( 410 )
*980Present: Dalton J.
KARONISA v. SINGHO164— C. R. Kegalla, 2,744.
Claim-inquiry-—Duty of Court to notice parties—Power to vacate order ofdismissal—Civil Procedure Code, s. 823.
When a claim is reported to Court by the Fiscal, it is the dutyof the Court to fix a day for inquiry and give notice to the parties.
A Court has no inherent power to vacate an order dismissing aclaim on account of the absence of the claimant on the day fixedfor inquiry.
PPEAL from an order of the Commissioner of Requests,Kegalla.
Weeraeooria, for appellant.
Abeyesehera, for respondent.
February 24, 1930. Dalton J.—
This is an appeal from an order of the Commissioner of Requests,who vacated an earlier order of his Court, whereby the claim of aclaimant under section 241 of th§ Civil Procedure Code had beendismissed.
The facts are shortly as follows:The judgment-creditor (present
appellant) issued writ, and on February 14, 1929, seized certainproperty as belonging to his judgment-debtor. On February 18a claim was made to it by the present respondent, his claim beingmade to the Fiscal in the usual way. The Fiscal reported thisclaim to the Court in the usual '.ray on February 21. On receiving.this report, the Commissioner on February 22 made an order in thefollowing terms: —
Claimant to notice J. C. (judgment-creditor) for inquiry for 4/4(April 4).
No parties were present on February 22, when that order wasmade, and the order does not state how the claimant is to have it■ brought to his notice. *■,
On April 4 the journal entry shows that notice on the judgment-creditor had not yet issued and the claimant was not present. Thejudgment-creditor’s proctor, however, it appears, wa*s present inCourt presumably in connection with some other matter, as nonotice had been given of this claim, and he moved that the claim bedismissed^with costs. This was done.
On May 4 the claimant (respondent) moved to have his claimreopened and that he be given time to serve notice on .the judgment-'creditor. In support of his application he filed an affidavit statingthat he was ignorant of the order of the Court of February 22, andwas waiting for a notice from the Court in respect of his claim. He
( 411 )
does not state how or when he became aware of the order dis-missing his claim, but I do not. think he has been guilty of any lachesin presenting this application of May 4.
The Commissioner on May 8 allowed notice of the motion to beserved on the judgment-creditor, stayed the sale, and on July 9,after hearing the parties, set aside the order of April 4, and directedthat an investigation be held on the claim.
The judgment-creditor appeals from that order. It is concededthat there has been no investigation of claimant’s claim, but it isurged that the Commissioner had no power to set aside theorder of April 4, and if he had, he should not have done so, as itwas claimant’s duty to ascertain the date fixed for the claiminquiry.
The Commissioner does not state under what powers he setsaside the order of April 4. That order, it might be stated, was hotmade by him but by his predecessor in office, although this fact, is not,in my opinion, material to the question under consideration. Afterconsidering the facts, as he said it was not a matter inter partes, asthere was no investigation, and as claimant had no notice of the datefixed for the inquiry, he set aside the order, apparently as he thoughtit unjust to claimant that the order should stand.
In supporting this order Counsel for respondent has sought' toapply the provisions of section 828 of the Code, arguing that theword “ action ” there includes a claim made under section 241. Heurges that such a claim comes within the term “ action ” as definedin section 5 of the Code, that definition being wider than thedefinition given in section 6. It is' true his claim is made to the-Fiscal, but it is referred by the Fiscal to the Court, and is in fact aclaim to the Court.
It is clear .that no reference was made to this section 823 in thelower Court, nor has the Commissioner acted under it. Further,the remedy that can be granted to a claimant, if he can be said tocome within the term “plaintiff, ” is the right to institute a freshaction, and not to reopen the old action. In the absence of anyauthority to support counsel’s argument, I am unable to holdthat a claim such as this comes within the purview of section 823.I am also of opinion that the Commissioner, if he was exercising anyinherent power of the Court to make an order that seemed to himnecessary for the ends of justice, was wrong here in setting asidethe order of dismissal. The claimant has his remedy to apply inrevision to this Court. ,
I am not satisfied, therefore, that the Commissioner had anypower to make the order he has made. In the event of my comingto that conclusion I am asked by respondent to affirm the orderof the Commissioner by exercising my powers in revision. The
( 412 )
procedure followed in Velaithapillai v. Sangarapillai1 referred tobelow, it is to be noted, was by applying to this Court in revisionand not as was done in this case.
In that event the question to be decided is whether it was theduty of the claimant to ascertain for himself the existence andnature of the order of the Court of February 22, or whether it wasthe duty of the Court to notify the claimant that it had fixed theclaim-inquiry for a certain day and that he was to notify thejudgment-creditor thereof.
Upon this question there is authority both ways.
Under section 241 the claimant has to make his claim to theFiscal, whose duty it is to report the claim to .the Court. It is thenfor the Court to proceed to investigate the claim in a summarymanner. In Karuppen Chetty v. Anthonayake Hamine2 Bonser C.J.discussing the words “ in a summary manner ” points out that thereis no duty thrown upon the claimant to set the Court in motion, .since it is the Fiscal’s duty to report the claim to the Court. Heconcluded that it was the duty of the Court to notify both claimantand judgment-creditor that the inquiry was going to be held, thenotice giving the date of inquiry and requiring the person notifiedto attend with his witnesses. With that conclusion Wendt J.agreed. In Velaithapillai v. Sangarapillai (supra) Grenier andWood Renton JJ. declined to follow this conclusion, holding it wasnot the duty of the Court to issue notices to parties, but that theclaimant should make himself acquainted with the date of theinquiry and take the initiative in procuring the attendance of hiswitnesses to support his claim.
In the latter case the learned Judges found that the claimant hadbeen guilty of gross laches in bringing his application for revision tothe Court, hence there was ample ground for dismissing his applica-tion without considering the further question as to where the dutyof the Court under section 241 began and where it ended. It ispossible therefore to regard the opinion of the learned Judges asobiter, just as they regarded the opinion of Bonser C.J. The opinion,however, of Grenier J. as to the practice that obtained in his day inthe District Court, Colombo, cannot but have great weight. Unfor-tunately, as I have found out in other matters, the practice inmatters of procedure in different District Courts varies veryconsiderably, whilst I have even known a District Judge, transferredfrom one Court- to another, to carry his practice on some pointswith him.
I am unable to find in section 241 anything with requires theclaimant to find out for himself what, order the Court has made uponthe Fiscal’s report of the claim. The learned Commissioner fromwhom this appeal comes, who is also a District Judge, points out1 3 Bal. 292.2 5 N.L.R. 300.
( 413 )
that this would mean the claimant possibly having to spend severaldays about the Fiscal’s Office and the Court to ascertain whatorder has been made by the Court. It seems to me it is for theCourt to notify him of the date fixed for inquiry. I do not see thatthereby I am in any way making the law and not declaring it as hasbeen suggested in Velaithapillai v. Sangarapillai (supra) referred toabove.
No question of laches on the part of the appellant arises here.
Whilst upholding the appeal that the Commissioner had nopower to set aside the previous order made, the appellant havinghis remedy in revision, I think this such a case as should be dealtwith in revision, the appellant through no fault of his own havinghad his claim dismissed without any investigation.
The appeal is allowed, but the order of April 4 dismissing theclaim is set aside on revision, and the inquiry will proceed. I makeno order as to the costs of proceedings in this Court.