Hinni Appu v. Ounaratne.
1946Present: Canekeratne J.
HINNI APPU et al., Appellants, and GUNARATNERespondent.
119—C.R. OaUe, 24,314.
Res judicata—Action under section 247 of Civil Procedure Code brought byjudgment-creditor against claimant and judgment-debtor—No conflict ofinterest between the defendants—Action brought subsequently by claimantagainst judgment-debtor regarding same property—Decree in 247action cannot operate as res judicata.
Where, in an action instituted by a judgment-creditor under section247 of the Civil Procedure Code against the claimant of the propertyseized in execution, the plaintiff stated that he claimed no relief againstthe judgment-debtors who were made defendants and they filed noanswer and took no active part in the litigation—
Held, that the dismissal of the action could not operate in thecircumstances as res judicata in an action subsequently instituted bythe claimant against one of the judgment-debtors for declaration oftitle in respect of the same property.
PPEAIi from a judgment of the Commissioner of Requests, Galle.
C. V. Ranawake, for the defendants, appellants.
O.P. J. Kurukulasooriya (with him Conrad Diasf, for the plaintiff,respondent.
Cur. adv. vull.
CANEKBRATNE J.—Hinni Appu v. OvnarcUne.
August 28, 1946. Canekeratjste J.—
This is an action for declaration of title to a land called Lot B of WiUe-kambara instituted by the plaintiff against the defendants ; according tothe latter one Kanatege Siman, and not Kanattege Singhoappu, as theplaintiff alleged, was the original owner of the land and it passed bymesne conveyances to V. Gabrinehamy, the wife of the first defendant.Five days before the date of trial the plaintiff amended the plaint bypleading the judgment in C. R. Case No. 22,031 as res judicata in favourof the plaintiff.
The learned Commissioner after hearing evidence came to the con-clusion that the judgment pleaded was res judicata as between plaintiffand the first defendant and gave judgment for the plaintiff.
One B. D. Samarasinghe (plaintiff in a partition action) appears tohave obtained an order for costs against the first defendant and his wifeGabrinehamy ; when the right, title and interest of these two persons inLot B of Willekambara was seized in execution of the writ at the instanceof Samarasinghe, the plaintiff in the present case claimed the same.As the claim was upheld Samarasinghe instituted action No. 22,031 interms of section 247 of the Code (Cap. 86) against the claimant (thepresent plaintiff) who was made the third defendant, the judgment-debtors, Gabrinehamy and her husband Hinniappu (first defendant in thepresent action) being made the first and second defendants. The plaintiffstated in the plaint that he claims no relief from the first and seconddefendants ; he pleaded that a cause of action has accrued to him to suethe defendants for a declaration that the first and second defendants areentitled to Lot B and that Lot B is liable to be seized under the writ.
The first and second defendants do not appear to have retained aproctor or to have filed answer. The third defendant filed answerclaiming that Lot B is a portion of another land called Paragahawatta:he denied that it belongs to the first and second defendants. After trialthe learned Commissioner .dismissed the plaintiff’s action.
It is contended by Counsel for the appellants that for the applicationof the rule of res judicata there must be a conflict of interest between thedefendants and he refers to the decisions in Fernando v. Fernando1, and inRamchandra Narayan (Original Defendant), Appellant v. NarayanMahadev and another (Original Plaintiffs), Respondents 2.
The contention of the respondent (which was supported by counsel’sreference to the cases of Senaratne n. Perera et al., 3 Jayasundera v.Andris et al.4 and Banda v. Banda and anotherB) was that actionNo. 22,031 was a suit between the plaintiff and the first and seconddefendants on one side and the third defendant on the other and that therewas a conflict of interest that was finally decided against the first andsecond defendants. * I was, at first, taken up by his argument but furtherreflection has shown me that the real question in this case is whether thefirst defendant and his wife, Gabrinehamy, were in point of fact partiesagainst whom a binding judgment could be entered in that action.
1 (1939) 41 N. L. R. 208.8 (1924) 26 N. L. R. 225.
* 1. L. R. (1886) 11 Bombay 216.* (1940) 41 N. L. R. 569.
8 (1941) 42 N. L. R. 475.
CANEKERATNE J.—Hinni Appu v. Ounaratne.
A judgment-creditor can make an application for the execution of thejudgment: execution is effected by means of a writ or order addressed tothe Fiscal by virtue of which he seizes the property of the debtor for thepurpose of bringing it to sale ; a claim may, however, be preferred to theproperty seized. Sections 241 to 244 of the Code deal with claims. Theobject of section 241 is to give a claimant a speedy and summary remedy.The Court may make an order releasing the property from seizure (seotion244), disallowing the claim (section 245), or continuing the seizure subjectto a mortgage or lien (section 246). The party against whom the orderis made can bring a regular action : unless such party institutes anaction to establish the right which he claims to the property in disputewithin a specified time the order made against him is conclusive (section247). The only persons who can institute an action under section 247are the execution-creditor, the claimant and a mortgagee or holder of alien ; no such action can be brought by the judgment-debtor *. Thedecree-holder against whom the order is made (under section 214) may suethe successful claimant for a declaration of his right to seize and sell theproperty that had been released from seizure. To such an action thejudgment-debtor is not a necessary party. This rule is subject tocertain exceptions which are immaterial for present purposes 1 2.
A party seeking to enforce a claim would know that his right is thesubject of active controversy between him and his opponent and it is hisduty to present to Court all the grounds relating to the cause of actionupon which he expects a judgment in his favour. For the judgment inan action on any point is conclusive as to that point in every subsequentaction between persons who were parties to the former action underwhich they cannot canvass the same question again in another actionalthough perhaps some objection or argument might have been urgedupon the first trial which would have led to a different judgment, and wasnot urged.
On the other hand a judgment in personam is no evidence of the truthof the decision or of its grounds between strangers or a party and astranger : the reasons for this rule are commonly stated to rest on theground of res inter alios acta (or judicata) alteri nocere non dehet, it beingconsidered unjust that a man should be affected, and still more be bound,by proceedings in which he could not make a defence, cross-examine orappeal3.
A person who is joined as a defendant in an action though no relief isclaimed against him is merely a formal party to the proceedings. It maysometimes happen that a matter put in issue in anaction by a plaintiff maynot be in issue between him and such a defendant. The first defendantwas not a necessary party to action No. 22,031 : as he knew that no claimwas made against him and his wife he would. ordinarily refrain fromtaking any steps to assert his rights in that action ; moreover he was
1 Kiriwatte v. Siribaddana et at. (1908) 1 S. O. D. 81.
Silva and another v. Ooonewardana (1892) 1 S. C. R. 321.
3Panditta v. Dawoodbhoy (1938) 40 N. L. R. 191.
3 Phipson on Evidence (8th Ed.) 419, 420.
WIJEYEWARDENE J.—Ohandranayaka Hamine, v. Qunasekere.
inopa consilii and did not take any active part in the litigation. It istrue he gave evidence at the trial but this is not of much importance forthe first defendant’s presence in the -witness-box was due, as suggested ]bythe appellant’s Counsel, to the fact that he was called by the plaintiff.
In the circumstances it would be inequitable to hold that the firstdefendant is precluded from asserting his rights to the land by theexistence of the judgment in the previous action.
The learned Commissioner seems to have directed all his attention tothe question of res judicata. He does not consider the question ofpossession at all but at the close of his judgment he answers issue 5 thus—plaintiff has prescriptive possession. This affords very little justificationfor respondent’s contention that he has succeeded on the question ofprescription.
The appeal is allowed ; the plaintiff’s action is dismissed with costs inboth Courts but I reserve the right to the plaintiff, if he is so advised,to bring an action on the ground of prescriptive possession against theappellant, provided all costs of the present proceedings have been paidby the plaintiff.