043-NLR-NLR-V-14-KUDA-BANDA-v.-DINGIRI-AMMA.pdf
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Present: Lascelles, A.C J.
KUDA BANDA v. DINGIRI AMMA.
60—C. R. Kandy, 18,602.
Action under a. 247 of the Civil Procedure Code—Writ-holder not bound byjudgment against debtor in action between debtor and claimant.
In an action under section 247 of the Civil Procedure Code,between an unsuccessful claimant and the writ-holder, the latter isnot concluded by a judgment adverse to the judgment-debtor in alitigation between him (debtor) and the claimant.
rPH£ facts in this case are set out in the order of the learned-A. Commissioner of Requests (R. G. Saunders, Esq.) ;—
The facts in this case are as follows. In C. R. Kandy, 17,587, oneH. Dingiri Amma (the defendant in the case C. R. Kandy, 18,602)instituted an action on a promissory note against Panikki MudianselagePunchi Banda, and obtained judgment on November 18, 1908, inexecution of which decree an undivided half share of the southern twopelas of the land Galalelakumbura was seized. On May 12, 1909, theFiscal of the Central Province forwarded to Court a olaim to the saidland put in by one Nawaratna Mudianselage Kuda Banda (the plaintiffin this case, 18,602), which claim was inquired into on June 24, 1909,and dismissed; whereupon the said Nawaratna Mudianselage KudaBanda instituted this action under section 247 of the Civil ProcedureCode, asking the Court to declare him entitled to the portion seizedunder writ in C. R. 17,587. It is argued on behalf of the plaintiff thathe was one of the four plaintiffs in D. C. Kandy, 10,931, in whichPanikki Mudianselage Punchi Banda, the judgment-debtor in C. R.17,687, was the second defendant. The said Punchi Banda was at thetime of the institution of the District Court case a minor, but it wasargued he was duly represented by a guardian ad litem, GirakuregeUdage Ram Menika, and it is further argued that in D. C. 10,931judgment was entered in favour of the plaintiffs (of which the plaintiffin this case was one) as against the defendants, including Punchi Banda,for certain lands, including the portion seized in C. R. 17,587, thesubject-matter of this case. It is therefore argued on behalf of plaintiffthat the decree in D. C. 10,931 is res judicata, and estops the defendantfrom setting up an antagonistic title in the said Punchi Banda.
The Commissioner then proceeded to discuss other points, andcontinued :—
This brings us to the question whether the decree in D. C. 10,931 did,or did not, entitle the plaintiffs to the entirety of the lands'. A perusalof the record shows that on March 26, 1898, the District Judge, afterrecording evidence and giving reasons for his judgment, gave thefollowing judgment: “ I give plaintiffs judgment for the lands claimed,}5f. X. A 93348 (11/40)
Mar. 16,1911
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Mar. 10,1911 wjt,h Rs. 2*50 nominal damages, and costs against the first and secondKvda Banda defendants.” Now, the second defendant is the said Panikki Mudi-v. Dingiri anselage Pufiohi Banda, and it is therefore clear that by the judgmentAnmia in D. C. 10,931 he was declared not entitled to any nh«re of the lands—a judgment which 1 hold is res judicata, and estops the defendant inthis case from setting up an antagonistic title in the said Punchi Banda.
I accordingly give judgment in favour of plaintiff, and direct that theland seized in C. R. 17,587 be released from seizure.
H. A. Jayewardene, for the defendant, appellant.—A decreeagainst the judgment-debtor in a suit between him and the claimantdoes not estop the defendant in the present action under section 247of the Civil ProcedureCode from establishing the judgment-debtor’stitle. The judgment-debtor is not a privy to the judgment-creditor.The judgment-creditor does not represent the debtor, even thoughhe has to rely on the debtor’s title. Counsel cited Hukum Chand,p. 201, s. 93.
Bartholomeusz, for the plaintiff, respondent.—The judgment-creditor cannot in this suit be allowed to prove that the judgmentin the action between the claimant and the debtor was wrong. Itis not the province of this suit to point out irregularities in theformer suit. Counsel cited Pinhamy v. PeriesJ Abeyaratna v.Suppramaniam Chettyr
Jayewardene, in reply.
Cur. adv. vult.
March 16, 1911. Lascelles A.C.J.—
The only question raised by this appeal is whether, in an actionunder section 247 of the Civil Procedure Code, between an un-successful claimant and the writ-holder, the defendant is concludedby an adverse judgment in a litigation between the claimant andthe execution-debtor. It is. true that an execution-creditor hasgenerally to rely upon his debtor’s title, but, apart from authority,
I should have no difficulty in holding that the execution-creditordoes not represent his debtor so as to constitute the latter a party .to the suit.
But the question is fully covered by authority. In Richards v.Johnston3 the Exchequer Chamber held that a Sheriff who comesto setee the goods of a debtor armed with a writ of execution infavour of a creditor is not bound by estoppels, which might haveprevented the debtor himself from claiming the goods. In Richardsv. Jenkins4y Lord Justice Fry, in a similar case said : “In myopinion the execution-creditor is not a party or a privy to theestoppel, and is not bound by it.”
111 N. L. R. 102 (at p. 103).* 4 H. dk N. 660.
* (1006) 2 Bah 33; 0 N, L, R, 37h4 L, R, 18 Q. B. D, 451,
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The Indian authorities collected in ffukum Chand on res judicataare to the same effect, and are based on the same principles.
The judgment of the Commissioner of Requests must be setaside and the case remitted to him for re-trial on the footing thatthe writ-holder is not barred by the previous litigation.
The appellant is entitled to the costs of the appeal.
Mar. 10,1911
Lasobllbs
A.C.J.
Kuda Bandav. DingiriAmina