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KIRI BANDA v. ASSEN.
D. (7., Kandy, 5,005*Claim to property seized in execution—Action under s. 247 of the CivilProcedure Code—Ex parte order—Right of execution-creditor toopen up investigation.•*'
On a claim by defendant to property seized in execution theDistrict Judge made order that the property be releasedfrom seizure.. Three years after, the execution-creditor had the* same pr operty seized again for the same debt. Defendant repeatedhis claim, and the same was again upheld.
Held, that it was not competent to the execution-creditor tobring an action under section 247 within fourteen days of the orderat the second inquiry, but that such action should have beenbrought within fourteen days of the order at the first inquiry.
Where an inquiry into a claim in execution is held, and ordermade thereon in the absence of the execution-creditor, it is opento him to apply to the Court to vacate such order and re-openthe investigation.
HE facts of the case sufficiently appear in the judgments oftheir Lordships.
Domkorst, for appellant.
Senaviratne, for respondent.
29th October, 1895. Bowser, C.J.—
In this case the plaintiff has brought an action jinder section247 of the Civil Procedure Code to have certain property declaredliable to be sold in execution of a decree in his favour. It appearsthat the property was seized so far back as 1891 for this
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18-same debt, ..and a claim was then made by this defendant, which was
October 29. investigated, and in that investigation an order was made onBonsisbj'C.J. the 3rd April, 1891, releasing the property from seizure. Theplaintiff did nothing upon that, but in 1894, three years afterwards,he seized the property again for the same debt. A claim wasagain made by the defendant, again investigated, and allowed.Within fourteen days from that last order he commenced thisaction. The District Judge has held he ought to have broughthis action within fourteen days of the former order oi the 3rdApril, 1891. There is no suggestion that there was any changeof ownership of the land in the interval, but the plaintiff says .that he did not get notice of the first investigation, and that theorder for the removal of the seizure was made behind his back.The District Judge held that if that were so—which, however, isnot proved—his proper course was to apply "to the Court whichheld the investigation to re-open that investigation. I think thatthe District Judge was right, and that that was the proper coursefor the plaintiff to have taken. Therefore this appeal will bedismissed.
I think so, too. In the second"inquiry it would seem that theDistrict Judge refused to carry out the sale hnd seizure of theproperty because there was a subsisting order of his Court releas-ing the premises from seizure under the plaintiff’s writ forexecution of the same judgment, and there was nothing to showthat circumstances had arisen which could justify the propertyagain being seized in disregard of that judgment. If the priororder was made ex 'parte, the plaintiff’s course was to apply to theCourt to vacate it.
KIRI BANDA v. ASSEN