Aleckman v. K chchikade Town Council 111,- Sdrit. J •
MERCANTILE CREDIT LTD.
COURT OF APPEAL
SOZA, J., AND K.C.E. DE ALWIS, ).
A. NO. 427/81.
M.C. WARIYAPOLA NO. B 242/79.
M.C. COLOMBO NO. 84436 H P.
NOVEMBER 17 AND 18 AND DECEMBER 11. 1981
Civil Procedure – Civil Procedure Code, sections 72, !H7 and 2.12 – Judgment -Execution of decree – Jurisdiction to determine title or priority of claim . AvMagistrate’s Court having custody of property sought to he seized in executionissued by District Court.'■ ! .
Criminal Procedure — Code of Criminal Procedure Act, No. 15 of 1979, sections29 and 431 – Disposal of productions in criminal case.
When there is an admission under Section 72 of the Civil Procedure- Code theCourt is empowered to enter judgment on the basis of the admission withoutcompliance with the requirements of section 187 in regard to what a judgmentshould contain. Even if in the decree there are errors or omissions the decreeis still operative as it stands. If there is any error or omission in the decree theparty concerned should move the Court that entered it and have it corrected.
Sri Lanka Law Reports
11982) 2 SLR.
A Magistrate's Court having custody of property sought to be seized in execution•of a decree entered by a District Court has jurisdiction to determine questions, of title to the property seized or of priority of the claims to it which arisebetween the judgment-creditor and any other person not being the judgment-debtorclaiming such property by virtue of any assignment, attachment or otherwise.•This is so even if the1 custody of-the property seized is in a Magistrate’s Courtwhich has no civil jurisdiction. It is the'duty of the Fiscal to issue notice ofseizure to the custody Court and when he docs he cannot be regarded as actingin derogation of the authority of the Magistrate's Court.
Cases referred to:
Marjan »• Hi,rah (1948) 51 N.L.R. 34. 40. 41
Khotrarnohan Navak v Sri Sinha Kama! Havana Ramanuj Das (1956) A.I.R.Orissa 206
.V Lakurdcen & Co r Suppramaniam Chetty (1907) / A.C.R. 159.APPLICATION in Revisiort-from the order of the Magistrate’s Court of Wariyapola.Chula de Silva for petitionerII. M P. Ilerath for 2nd and 3rd respondents
Cur. adv. vull.
January 20. 19X2SOZA, J.
This is an application for revision of the order made in this caseon 27.2.1981 by the learned Magistrate of Wariyapola. The facts thathave given rise to the present application may be briefly stated as follows: –
The petitioner is the registered owner of Massey Ferguson tractorbearing registration No.25 Sri 9766 – see extract from the Registerof Motor Vehicles marked PI. About the 3rd January 1978 thepetitioner entered to a hire-purchase agreement with the 1st respondentone Somawathie Jayamanne as hirer and her father David Jayamannealong with C. Vahderporten apd L.B. Navinna & Sons Ltd. of Kurune-gala as guarantors. A copy of the agreement is before us marked P2.The 1st respondent fell into arrears of monthly rentals and accordinglythe petitioner terminated the hiring of the tractor by a notice dated13th September 1978 and demanded the return of the vehicle. As aresult of the petitioner trying to get back possession of this vehiclethe Police had occasion to take over the tractor and produce it inthe Magistrate's Court of Wariyapola with a report which wasregistered under No.B/242/79 of that Court. It was however found
Jayasinuhe r. Mercantile Credit Ltd. tSnza. J >
that no offence was disclosed. The question then arose as to thedisposal of the tractor. The sections'of the Code of Criminal ProcedureAct No. 15 of 1979 that became applicable were sections 29 and 431.
Under section 29 the Police were empowered to produce beforethe Court any articles which there was reason to believe were (Heinstruments or the fruits or other evidence of the crime. Once theinvestigations reveal that there was no evidence upon which a chargecould be made out, then the question of the disposal of the articlesarises and the Magistrate could act under Section 43 f of the CodeCriminal Procedure Act. Under this section when there is' a seizureby any Police Officer of property taken under section 29 the Magistratemust make such order as he thinks fit respecting the delivery of theproperty to the person entitled to the possession thereof. If theperson entitled to the possession thereof cannot be ascertained theMagistrate must make an order respecting the custody and productionof such property. If the person entitled to possession ol the propertyis known the Magistrate may order the property to lv delivered tohim on such conditions as he thinks fit to impose. If such person isunknown the Magistrate will take such, steps as arc spelt out insubsections (2) and (3) of section 431.
The case before us was one where the person entitled to thepossession of the property was known or could be ascertained. Theregistered owner of the vehicle, that is. the present petitioner appearedin Court and participated in the proceedings connected with thedisposal of the property. The learned Judge however after holdingthe inquiry contemplated in section 431 directed that the propertyshould be handed over to the person from whose possession it wastaken, namely, the driver of the. tractor who happens to be the 3rdrespondent. It should be observed that the driver of the tractor did.not claim he was entitled to possession of the vehicle. Indeed.hewas not. In my view the. learned Magistrate was in error in directingthe vehicle, to be handed back to the driver because this was not acase where he was entitled to possession,. The best documentaryevidence in regard to entitlement to posscssiqn of the vehicle, namely,the extract from the Register of Motor Vehicles was available to thelearned Magistrate but he seems to have ignored it.
However that may be, the learned Magistrate having made theorder that the tractor be handed back to the present 3rd respondentdirected that his order should not be given effect to until the lapseof the appealable period. In the meantime on 15th October 1980
Sri Lanka Law Reports
t!W2) 2 S L R.
the present petitioner,had filed case No.84426/HP in the DistrictCour^,jqf Colombo against the hirer Miss Jayamanflc who is thepresent, 1st respondent and the three guarantors seeking possessionof th'tj vehicle and the payment of arrears and damages. Summonscould not be served on the 3rd defendant, C.Vanderporten, who wasone,lpf the guarantors. However, the 1st, 2nd and 4th defendantsconsulted to judgment and judgment and decree were entered bythe Jparned District Judge on the basis of the admission of thedefendants. Once decree was entered the plaintiff who is the presentpetitioner moved for execution of decree. As the vehicle was in thecustody of the Magistrate’s Court of Wariyapola the petitioner soughtexecution by seizure under section 232 of the Civil Procedure Code.It is, the order on the preliminary question of jurisdiction made bythe learned Magistrate in the proceedings purported to be held undersection 232 of the Civil Procedure Code that the petitioner seeks tohave Revised in the present proceedings before us.
Ledrned Counsel for the 2nd and 3rd respondents contended thatthere, was really no judgment in the District Court Case No.84426/HP.Even,if there was, it was one obtained by fraud and collusion.
Section 72 of the Civil Procedure Code provides that if the defendantadmits the claim of the plaintiff the court shall give judgment accordingto tHe admission so made. The judgment which the District Judgepurported to enter reads as follows:-.. . ,
“Id'.accordance with the consent motion 1 enter1 judgment.” Thecomplaint that this is nbf a judgment is without substance. No doubtsectjdh 187 of the Civil Procedure Code stipulates that the judgmentshall^pntain a concise statement of thecase, the points for determination,the decision thefeon and the reasons for such decision. When judgmentis entered on the bafsis of an admission, there is neither the neednor (he'occasion for compliance with section 187 of the Civil ProcedureCodbv Section 72 of the Civil Procedure Code directs the judge togive judgment against the defendants according to the admission andtherefore it is not possible, for instance, to set out points fordetermination and the decision'bn them with reasons. The judgmententered by the learned District Judge was in compliance with section72 of, the Civil Procedure Code and is unexceptionable.
Referring to the decree learned Counsel for the 2nd and 3rdrespbhdents submitted that there were certain discrepancies in thatall the terms of the consent motion have not been incorporated inthe decree. What has been incorporated in the decree is the admision
CAJtiytninxhr >' Mcunniilf ('mhl /.<•/ 'Suzti. ! >A*W
so far as it relates to the plaintiff's claim and there is no deviationfrom the requirements of section 72 of the Civil Procedure Code. Ifthere is any error or omission in the decree then the parties concernedshould first move the District Court that entered it to have the errorcorrected or the omission supplied. Until this is done the decreestands and is valid and operative.
Now to the question of fraud "and collusion. No question of fraudor collusion in regard to the obtaining of the decree hi the DistrictCourt was raised before the learned Magistrate. All the facts plgadcdbefore us by the 2nd and 3rd respondents upon wlm h fraud andcollusion are sought to be founded were well known to them evenduring the proceedings held before the Magistrate. We have nofindings before us by the learned Magistrate on fraud and collusion.Hence I would reject the plea of fraud and collusion as an afterthought.
No doubt a party to a suit or other proceedings can show thatany judgment, decree or order sought to be proved against him hasbeen obtained by fraud and collusion. A person like the 2nd or 3rdrespondent who was not a party to the proceedings where a judgment,decree or order was entered can always attack it collaterally whensuch judgment, decree or order is sought to be proved against him- see section 44 of the Evidence Ordinance and the case of Marjartv. Burah (1). But even on the facts the plea of fraud and collusionin the instant case cannot be sustained.
The facts on which the plea of fraud and collusion is being advancedarc:
The 1st respondent admitted the claim of the petitioner veryreadily and speedily.
The petitioner filed the case in the District Court withoutdisclosing the order of the Magistrate in connection withthe custody of the tractor.
The 2nd respondent should have been made a party to theproceedings in the District Court.
The suit No. 84436/HP in the District Court of Colombo was filedon a written contract to which the 1st respondent was a party, Ifshe advised herself that she was bound by the .agreement andaccordingly consented to judgment without loss of time she cannotbe blamed. With no defence to offer in the action she did die nextbest thing by consenting to judgment and so cutting her costs. Thepetitioner got no more than its entitlement on the agreement put insuit. No fact relevant to the suit was suppressed and there was notaint of deception at any stage of the proceedings in the District C ourt.
(m2) 2 S.L.R.
•'***Sri Lanka Law Reports
Learned Counsel for the 2nd and 3rd respondents also contendedthat the 2nd respondent should have been made a party to the actionin the District Court. If the petitioner joined the 2nd respondentthere would have been grave risk of the suit being defeated by aplea of misjoinder. Further it must be remembered that the stepsunder section 232 of the Civil Procedure Code are steps in execution.The provisions of this section do not postulate any assumption thatthe party claiming title or priority against the judgment – creditorshould be a person bound by the decree. Indeed it is because suchclaimant is not bound by the decree that the judge of the custodyCourt is vested with jurisdiction to determine the question of titleto the property sought to be seized and the question of priority ofclaims. Hence the petitioner was quite right in not joining the 2ndrespondent to the proceedings in the District Court.
In the circumstances the plea of fraud and collusion must berejected not only as belated but also groundless and unsupportable.
The 2nd and 3rd respondents have at a very late stage of thehearing tendered a document 2D3 purported to have been signed infavour of the 2nd respondent by L.B. Navinna & Sons Ltd. allegedto be an agent of the petitioner. Apart from the fact that thedocument is inadmissible at this stage, there is the .fact that theproceedings now being taken are in execution. Further the documentitself is signed by a party who was a defendant in the District Courtcase. Even if the document was signed by an agent of the petitionerit passes no title. It creates no assignment of title. In any event itdoes not confer any rights on the 2nd respondent superior to thoseof the petitioner. In the circumstances the only possible conclusionis that the petitioner has indefeasible title to the vehicle.
I will now turn to the question of the jurisdiction of the Magistrate’sCourt to hold the inquiry- into title contemplated by section 232(1)of the Civil Procedure Code. Under the provisions of this sectionthe property must be held by such court^ “subject to the furtherorders of the Court from which the writ of execution authorising theseizure” issued. The proviso provides that where the property isdeposited in or is in the custody of a Court “any question of titleor priority arising between the judgment-creditor and any otherperson, not being the judgment-debtor, claiming to be interested insuch property by virtue of any assignment, attachment, or otherwise,shall be determined by such Court.”
Jayasinghe v. Mercantile Credit Ltd. (Soza. J.)
It will be seen that the proviso contemplates two Courts, one theCourt from which the writ of execution authorizing the seizure issuesand the other the Court having custody of the property sought tobe seized in execution. According to the words of the section it isthe court having custody of the property sought to be seized inexecution that must determine any question of title or priority thatarises between the judgment-creditor and any other person (who isnot the judgment-debtor) who claims to be interested in such propertyby virtue of any assignment, attachment or otherwise.
If the Court that has custody of the property sought to be*seizedis a Magistrate’s Court vested with no civil jurisdiction, can thequestion of title or priority be determined by such Court?
Our Civil Procedure Code originally passed as Ordinance No. 2 of1889 (operative from 1st August 1890) is modelled on the IndianCode of Civil Procedure of 1882 (Act No.XIV of 1882). Our section232 is substantially the same as section 272 of that Indian Code.When the Indian Code was replaced in 1908 by the Indian Code ofCivil Procedure (Act V of 1908) section 272 was reproduced as OrderNo.XXI Rule 52. Order No.XXI Rule 52 bears a striking similarityto section 232(1) of our Civil Procedure as it stands today. In Indiait was held in the case of Khetramohan Navak v Sri Sinha KamalNayarxa Ramanuj Das (2) that the Court vested with jurisdiction todetermine, the question- of title or priority arising between thedecree-holder and any other person not being the judgment-debtoris only a civil court such as is empowered to operate the provisionsof the Indian Civil Procedure Code. But the same interpretation ofthe expression “such court” appearing in the proviso to subsection .(1) of section 232 of our Civil Procedure Code is not warranted bythe definition given to the term “court” and “judge” in section 5of our Code. The word “court” means a Judge empowered by lawto act judicially alone, or a body of Judges empowered by law toact judicially as a body when such Judge or body of Judges is actingjudicially. The word “Judge” means the presiding officer of a courtand includes Judges of the Supreme Court, High Court Judges,District Court Judges and Magistrates. It will be seen that on thebasis of these definitions if the custody court is a Magistrate’s Court,the Magistrate has jurisdiction to determine the question of title orpriority arising between the judgment-creditor and any other personnot the judgment-debtor. In the case of Fakurdeen & Co. v.Suppramcniam Chetty (3) Wood-Renton, J. relying on the definitionsof the words “court” and “judge” as found in section 5 of our Civil
Sri Lanka Law Re'portt
(1982) 2 S L R.
Procedure Code, held that the word “court” as used in the provisoto section 232 extended to Police Courts as the Magistrate's Courtsof today exercising an identical jurisdiction more or less were thencalled. In fact in 1907 when the case under reference was decidedthe word “judge” was defined in our Civil Procedure Code‘ slightlydifferently from now as follows:-
“ ‘Judge’ means the presiding officer of a ._court, and. includesJudges of the Supreme Court, District Judges and Commissionersof Requests.”
Magistrates were not mentioned in the definition but Wood-Renton, J.held that the word ‘includes’ as used in the definition should receivean extensive meaning and therefore Police Magistrates being judgesempowered by law to act judicially alone had jurisdiction to determinethe question of title or priority as provided for in the proviso tosection 232.
Incidentally it may be mentioned here that in the Civil ProcedureCode as it stood when originally enacted section 232 was not dividedinto two subsections as now. Subsections (1) and (2) as they standtoday together formed section 232.
Before I leave this point, 1 should refer to the language of the.long title to our Civil Procedure Code. It reads as follows:-
“An Ordinance to consolidate and amend the Law relating tothe Procedure of the Civil Courts.”
The expression “civil court” is defined in our Civil Procedure Codeas meaning “a court in which civil actions may be brought.” It is awell known canon of interpretation that the long title cannot be usedto modify the clear and express language of a statute. It is part ofthe Act but it can only be looked at as an aid to interpretation toresolve doubt or ambiguity or to ascertain the scope and intent ofthe Act. Wood-Renton, J. did not refer to the long title possiblybecause' the meaning of section 232 was clear and unambiguous whenread with the definitions in section 5 of our Civil Procedure Code.The interpretation of Wood-Renton, J. could be adopted with allthe more confidence today because the word “Judge” as defined inour amended Civil Procedure Code includes Magistrates thus leavingno room for doubt or debate.
The difference in the interpretation of the language of section 232as found in Order XXI Rule 52 of the Indian Code of Civil Procedureis easily explainable. The Code of Civil Procedure of India carrici
CAJayasinghe v. Mercantile Credit l.ul. (Snra. 1.1503
no definition of the word “court”. However when a section of theCode provides that a particular matter shall be dotci mined by aCourt, the judge presiding over such .Court must be deemed to beempowered to exercise that jurisdiction – sec Chitalev Rao: A.l.R.Commentaries on The Code of Civil Procedure (V of I'd is) 7th (1963)Edition Vol.l p.87. The word "Judge", it must be noted, is definedin section 2(8) of the Indian Code as meaning “the piesiding officerof a civil court” (emphasis mine). Therefore in the Indian case ofNayak v. Ramanuj Das (2) the term “court” was right I v interpretedas meaning “civil Court”. On the other hand in view ol the definitionsof the words “Judge” and “court" in our Civil Procedure Code, theinterpretation given in the Indian case cannot be accepted in Sri Lanka.
Therefore in this case the learned Magistrate had jurisdiction toact under the proviso to section (1) of section 232 of the CivilProcedure Code. If he did, he would have had no difficulty in holdingthat the petitioner had title to the vehicle. Indeed the 3rd respondentTillekeratne who was only the driver of the vehicle was not claimingtitle to the vehicle. The claim of his master the 2nd respondent isnebulous. I did not understand it as a claim to title. In his evidencein the early Magistrate's Court proceedings a copy of which has beenproduced before us, the 2nd respondent conceded rhat the petitionerwas the owner of the vehicle and that the vehicle was held on ahire-purchase agreement by the 1st respondent. In tins state of thefacts no question of title or priority must be held to have arisencalling for a determination by the Magistrate under section 232(1)of the Civil Procedure Code. Further it must be remembered thatthe Civil Procedure Code section 233 enjoins on the Fiscal-the dutyof issuing the notice of seizure on the custody court. The form No.47provided in the Civil Procedure Code for this notice also indicatesthat it is the Fiscal who has to issue this notice. In fact all seizuresin execution of a decree are required by the Civil Procedure Codeto be made by the Fiscal on the authority, of course, of the ordersof the Court that entered the decree. The Fiscal was therefore onlyacting in compliance with the statute when he issued the notice ofseizure on the custody court and it is a misconception to regard theact of the Fiscal as an act in derogation of the authority of thecustody Court. I would also like to add that the order of the learnedMagistrate requiring the petitioner to furnish security although thevehicle was not handed over to it seems unjustified.
Sri Lanka Law Reports
<IW2) 2 S.I..R
I must sav that I do appreciate the care which the learned Magistratebestowed on this case but I regret to have to say that the ordershe made both under the Code of Criminal Procedure Act and theCivil Procedure Code are wrong and cannot be allowed to stand.Acting in revision. I set aside the orders of the Magistrate made on13.10.198(1 and 27.2.1981 and make order directing that the tractorbearing No.25 Sri 9766 be forthwith delivered to the petitioner. The2nd and 3rd respondents will pay the petitioner the costs of theproceedings before us and of the proceedings in the Magistrate'sCourt after the Fiscal served notice of seizure, that is. from 5.11.1980.
K.C.E. DE AI/WIS, J. — I agree.
Orders of the Magistrate set aside.
N.B. An application (Sp. L/A 11/82) for special leave to appeal fromthe above judgment to the Supreme Court was refused on .31.1.1982