ISOHAMINE v. MUNASINGHE

053-NLR-NLR-V-29-ISOHAMINE-v.-MUNASINGHE.pdf


( 277 ')
Present: Garvin, Dalton, and Lyall Grant JJ.ISOHAMINE v. MUNASINGHE.
144—D. C. Kalutara, 13,275.
Action under section 247—Action—Claim inquiry—Absence of claimant—Order made after investigation—Civil Procedure Code, ss. 241,243, 245 and 247.
An order disallowing a claim, in the absence of the claimant onthe date fixed for inquiry, of which the claimant had notice, isan order to which the conclusive character given by section 247 of theCivil Procedure Code attaches.
A
PPEAL from a judgment of the District Judge of Kalutara.The facts are stated by the learned Judge as follows: —
The property in dispute wa.s seized on January 29, 1921, underwritis6ued in C. R. case No. 8,861. The plaintiff preferred a claimto it on March 2, 1921, the Court fixed the matter for inquiry for
1928.
( 278 )
1928.
I sohaminet*.
Munasinghe
April 22, 1921, and directed that the execution-creditor be noticed.The notice was duly taken out by tho claimant; on the date fixed forinquiry the plaintiff (claimant) was absent. There was no returnto the notice on the execution-creditor. The Court made orderdismissing the claim. The plantiff did not bring an action undersection 247 of the Civil Procedure Code. The property in disputewas sold and purchased by the defendant in the present suit. Thelearned District Judge held that the order in the claim-inquiry wasconclusive against the plaintiff.
F. de Zoijsa (with A. Ij. Jaijasuriya), for plaintiff, appellant.—Theproceedings of April 22, 1921, are recorded thus:“ No return
to notice; claimant absent; creditor absent; claim dismissed.”Section 247 gives a conclusive effect only to orders made undersection 244-245. These sections contemplate an investigation beingheld. It is submitted that these proceedings .show that there wasnot and could not be an investigation as both parties were absent onthat date. Hence the dismissal of the claim does not operate asres judicata. Section 242 indicates that there is a possibility of aclaim on which no investigation takes place. The case on whichthe learned Judge relies has no application to the facts of the presentcase. In that case Maracair v. Maricair 1 the date was duly notifiedto both parties. Here the creditor did not receive notice and henceboth parties were absent. It could not be said in the present casethat it was ripe for investigation. The furthest Courts have goneis to hold that there lias been a constructive investigation (Chelliah r,Sinuacuttij2; Silva r. Wijeijzhujhc *)
M. T. de S- A-meresckere, for respondent, relied on Maracair r.Maricair (supra).
Jununrv 27, 1928. Garvin J.—
The short point for decision in this case is whether an order dis-missing a claim to property seized in execution of a writ madeunder the circumstances hereafter set forth is one which is conclusiveinasmuch as no action was brought by the claimant to establish theright which he claimed within the period specified in section 247 ofthe Civil Procedure Code.
The material facts as found by the learned District Judge are setout in his judgment as follows: —
The property in dispute was seized on January 29, 1921, underwrit issued in C. R. case No. 8,861. The plaintiff preferreda claim to it on March 2, 1981. The Court fixed the matter
218 N. L. R. 65.
» 22 A L. R. 441.
* 2 C.L.R 143
( 279 )
for inquiry for April 22, 1921, ami directed that theexecution-creditor be noticed. The notice was duly takenout by the claimant. On the date fixed for the inquirythe plaintiff (claimant) was absent. There was no returnto the notice on the execution-creditor. The Court madeorder dismissing the claim. The plaintiff (claimant) didnot bring an action under section 247 of the Civil ProcedureCode. The property in dispute was sold and purchasedby the defendant in the present suit.”
It will thus be seen that the claimant with notice of the dateappointed by the Court for the investigation of .his claim .failed toattend the sitting of the Court for the investigation and failed alsoto cause any material to be placed before the Court in support of hisclaim.
It is urged, however, that no order disallowing a claim is conclusiveunless it be showD to have been made after actual investigation of thefacts and circumstances of the claimant’s case or of the respectivecases of the claimant and the opposite party. This contentionis based largely upon the following passage in the judgment ofShaw J. in Pcrera v. Fernando1: “ Section 245 of the Code appearsto me to relate to a disallowance of a claim after an investigationinto the merits under the previous section . . . .” It isevident, however, that in that ease the Court refused to investigatethe claim in the mistaken belief that a claim could not in law bemade to an undivided share. Under the circumstances, Shaw J.,if I may say so, rightly held that there had been no investigation.This is the effect of his judgment and the passage quoted read in itscontext does not appear to have been intended to lay down anywider proposition than that an order of dismissal made without anyinvestigation of the claim is not an order which attracts to it the.conclusive effect of section 247. The procedure to be followed inthe even of any claim being preferred to property seized in exe-cution is contained in sections 241 to 247 of the Code. Generallyspeaking, under the Civil Procedure Code proceedings in Court musteither conform to the rules of regular procedure or of summaryprocedure. But the procedure in the case of claims is of a specialcharacter—it is neither “ regular procedure ” nor ‘‘ summaryprocedure.” The Court is required to investigate the claims ” in asummary manner.” The intention is manifest that a claim shouldbe dealt with expeditiously so that the execution of the writ shouldnot be delayed or defeated; and to this end the Court is expresslyempowered to refuse to investigate a claim which appears to havebeen designedly and unnecessarily delayed with a view to obstruct
parties.
29/221928.
Oakvin J.
Isohuttiinr
V.
Muna ftlntjht
1 1 e. W. J?. 17.
( 280 )
1928.
Garvis J.
Ixohamine
v.
M tJuaxinghe
What is contemplated is a proceeding in Court of u summarynature directed to the speedy investigation of the claim preferredand its disposal. It is necessary to the due execution by a Court ofits writs and is also in the interests of all persons concerned that aclaim to property seized when once made should be disposed of byan order which is final if the matter is not prosecuted further underthe provision of section 247. Now with reference to this proceedingit is enacted by section 243 as follows:—>
The claimant or objector must on such investigation adduceevidence to show that at the date of the seizure he hadsome interest in, or was possessed of, the propertyseized.”
The words ” on such investigation ” can only mean at the sittingof the Court for the investigation of the claim.
Then follow three sections—244 to 246—which specify the variousorders which the Court may make “ upon such investigation." Theorders there specified are (a) an order allowing the claim; (h) anorder disallowing the claim; (c) an order directing the continuanceof the seizure but subject to a mortgage or lien in favour of someperson not in possession.
If at the sitting of the Court or, to use the language of section 243,“ on such investigation ” the claimant fails to adduce evidence theCourt can but disallow the claim since the claimant having failed toestablish that he had an interest in or was possessed of the propertyit may surely be inferred that the judgment-debtor and not theclaimant is in possession. This is a conclusion at which the Courtarrives 44 upon such investigation." There is ample authority forthe proposition that an order disallowing a claim in such circum-stances is one to which the conclusive character given by section 247attaches. It is an order under section 245—for what difference isthere between a decision which proceeds upon a disbelief of evidenceand one which proceeds upon an absence of evidence in support ofthe claim ? (Vide Hoy v. Do$*i(t l; Hajrah v. Tajooddeen-; Chelliahv. Siunacutty 3; Mararair v. Marirair *) These judgments, if I mayrespectfully say so, are in accordance with the plain and naturalmeaning of the words of the sections with which we are concernedand have checked a certain tendency to attached to the words “ uponsuch investigation ” a meaning which would render it impossiblefor the Court to make an order disposing of the matter of the claimwhich would be final, subject- to the right of action conserved bysection 247 in any case in which the claimant, in disregard o.f theduty cast on him by section 242 fails to adduce any evidence orcause any evidence to be adduced to establish the right he claimed.
1 {1873) 20 W. R. 345.3 {1914) 18 N. L. R. 65.
8 {1874) 21 Tl R. 409.4 {1921) 22 N. L. R. 441.
( 281 )
At a sitting of the Court for the purpose of investigating a claimduly appointed and of which notice has been given the Court isentitled to proceed judicially to determine the matter of the claimupon a consideration of the evidence where evidence is adduced,and in the absence of evidence when the claimant adduces noue,and the order so made is, in my view of these sections, an order madeupon investigation.
The facts and circumstances of the case under consideration canhardly be distinguised from the case of Maracair v. Maricair (supra)in which it was held that an order disallowing a claim where theclaimant with notice of the date appointed for the investigationwas absent and caused no evidence of his claim to be adduced wasconclusive unless followed by an action under section 247. It isurged, however, that there is a difference in that there was no returnto the precept directing service on the execution-creditor and uponthis circumstance counsel founded the argument tjhat the Court wasnot in a position to proceed with the investigation. The absenceof the return does not necessarily mean that the judgment-creditorwas not served with notice, and it is worthy of note that though fiveyears have elapsed since the order on this claim was made noevidence has been offered to establish that such service had nottaken place.
But I cannot in any event assent to the argument that the Courtwas unable to proceed with the investigation. Had the claimantbeen present the Court might have sent for the return and accordingas it was informed that service had not been effected, in its discretionproceed with or postpone the investigation. But when the claim-ant who was bound by law to adduce evidence was not present inperson and had not arranged for evidence to be adduced in supportof his claim, the Court was, I think, entitled in the absence of suchevidence to make an order disallowing the claim. For the reasonsalready stated, that order is in my opinion conclusive when theclaimant did not within the period prescribed in section 14 institutean action to establish the right which he claimed to the property.
This determination is conclusive of the appeal which is accordinglydismissed with costs.
Dalton J.—I agree.
Lyali, Grant J.—
This is an appeal from a judgment of the District Court ofKalutara dismissing an action for declaration of title.
The property in dispute was seized on January 29, 1921, under awrit issued in a Court of Requests case. The plaintiff preferred aclaim to it on March 2, 1921.
1928.
Garvin ./.
Jsohaminfi
Mutitirtnyhe
( 282 )
1928. The Court fixed the matter for inquiry for April 22. 1921, mddirected that the execution-creditor be noticed. The notice wasGrant J. duly taken out by the claimant. On the date fixed for the inquiryl*ohwnine the plaintiff was absent and it was ascertained by the Commissioner
v. that there was no return to the notice on the execution-creditor.Mnnusinghe
The Court made an order dismissing the claim, presumably,purporting to act under section 245 of the Civil ProcedureCode.
The claimant failed to take steps under section 247 and theproperty was purchased by the defendant upon a Fiscal's transferdated February 1, 1922.
On May 21, 1926, the plaintiff, who is the mother of the judgment-debtor in the former case, brought the present action for declarationof title.
The learned District Judge has dismissed the action on the groOndthat the claimant was in default on the clay fixed for the inquiry, andthat the order of dismissal was therefore tantamount to an orderafter investigation under section 245 of the Civil ProcedureCode.
As no proceedings were taken under section 247 the order wasconclusive.
The learned District Judge rejected the argument advanced forthe plaintiff that as there was no return to the notice on the exe-cution-creditor on the date the claim was dismissed, no inquiry couldhave been held by the Court, and that the failure to investigate thecase was therefore not due to the plaintiff's default but to the fact ofthe failure to serve the notice.
It is clear from the authorities that on the one hand where no datehas been fixed for the inquiry or where by a mistake of the Court anorder has been made before the date fixed for inquiry has arrived,no valid order can be made under section 245. See the case ofFonseka v. TJkkuarala. 1
On the other hand where a date has been fixed for the inquiry andthe claimant has failed to appear, a dismissal of his claim unde**section 245 has been held to be final. Sfee the cases of Muttu Menikav. Appuhamy,2 and Maracair v. Martcair*
The principle which appears to underlie these cases is that whilein the ordinary course a judgment dismissing a claim can only bemade after investigation, yet if the Court has afforded the claimantan opportunity of leading evidence in support of his claim, and hehas failed to take advantage of this opportunity, the case falls to bedealt with as if an investigation had actually been held.
1 75 -V. L. R. 219.2 14 N. L. R. 329.
a 22 N. L. R. 438.
( 283 )
Section 241 provides that on receipt of a claim in respect ofproperty seized in execution the Court shall proceed to investigatethe claim in a summary manner. Summary procedure is dealt within chapter 24 of the Code, and section 382 provides that if, on the dayappointed for the determination of the matter of the petition, thepetitioner does not appear before the Court in support, the Courtshall dismiss the petition.
It appears to me therefore that if any effect is to be given to thewords “ in a summary manner in section 241, those words meansthat on the failure of the claimant to appear on the day duly-appointed for the investigation of his claim, the Court is not only-entitled but is bound to dismiss the claim.
In the absence of the claimant it does not seem to me that theCourt is either bound or entitled to inquire into questions relatingto the service of notice on the creditor, questions which no doubtwould have arisen had the claimant appeared.
If the claimant had appeared, presumably, further time wouldhave been given for the service of notice and a later date fixed forthe hearing.
What the plaintiff in the present action seeks to do is in effect totake advantage of her laches and to revive a claim which she failedto prosecutive five years previously'.
I agree to the judgment proposed by my brother Garvin.
1928.
LYAIjTjGrant J.
Isohaminhe
v,
M Missing*
Appeal dismissed.