021-NLR-NLR-V-67-K.-RAMANATHAN-Petitioner-and-L.-H.-PERERA-and-2-others-Respondents.pdf
1963 Present: L. B. de Silva, J., and Sri Skanda Rajah, J.
K. RAMANATHAN, Petitioner, and L. H. PERERA and 2 others,
Respondents
8. G. 7311962—Application for Conditional Leave to Appeal to thePrivy Council in S. C. 45ID . G. Colombo, 760jZl
Privy Council—Conditional leave to appeal—Decree for less than Rs. 5000—Seizureof property worth over Rs. 5,000—Action brought under section 247 of CivilProcedure Code— Valuation of subject matter—Appeals (Privy Council)Ordinance, Schedule, Rule 1 (a).
Where property worth over Ra. 5,000 in value is seized by a judgment-creditorin respect of a judgment debt which is below Rs. 5,000, a claimant-plaint iffin an action brought under the provisions of section 247 of the Civil ProcedureCode is entitled to prefer an appeal to the Privy Council as of right from ajudgment of the Supreme Court dismissing his claim. In such a case, theappeal is governed by the second part of Rule 1 (a) of the Schedule to theAppeals (Privy Council) Ordinance inasmuch as it involves directly or indirectlysome claim or question to or respecting property or some civil right amountingto Rs. 5,000 or upwards.
Application for conditional leave to appeal to the Privy Council.
M. Tiruchelvam, Q.G., with K. Thevarajah, for Plaintiff-Petitioner.
C. Ranganathan, with S. C. Crossette-Thambiah, for Defendants-Respondents.
Cur. adv. vult.
November 26, 1963. L. B. de Silva, J.—
The defendants-respondents seized the right, title and interest of oneRajendra, the judgment debtor in D. C. Colombo Case No. 14719/Sin the property described in the schedule to the plaint in this case, filedof record marked *' B ” in this application. This property is subjectto a Trust created by Last Will No. 147 dated 29th August, 1938, filed ofrecord marked ’c A ”. The said Rajendra is entitled to the beneficialinterest in a 1 /24th share of the said property.
The plaintiff-petitioner who is a trustee under the said last willpreferred a claim to the interests seized, in his capacity as such trustee.His claim was dismissed and he, thereafter, filed thepresent actionunderthe provisions of section 247 of the Civil Procedure Code, for a declarationthat the interests of the judgment-debtor Rajendra in the Trustproperty, were not liable to seizure and sale under the said decree.
The plaintiff-petitioner’s action was dismissed by the learned DistrictJudge and his appeal to this Court was also dismissed. He is nowseeking conditional leave to appeal to Her Majesty the Queen in Council^
The questions for decision in this application are :
(o)whether the subject matter in dispute on this appeal amountsto or is of the value of Rs. 5,000 or upwards or
(6) If this appeal involves directly or indirectly some claim or questionto or respecting property or some civil right amounting to or cfthe value of five thousand rupees or upwards
as provided by Rule 1 (a) in the schedule to the Appeals (Privy Council)Ordinance (Chapter 100 of the Revised Legislative Enactments of Ceylon).
The decree in execution of which the interests of the judgment-debtorwere seized was below Rs. 5,000 in value. The beneficial interests ofthe judgment-debtor extended to a 1 /24th share of the property, describedin the schedule to the plaint. The entirety of this property is reasonablyworth Rs. 243,000 according to the affidavit filed by the petitioner.This valuation has not been challenged by any counter-affidavit in theseproceedings. We are amply justified in holding for the pirpose of thisapplication, that the judgment debtor’s beneficial interests under theTrust in this property, which were seized in execution, were worth overRs. 5,000 in value.
It was submitted on behalf of the respondents that this Court hasheld in two cases reported in 2 Browne’s Reports, p. 82 and 9 New LawReports, p.48 that the value of the subject matter of a 247 action is thevalue of the property seized or the amount of the decree under whichthe seizure took place, whichever is less. These decisions which wewould respectfully follow, will dispose of question (a) referred to earlier.The petitioner will have no right of appeal under the first part ofRule (I) (a) governing appeals to Her Majesty’s Privy Council.
But in our opinion, this appeal clearly involves directly some claimor question to or respecting property or some civil right amountingto Rs. 5,000 or upwards. The question of the liability of the beneficialinterests of the judgment-debtor in the Trust property to seizure inexecution of the decree against him, arises in this appeal to Her Majestyin Council directly or at least indirectly.
For the purpose of this application, it is immaterial whether thepetitioner’s contention that such beneficial interests in the Trust propertyare not liable to seizure, is sound in law or not. The further questionswhether a Trustee is entitled in law to make such a claim on behalf ofthe Trust or for the protection of the Trust property or for the protectionof the interests of the beneficiary under the Instrument of Trust, arealso immaterial at this stage. These are the very matters upon whichthe petitioner is seeking a decision by his appeal to Her Majesty inCouncil, as he is dissatisfied with the decision given by this Court on hisappeal thereto.
Our attention has been drawn by Counsel for the respondents to thecase of L. Sudaman Prasad v. Mohamtd Abdul Alim. In that case,
the petitioner for Conditional Leave to appeal to Hia Majesty in Council’was the seizing creditor whose decree was below Rs. 10,000 in value,though the property seized was over that value. This case cited withapproval the case cited in A. I. R 1934 Rangoon 292, where it was heldthat under section 100, it is the extent to which the decree or Orderhas operated to the prejudice of the applicant that determines whetherthe decree or order is subject to appeal or not.
In the Oudh case, the applicant was only concerned with the recoveryof the amount decreed to him, which was below the appealable value ofRs. 10,000 under the Indian provisions. He had no interest in theValue of the property seized as such. In our view, the position of aclaimant to property seized in execution is quite different. He is primarilyconcerned in protecting the property which he claims, from such seizureand sale under the seizing creditor’s decree. The prejudice to him inthe 247 action or in appeal is the liability of the property which heclaims, to seizure and sale.
If such property is worth over Rs. 5,000, he is entitled to appeal asof right under the 2nd part of Rule 1 (a). In view of this finding, it isnot necessary to consider if the petitioner should be granted leave toappeal under the provisions of Rule 1 (B) of the Privy Council Appellaterules, though this matter was argued before us.
The application for conditional leave to appeal to Her Majesty inCouncil is allowed on the usual terms. The petitioner is entitled to thecosts of this application.
Sri Skanda Rajah, J.—I agree.
Application allowed.