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KAllUPPAN v. USSANAE.D, G., Anura.dhapv.rfL, 119.
Sequestration of goods under s. 653 of the Civil Procedure Code—Claim toproperty sequestered—Disallowance of claim under s. 6 59—Action fordissolution of sequestration—Plea of res judicata.
Per Lawrie, A.C.J., and Withers, J. (dissentiente Browne, A.J.).—The disallowance of a claim; to property sequestered under section653 of the Civil Procedure Code is no bar to the claimant institutingan action under section 247 to establish his right to the property seized.
N this case, which was instituted on the 17th April, 1893, theplaintiff alleged that one Wattuhamy and Simon had sold him
certain goods; that when he was in possession of them thedefendant had them seized as the property of the plaintiff’svendors; that he claimed them on the loth March, 1893; and thathis claim was disallowed on the 6th April. He now prayed for adissolution of the sequestration and for delivery of posession,and in case of failure to deliver for the value thereof anddamages.
The defendant admitted the seizure and impugned the allegedsale by his execution-debtors to the plaintiff; and he pleaded tfrat asthe plaintiff had made his claim under section 658 of the CivilProcedure Code and it was disallowed, such order was res judicataand the present action could not be maintained; that, if the presentaction was conceived under section 247, it was not institutedwithin fourteen days from the date of the order disallowing theclaim.
The District Judge ruled as follows: —
“ Plaintiff has proceeded under sections 658 and 659, and hasthe rights conferred by section 247 in regard to order made undersections 245 , 246.
“ The action taken on 17th April, 1893, is sufficiently disclosedto be under section 247. ”
On the merits, after ..taring evidence, the District Judgebelieved that plaintiff was the owner by virtue of a purchaseaccompanied by possession, ostensible and effectual, and that theaction was brought within fourteen days of the date of the orderdisallowing his claim. He entered judgment for !he plaintiff.Defendant appealed.
Dornhorst (with him Walter Pereira), for appellant.
Wendt (with ' hn Senathi Raja), for respondent.
Cur. adv. vult.
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5th February, 1895. Lawrie, A.C.J.—
In an action on a promissory note the plaintiff succeeded in gettingcertain movable property sequestrated under the 653rd section ofthe Code. A claimant appeared and preferred a claim to theproperty sequestered; the claim was investigated in the mannerprovided for tho investigation of claims to property seized inexecution of a decree for money. The Court disallowed the claim.
The claimant did not appeal. Within fourteen days of the disal-lowance of the claim, the claimant brought the present action, inwhich he prayed that the sequestration be dissolved; that theproperty be ordered to be delivered to him; for its value on failureto deliver ancf for damages. The learned District Judge, on theevidence, found that the property belonged to the plaintiff, and hehas given judgment for the amount which the property fetched atthe sale in execution in the promissory note action.
I am of the opinion that the plaintiff could have appealed againstthe disallowance of his claim in the other action; but, as there is noprovision that the order disallowing such a 'claim is final, I am ofopinion that it does not determine the question of the right ofproperty; it does no more than reject a claim on the materials thenbefore the Court. It certainly settles these points: (1) that thegoods were rightly sequestered,, (2) that they may be sold in execu-tion "if judgment goes for the plaintiff; but the disallowance of aclaim does not profess to adjudge the property to be in one or inanother, and I am not disposed to give it a larger meaning than itsown terms bear.
This proceeding, under chapter 47, is not regulated by theprovisions of the 247th section. If the claimant has a right to suefor his property wrongly sequestered, he is not trammelled by thenecessity to bring his action within fourteen days. The presentaction was, in fact, brought within that time, but that seems to meof no consequence.
On the merits, it is I think proved that the defendants in theother action, Wattuhami and another, traded in Anuradhapura,and in March, 1893, they were in pecuniary difficulties. Theyexecuted a notarial deed of sale of the stock in trade in their shopin favour of the present plaintiff on the 11th March, 1893. Imme-diately on hearing of the deed of sale the holders of a promissorynote brought action, and founding on the alienation of the shopgoods as proving a fraud, he obtained a sequestration of the samestock in trade. The question is, Was the holder of the note intime ? Was thq property still vested in the common debtors, or hadit legally passed from them to the present plaintiffs ?
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In my opinion there is no proof of fraud by any one concerned.It was a race for payment; there may have been other creditorsof Wattuhami and his partner: these are not before us. Therewere two creditors whom we know of: the one, the presentplaintiff, insisted on his debtors selling to him and giving himcredit for the debt due to him; he says (and the District Judgebelieves him) that he paid a part of the price, and that he got instantdelivery of the goods—not that they were removed, but that he puta man of his into the shop; on the other hand, the other creditorsays that he was just in time, that the deed of sale had not beenregistered (that is so), that possession had not yet been delivered,that the story of a payment of the price is most improbable.There was certainly very little time between the execution of thedeed and the sequestration; it is not easy to take complete posses-sion on the very day of a purchase; it was not easy, perhaps, for thevendors to find another place to live in; and the fact that one ofthe vendors was seen at the shop on the day of the sequestration(two days after the alleged sale) does not satisfy me that he wasstill in possession. I am disposed to affirm the learned judge’sverdict on the evidence. I recommend that the judgment beaffirmed. The property thus goes to the creditor who was first inthe field.
After giving my best consideration of this matter I am inclinedto concur with the judgment of the Acting Chief Justice. Thoughthe judge may not sustain the sequestration against the claim of onewho is no party to this action, unless he is satisfied that what hasbeen sequestrated is not the property of the claimant, I do notthink that his decision settles the question of title once and for all.
Clause 660 especially conserves the rights of third parties beforesequestrations, and this being so, why should not a third party beallowed to establish his title by an action instituted for thatpurpose? Of course he cannot recover in that action any damagesor costs given against him in the claim inquiry.
On the merits I also agree with the Chief Justice.
I confess I do not regret that the construction of the sections ofchapter 47, Civil Procedure Code, under consideration, has beenoverruled by the rest of the Court, so that title to property willstill have to be decided in a proper action therefor. If I still holdand express those views, it is chiefly for the purpose of showing
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1895. that they have been raised and discussed so that the procedureFebruary 6. may be more affirmatively settled.
Bhowne, 3. On the question of procedure, whether a claimant can, afer trialand disallowance of his claim under section 053, institute an actionto assert and have decided in ordinary procedure his right to theproperty he claimed, I would hold it is not permissible for himto do so.
I admit there is much reason why that right should be given tohim. When the Indian Civil Procedure Code, section 487 (oursection 658) required that a claim on sequestration should beinvestigated in the same manner as a claim to property attached inexecution, it was not directing an investigation in a summarymanner “ or limiting at all any right of action thereafter, moreespecially in that such action should be instituted within fourteendays.”
But, when our Civil Procedure Code, section 658, gives a likedirection, that refers one back to sections 241 and 247, we find theformer contains the provision of an investigation in a summarymanner, which is not in the Indian section 278, and the latter, thelimitation of fourteen days’ time, which is not in the Indian section283, and thus a question of title to property might fall to be decidedwithout pleadings in a manner which possibly might work aninjustice.
As against this,, however, it must be noted that the Indian CivilProcedure Code contains no such provision as section 659 in ourCode, and it, read in conjunction with section 207, to my mind,decides that the decree, which disallows with costs and damages aclaim on sequestration, shall be final unless reversed by appeal.
Nor need this always work hardship, for, in the first place, noclaimant is obliged to try his title by the process of mere claim.On sequestration made of his property he may at once sue, and, ifnecessary, have the further proceeding enjoined till decision ofhis claim. While, if he only claims, it will be always in thepower of the Court, and of the claimant and sequestrator, to havewithout any pleading save the statement of claim issues stated todevelop full adjudication upon the questions of title necessary tobe raised.
I would further hold that, even if action after disallowance ofclaim were permissible, the plaint as at first filed here wasdefective for want of averment of the claim and disallowancethereof (per Withers, J., 3 G. L. R. 242; 2 S. C. R. 119); and as theamendment, though allowed on the 19th April, was not made tillthe 20th July, no action was properly instituted within the fourteendays. The amendments to the answer thereon allowed have never,
in fact, been made, and it is to bo regretted that the record lias beenso compiled that neither the order of the 19th April is to be foundin the journal, nor the amendments to the answer are, and in anyclose proximity to it, but one has to search the motion papers todiscover them.
As I desired to sustain the 1st and 4th grounds mentioned indefendant’s amended answer and dismiss plaintiff’s action, I donot deem it necessary to discuss the other questions.
February 5.Browne, ,T.
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KABUPPAN V. USSANAR