout by him, is estopped from denying in a subsequent action that theland was the property of the person against whom he caused it to beseized and sold.
72
DALTON A.C.J.—de Costa v. Lowe.
^^PPEAL from a judgment of the District Judge of Chilaw.
H. V. Perera, for plaintiff, appellant.
Ranawaka, for defendant, respondent.
October 6, 1933. Dalton A.C.J.—
The plaintiff brought this action for declaration of title to 10 parrahsof a land called Neruppandi Mullavayal. The question arising on thisappeal is whether he is estopped, by his conduct in a certain previouscase to which I will refer, from denying that the land that he claims wasthe property of A. J. Fernando from whom the defendants derive theirtitle.
It appears that in District Court, Chilaw, case No. 5,525, the plaintiffwas the judgment-creditor and he had the property in question in thiscase seized under a writ taken out by him, as belonging to the estate ofA. J. Fernando. That property was then put up for sale, and he himself,by his representative, was a bidder at the sale, but it was knocked downto one Mary Elizabeth Fernando, who is the wife of the second addeddefendant.
There is not the slightest doubt upon the facts that the plaintiff set upthat the property was the property of A. J. Fernando. He gave writteninstructions through his proctor in that case to issue process against theland in question and he was intending himself to buy the land. Itseems to me that as clearly as possible he represented to everybody atthat sale that he, at any rate, was not the owner, and that as far as hewas aware A. J. Fernando was the owner. The learned Judge, on thesefacts, has held that Ihe plaintiff has, by his conduct, represented that A. J.Fernando was the owner of the whole field in question which was seized.It follows from that finding that he has represented that he, the plaintiff,was most certainly not the owner of the field in question.
The facts of this case seem to me to fall within the provisions of section115 of the Evidence Ordinance, to the effect that where a person has byhis acts intentionally caused another person to believe a thing to be trueand to act in that belief, he is not to be allowed in any suit or proceedingby himself or by his representative to deny the truth of that thing.
It was urged in the course of this appeal that he did not “ intentionally ”cause Mary Elizabeth Fernando to believe that the property was theproperty of A. J. Fernando, but judging his intention from his acts heintentionally caused the land to be seized as the property of A. J.Fernando, had it put up for sale as such, and no doubt intended biddersat the sale to believe the same. He himself bid for it as the property ofanother, and the purchaser, Mary Elizabeth Fernando, purchased it onhis representation, in the proceedings that he took, that it was the propertyof another and not the property of himself. It seems to me that on thefacts here the case falls within the section I have referred to, and theappellant, the plaintiff, was estopped f.rom denying the title of A. J.Fernando.
GARVIN SPJ.—Coul v.' Concedon,
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We have been referred in the course of the argument to a case, SadrisAppu v. Comelis Appu That case differs from the one before us inrespect of one particular circumstance. There the judgment-creditolseized his own property as property belonging to the judgment-debtor,but he became aware of the fact that it was his own property shortlybefore the sale. He, nevertheless, allowed the sale to go on and it wasknocked down to the purchaser.
There are, however, certain principles laid down by the learned ChiefJustice in that case which seem to me to govern this case, which is nowbefore us. It is true there is an aggravating circumstance in that casewhich does not exist in the case before us, but it seems to me on principlethat case would also apply to the case now before the court. Even,however, if it did not so apply, as I have stated, in my opinion the casebefore us falls within the provisions of section 115, and the appeal must,therefore, be dismissed with costs.
Koch A.J.—I agree.
Appeal dismissed.