103-NLR-NLR-V-19-JANIS-APPU-v.-BABA-APPU-et-al.pdf
( 406 )
1917.
Present: De Sampayo J.
JANIS APPI7 v. BABA A-. i J et ah435—C. B. Negombo, 84,477.
Paulian action—Action under s. 247 of tb' Civil Procedure Code—Jurisdiction—Claimupheldby District■•urtof Negombo—Action
in Court of Requests of Negombo to have deed of transfer declaredto have been executed in fraud of creditors and land declared liableto seizure and sale—Land situated outside jurisdiction of Court ofRequests.
The plaintiff brought this action in tL;. Court of Bequests ofNegombo against his' judgment-debtor (first defendant) and thesuccessful claimant(seconddefendant) tohave it declaredthat the
deed of transfer executed by the first defendant in ' favour of thesecond defendant -was in fraud of creditors, and that the propertywas liable to be seized and sold under 1 t plaintiff's writ in D. C.Negombo, No. 10,501. Thelands weretuated,and thedefendants
resided,and the deed oftransfer wasexecuted, at Tawalanpitiya,
a placeoutside the locallimits of thejurisdiction of the Court of
Requests of Negombo.
Held, that the Court -of Bequests of Negombo has no jurisdiction,whether the actionbe looked upon as aP-.dianaction oran action
under section 247 of the Civil Procedure Code.
The questions for determination in anaction under section 247
relate to and involve a declaration of title to the property, and theaction, subject to other factors which nay affect the jurisdiction .of theCourt, should bebrought inCourt within whose local
limits the property iB situate.
A
PPEAL from a judgment of the Additional Commissionerof B&quests, Negombo (M. S. Shresta, Esq.). The facts are
set out in the judgment.
E. G. P. Jayatileke, for plaintiff, appellant.—The Court ofBequests of Negombo had jurisdiction to try this case, as the causeof action arose within its limits. The defendant preferred his
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claim in Negombo, therefore the plaintiff was entitled to institute 1917.the action under section 247 in Negombo. The cause of action was jan*s Apputhe claim made by the defendant. [De Sampayo J.—In Werthelia vJBabaAppuv. Daniel Appuhamy 1 it was held that the cause of action undersection 247 is the wrongful seizure.] That applies to an actioninstituted by the unsuccessful claimant. It follows from Werthelisv. Daniel Appuhamy 1 that when the unsuccessful creditorinstitutes the action, the cause of action is the claim preferred bythe claimant. [De Sampayo J.—This action is a Paulian action,and the cause of action with regard to it is the execution of thealleged fraudulent deed.] The plaintiff would not have beenaffected if the' defendant merely had the deed in question executedand kept it in his possession. The plaintiff was affected only whendefendant claimed the land on the strength of that deed.
No appearance for the respondents.
Cur. adv. vult.
Januarv 15, 1917. De Sampayo J.—
This case raises a difficult and, so far as I know, new point withregard to the jurisdiction of the Court to entertain an action undersection 247 of the Civil Procedure Code. In D. C. Negombo,No. 10,501, the first defendant in this action was ordered to pay toplaintiff certain costs, which were taxed at Rs. 64.49, and inexecution of that order the plaintiff seized some shares of land'situated at Tawalanpitiya and valued at Us. 100. The second de-fendant claimed the said shares of land upon a deed of transfermade by the first defendant in favour of the second defendant, andthe claim was upheld by the District Court of Negombo in theexecution case. The plaintiff then brought this action in the Qpurtof Requests of Negombo against both the defendants to have itdeclared that the deed of transfer was in fraud of creditors, and thatthe property was liable to be seized and sold under the plaintiff’swrit in D. C. Negombo, No. 10,501. The Commissioner has upheld’a plea to the jurisdiction taken by the defendants, and has dismissedthe plaintiff’s action.
It is admitted that Tawalanpitiya, where the lands are situateand the defendants- reside, and where also the deed of transfer wasexecuted, is outside the local limits of the juricdiction of the Courtof Requests of Negombo. It is contended for the plaintiff, however,,that the cause of action arose within those limits. Strictly speaking,this action is not one under section 247 of the Civil Procedure Code,but a Paulian action, with regard to which the cause of action is theexecution of the alleged fraudulent deed, and as that took placeoutside the jurisdiction of the Court of Requests of Negombo, the-
1 (1909) 12 N. L.R. 196.
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1912.
Db SaufatoJ.
Janie Appuv. Baba Appu
objection to the jurisdiction, so far as the Paulian action is concerned,appears to me to be well founded'. Hut the case was argued bothat the trial and in appeal as though the action was purely one undersection 247, consequent upon the order on the claim in execution,and it is therefore necessary to deal with the case on that footing.
What is the cause of action, if any, arising from the seizure ofproperty and the order on & claim in execution? To my mind it ishardly proper in this connection to speak of a cause of action in theordinary sense. It appears to me that an action under section 247does not directly arise from any act of the parties, but is a specialstatutory action provided for the determination of one of twoquestions arising from the order of Court in the claim proceedings,namely, (1) where the claim is. disallowed, whether the claimant hasthe right which he claims to the property in dispute, and (2) wherethe claim is upheld, whether the execution-debtor has, as againstthe claimant,, a saleable interest in the property seized in executionof the decree in the plaintiff’s favour? Both these questions relateto and involve a declaration of title to the property, and I think thatsubject to the other factors which may affect the jurisdiction ofthe Court, the action should be brought in the Court within whoselocal limits the property is situate. Sometimes misleading expres-sions are used in regard to actions under section 247. For instance,the seizure of the claim is often described as being “ wrongful, ’’and the action under section 247 as one brought to “set aside ’’the wrongful seizure or the wrongful claim, as the case may be.This mode of expression, though it may be compendious and con-venient, is not justified by the language of the Code. Take thecase of a claim. If the claim be “ wrongful, ’’ it seems to me that acause of action would accrue to the plaintiff at once to have it so de-clared and the properly sold by means of a common law action. ButIt is certain that the only action available to the plaintiff is thestatutory action under section 247 after the Court has made anorder on the claim. In the case of a seizure complained of by thetrue owner of the property, however, it is possible to conceive of acommon law action being available to him, apart from the provisionsof the Code with regard to claims, inasmuch as the seizure, if it benot a physical disturbance of possession, is at all events a distinctinfringement of the rights of ownership. But if the owner elects toproceed under the Code and make a claim, he, too, is restricted to anaction under section 247 consequent upon the Court’s order on theclaim without reference to the existence of any particular causeof action.
For these reasons I think the judgment appealed against is right.The appeal is dismissed, with costs.
Appeal dismissed.