025-NLR-NLR-V-11-LETCHIMANEN-CHETTY-v.-MUTTUSAMY-PILLAI.pdf
( 83 )
Present.: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Middleton..
LETCHIMANEN CHETTY v. MUTTI’SAMY PILLAI.
D. C., Colombo, 25,257.
Seizure by Fiscal—Property already in his custody under another «crit—What amounts to seizure under another writ—Action under s. 247,Civil Procedure Code—Purchase pending seizure—Invalidity—Civil Procedure. Code, ss. 236, 241, 247, 657. 659, 660, 661.
Where at the instance of the plaintiff in a case the . Fiscal hadtaken into his custody certain movable property on a mandate ofsequestration issued against the property of the defendant in thecase, and,where pending such sequestration, another judgment-
creditor of the same defendant placed in the hands of the Fiscal awrit against the said defendant’s property with a request to seize■the sequestered goods,—
Held, that the placing of the writ of execution in the hands ofthe Fiscal ipso facto amounted, in the circumstances, to a validseizure ofthegoods, and asale of thegoods afterthat by the
judgment-debtor was void as against such seizure, under section236 of the Civil Procedure Code.'
Jones v.Atherton,1 Johnsonv. Evans,2Hutchinsonv. Johnston,3
Murgatroydv.Wright,4 and Narayan Chettyt. Ellis 5followed.
T
HIS was anaction undersection 247of the Civil Procedure
Code by the unsuccessful claimant to certain movable pro-
perty seized under writ in D. C., Colombo, 24,798 C. The facts
1 7 Taunton 56.3 7 Term Reports 729.
7 M. .f O. 240-47.4 {1907) 2 K. B. 333.
1 4 N. L. R. 367.
1908.March 17.
( 84 )
1908. which gave rise to the claim and the proceedings thereunder areMarch 17. aet ouj jn following order of the District Judge (P. E. Pieris, Esq.)adjudicating on the claim (July 15, 1907): —
“On March 18, 1907, certain shop goods valued at Rs. 1,628.67,and which formed the subject-matter of the present claim, wereseized on a mandate of sequestration issued in D. C., Colombo,24,694 C, and were removed and kept fov safe custody in the officeof the Deputy Fiscal of Kalutara. Shortly after the present writ-holder obtained a judgment in D. C., Colombo, 24,798 C, against thevery party against whom the mandate had issued in the previouscase, and on April 17, 1907, he took out writ of execution. This hedelivered to the Deputy Fiscal of Kalutara on May 3, 1907, with aletter from his proctor, pointing out these very goods at the time inthe Deputy Fiscal’s office for seizure. On May 6, 1907, the writwas forwarded to the Fiscal’s officer of the division where thejudgment-debtor resides, and payment was demanded; on May 15the officer reported that no payment was made, and that hehad seized some immovable property belonging to the judgment-debtor. Regarding that seizure, the Fiscal’s officer has stated inthe box as follows:—‘ A Chetty pointed out the lands on behalfof plaintiff. I do not know that Chetty’s name,; he said he cameon behalf of plaintiff. ’
“Cross-examined.—‘ I questioned Abdul Raheman at the timeof the seizure. He admitted some shares of the lands were his. Iseized accordingly.
“ The value of the immovables seized was estimated at Rs. 2,650;the writ was for Rs. 3,546, to which has to be added interest andcosts. The Fiscal has thus strictly carried out the provisions ofsection 226 of the Code; the demand for payment was notcomplied with; the judgment-debtor was given the opportunityof pointing out property, at the least he acquiesced in the seizureof certain properties which were pointed out on behalf of theplaintiff; that property fell considerably short in value of theamount of the claim; under section 226, therefore, the writ-holderhad the right to point out any further property of the judg-ment-debtors; this he had already done by his proctor’s letteron May 3; that letter was in the Deputy Fiscal’s file, and wasa standing instruction to the Fiscal, and as such . came intooperation as soon as the writ-holder had the legal rightto point out property, i.e., as soon as the judgment-debtorhad failed to avail himself of his opportunity by pointingout sufficient property to satisfy the writ. Accordingly, I am ofopinion that on May 15, when the report of his officer reached theDeputy Fiscal, this proctor’s letter seemed to point out these shopgoods for seizure. These goods were already in the custody of theFiscal; the fact that they were so on a mandate of sequestration
( 85 )
would not appear to me to affect the case, the Fiscal being in actualphysical possession of the goods at the time, when by operation oflaw the proctor’s letter became effective to point out property, andthe letter having pointed out this particular property, I am ofopinion that no further ceremonial was necessary on the part of theFiscal, and that his possession was sufficient seizure on the judgment-creditor’s writ. That being my opinion, the present claimant, whobases his title on a transfer of June 6, 1907, had no interest in thesubject-matter of the claim at the date of seizure. His claim isaccordingly dismissed with Rs. 100 costs.
The claimant then instituted this aotion under section 247 of theCivil Procedure Code, claiming a declaration that the said goodswere not liable to seizure and sale, and praying that the same maybe released from seizure. The Additional District Judge (H. A.Loos, Esq.) gave judgment for the plaintiff as prayed. He heldas follows (December 9, 1907):—
" The plaintiff in this case was the claimant in respect of certaingoods which had been seized under a writ of execution issued by the-defendant against one Abdul Raheman in case No. 24,798 C of theDistrict Court of Colombo. His claim was inquired into in theDistrict Court, Kalutara, and was dismissed. He now brings thisaction to have it declared that the goods in question belonged tohim, and that they be released from seizure under the defendant'swrit. . The facts which had led up to the institution of this actionare briefly as follows: —
“ The plaintiff sold the goods now in question to Abdul Rahemanon credit, and subsequently instituted the action No. 24,694 Cagainst him in the District Court of Colombo to recover their value,and at the same time obtained a mandate to the Fiscal to sequesterthe goods now in question, which were accordingly sequestered bythe Deputy Fiscal oi Kalutara and kept in his custody in his office,on March 18, 1907. Soon after their sequestration one Omer Lebbeclaimed the goods, and the Deputy Fiscal reported the claim to theDistrict Court of Kalutara. That Court held an inquiry into OmerLebbe’s claim and dismissed it early in May, whereupon OmerLebbe appealed to the Supreme Court against the order of thedecision. While the appeal was pending, the plaintiff, AbdulRaheman, and Omer Lebbe appear to have come to an arrange-ment, whereby Omer Lebbe was to withdraw his appeal, plaintiffwas to consent to the dismissal of his action No. 24,694 C, andAbdul Rabeman and Omer Lebbe were to execute a deed trans-ferring the goods which were under sequestration to the plaintiff.In accordance with that arrangement Abdul Raheman and OmerLebbe on June 6, 1907, executed deed No. 6,645 transferring thegoods to the plaintiff. Now Abdul Raheman was also indebtedto the defendant at this time, and the defendant having instituted'10-
1908.
March IT
( 86 )
1808. the action No. 24,798 C in the District Court of Colombo against himMarch 17. and having obtained judgment against him, obtained a writ of execu-tion and placed it in the hands of the Deputy Fiscal of Kalutaraon May 3. That writ (D 1) ordered the Deputy Fiscal to levyand make of the houses, lands, goods, debts, and credits of AbdulBaheman by seizure and, if necessary, by sale thereof, the sum ofRs. 3,546.50. On April 17, 1907, the defendant’s proctor wrote aletter (D 2) to the Deputy Fiscal requesting him to seize the goodswhich had been sequestered under plaintiff's action No. 24,694 C.The Deputy Fiscal followed the procedure laid down by section 226of the Civil Procedure Code and sent an officer to demand paymentof the amount due under defendant’s writ from Abdul Baheman,and on his declaring his inability to pay, and failing to surrenderor point out- any property -for seizure, the Fiscal’s officer, on May11, 1907, seized certain lands belonging to Abdul Baheman, on oneof which Abdul Baheman was residing, and which had been pointedout to him for seizure by a man who represented himself to be anagent of the defendant. The lands so seized were valued by theFiscal’s officer at Rs. 2,650; the goods in question in the presentaction are valued at Rs. 1,628.67. Apparently the Deputy Fiscalmade his return to the writ to the Court stating that he had seizedthe lands; and on May 16, 1907, defendant's proctor wrote a letter(D 4) to the Deputy Fiscal, Kalutara, stating that he had notauthorized the seizure of the lands, requesting him to release theseizure, which the Deputy Fiscal accordingly did. On June 7,1907, the defendant’s proctor wrote a letter (P 3) to the DeputyFiscal inquiring what steps he had taken in respect of the seizure ofthe goods now in question, and on the same date defendant himselfwrote a letter (P 1) and despatched a telegram (P 2) to the DeputyFiscal requesting him to seize under writ in ease No. 24,798 G thegoods which had been sequestered under case No. 24,694 C, if hebad not already done so. The Deputy Fiscal states that he there-upon seized the goods under the defendant’s writ in case No; 24,798 C.the goods being then in his custody, and the plaintiff claimed thegoods. His claim having been dismissed, he instituted this action.
“ Several issues were agreed upon, but the principal issue was asto the date on which the goods in question can be considered tohave been seized under defendant’s writ in case No. 24,798 C. It wascontended on behalf of defendant, on the authority of certainEnglish cases (Jones v. ■ Atherton,1 Drew v. Lainson,2 Johnson v.Evans 3), that the seizure under defendant’s writ must be con-sidered as having been made on the date on which the writ cameinto the hands of the Deputy Fiscal, viz., May 3, 1907, for it wasargued, the goods being at that date in the custody of the Deputy
2 11 Adolphus ct Ellis 529.
7 U. G. 840.
1 7 Taunton 56.
( 87 )
Fiscal under sequestration under the mandate issued in case No.24,694 C, they became by process of law seized under defendant’swrit as soon as it came into the hands of the Deputy Fiscal, it notbeing necessary for the Deputy Fiscal to seize again what he had'already seized and had in his custody. That argument is basedon the assumption that a sequestration before judgment under a:mandate is tantamount to a seizure under a writ of execution.Now it appears to me that the sequestering of the defendant’sgoods before judgment is not tantamount to a seizure of goodsunder a writ of execution, for in the former case all that happens is-that the goods are temporarily taken into custody to prevent theirbeing disposed of by the owner pending the decision of the actioninstituted against him, and in the event of the action failing the-'goods revert to their owner. The sequestration can only be con-sidered as a seizure similar to that under a writ of execution, afterthe plaintiff has obtained judgment; whereas in the latter case theseizure is with a view to the sale of the goods immediately and notdependent on the happening of any further event.
“ Section 661 of the Civil Procedure Code specially provides thatwhere property is under sequestration, and a decree- is given infavour of the plaintiff, it shall not be necessary to again seize theproperty as preliminary to its sale or delivery in execution of suchdecree. Had it been the case that a sequestration was the samething as a seizure under a writ of execution, it would have beenquite unnecessary to enact the provisions of section 661.
“ Being then of opinion that a mandate of sequestration cannotbe considered as creating a seizure for the purposes of a writ of'execution, I hold that the English cases cited do not apply to thepresent case, for there was no seizure of the goods at the time thatthe defendant’s writ came into the hands of the Deputy Fiscal,sind therefore it was necessary that the Deputy Fiscal should seizethem under that writ before they could become liable for execution.under it; and I hold that they were not so seized until June 7, 1907,one day after they had been transferred to plaintiff by deed No. 6,645dated June 6, 1907. So much for the first issue.
“ On the second issue, I am not satisfied that plaintiff had noticeof the writ in case No. 24,798 C being in the hands of the DeputyFiscal on June 6. The defendant states that he informed theplaintiff that he (defendant) had a writ against Abdul Raheman,but- he says that he did not inform the plaintiff that he had handedthe writ to the Deputy Fiscal, so that even if it be true that heinformed plaintiff, which 1 am inclined to doubt, that he had awrit, the plaintiff is not fixed with notice of its being in the handsof the Deputy Fiscal. The defendant was a very unsatisfactorywitness.
“ Having decided the first and second issues in the plaintiff’s'favour, it is unnecessary to decide the third and fourth issues.
1908.
March 17~
( 88 )
1908.“ The fifth issue—viz., whether the plaintiff is entitled to damages,
March It. an(j if E0| f0 wfiat damages—was not pressed, and no evidence wasadduced as to any damages having been sustained by plaintiff.
“ At the trial a sixth issue was suggested by Mr. Bawa, whoappeared for defendant, viz., whether plaintiff bought the goodsbona fide and for valuable consideration. There is nothing in theevidence to establish the contrary, and so far as I can see thepurchase by plaintiff was made bone fide and for valuable consider-ation. It is true that plaintiff made no payment for the goods atthe time they were transferred to him, but the consideration forthe transfer was the extinction of Abdul Babeman’s debt by theplaintiff’s withdrawal of the action No. 24,694 C, which was thenpending against him.
“ It was also urged for the defendant that under-section 25 of ‘ TheSale of Goods Ordinance, 1896,’ as soon as the writ of executionin No. 24,79fiP4C was delivered-to the Deputy Fiscal, i.e., on May-3,the goods in question became bound for execution under that writ,and that the proviso to that section, which enacts that no such writshall prejudice the title to such goods acquired by any person ingood faith and for valuable consideration, did not apply in thisinstance, for plaintiff had at the date of the transfer to him—June 6,1907—notice that the defendant’s writ had been delivered to andremained unexecuted in the hands of the Fiscal!
“ As I have pointed out above, I am not satisfied that plaintiffhad such notice, and I am satisfied that plaintiff acquired title tothe goods in good faith and ,for valuable consideration. Let judg-ment be entered declaring the plaintiff owner of the said goods inthe schedule A annexed to the plaint, and releasing them fromseizure under the defendant’s writ in case No. 24,798 C, withcosts.”
The defendant appealed.
Bawa (with him Van Langenberg and H. A. Jayewardene), for thedefendant, appellant.
Sampayo, K.C. (with him F. M. de Saram), for the plaintiff,respondent.
Cur. adv. vult.
March 17, 1908. Middleton J.—
This was an action under section 247 of the Civil Procedure Code.The defendant was an execution-creditor of one Abdul Kalieman inaction No. 24,798 C, D. C., Colombo. The plaintiff brought actionNo. 24,694 C, D. C., Colombo, against the same defendant, andobtained a mandate of sequestration of the goods in question onMarch 18, 1907. The defendant’s judgment was dated April 16,1907, and on the 17th writ issued, and was put in the Fiscal’s hands
( 89 )
the next day; the fiscal at any rate admits that he got the writ at 1908.least as early as May 3. With the writ the defendant’s proctor Mare^17•sent a letter to the Fiscal requesting him to seize the sequestered Mxddektokproperty. The Fiscal, however, purported to seize certain J-immovable property belonging to Abdul Baheman, and reportedthe seizure to defendant’s proctor. On May 16 the defendant’sproctor wrote to the Fiscal to the effect that the seizure ofimmovables was unauthorized, and again requested the Fiscal toseize the sequestered property. On June 7 the Fiscal by a certainovert act purported to seize the sequestered property, which as amatter of fact was already in his custody under seizure by virtue ofthe sequestration mandate at the suit of the plaintiff in action .
No. 24,694 0.
On June 6 an arrangement was come .to between the plaintiff,
Abdul Baheman, and one Omer Lebbe, another alleged creditor ofAbdul Eameman, who had also claimed the goods, and whose claimhad been rejected on appeal by the Supreme Court on May 3, 1907,whereby the plaintiff purported by notarially executed instrumentto purchase the goods in question in consideration of the sum dueand owing, to him by Abdul Baheman for their original pin-chasefrom him by the latter.
The Fiscal was prepared to sell the goods in question under hisseizure of June 7 on behalf of the defendant.
The plaintiff, however, filed a claim under section 241, whichwas inquired into by the District Judge of Kalutara and dismissed,whereupon he instituted this action in the District Court of Colomboand obtained the judgment now appealedagainst by the
defendant.
The first point raised by the appellant was that as soon as hiswrit reached the hands of the Fiscal it thereby bound all the goodsof Abdul Baheman in the possession of the Fiscal, and that there-fore. at least on May 3, the goods in question being in fact seizedby the Fiscal under the sequestration mandate at the suit of theplaintiff were in effect seized under the defendant’s writ withoutfurther action on the part of the Fiscal.
Counsel for the appellant cited Narayan Chetty v. Ellis; 1Murgatroyd v. Wright;2 vol. 97, 108, Law Times Reports;
Johnson v. Evans;3 Jones v. Atherton; 4 Hutchinson v. Johnston; 52 Bombay High Court Reports 147, 151 and 165; 26 Calcutta 531,with a view to support his argument that once the writ was inthe hands of the Fiscal no further action was necessary under thecircumstances to constitute a valid seizure, which occurred ipsofacto from the- deposit of the writ with the Fiscal. Upon this
4 .V. L. R. 367.* 7 M. d G. 240-47.
(1907) 2 K. B. 333.*7 Taunton 56.
s 7 Term Reports 729.
( 90 )
1908.
March 17.
HtflDD&EKOtt
J.
footing the appellant’s counsel claimed that his client was entitledtp concurrence with the plaintiff in the proceeds of the sale of thesequestrated goods.
It was practically admitted by counsel for the respondent thatif a writ in Ceylon was of the same nature as a writ of fieri facias,and if English Law applied to it on such points; as our Code ofProcedure was silent, that the goods in question would becomebound in the hands of the Fiscal immediately on the receipt by himof the defendant’s writ, in accordance with the principle underlyingthe cases quoted.
For my own part I hod it difficult to see that a writ of executionissuing from our Courts, although it includes in its grasp immovableproperty, is in any way different in its scope and object to awrit of fieri facias. At the same time I think also our process ofexecution being in a great measure derived from the Englishprocedure upon such proceedings, though enlarged by the inclusionin its scope of immovable property, and the principle of concurrence•derived from Roman-Dutch Law, should be governed by thoseprinciples which have emanated from the English judicial construc-tion of the rights and liabilities existent under writs where ourrules of procedure are silent.
Ashurst J., in Hutchinson v. Johnston, ubi supra, stated “ thegeneral principle of law, and which has not been contradicted by anyof the cases cited, is that the person whose writ is first delivered tothe Sheriff is entitled to a priority, and that the goods of the partyare bound by the delivery of the writ. ” Originally at common law•goods were held bound from the teste of the writ, and even now asbetween the execution-creditor and the execution-debtor the goods•are still so bound. See ex parte Williams, in re Davies;1 Giles v.■Grover* per Patterson J.
I should read Ashurst’s judgment in Hutchinson v. Johnston asintimating that the common law had been restricted in the principle•of the binding character of the writ on its delivery to the Sheriffbefore the Statute of Frauds (29 Car. ii. „C. 3, S. 16) was passed, butthat the Statute embodied the existing judicial ruling on the pointand further safeguarded bona fide purchasers for value. TheMercantile Law Amendment Act (19 & 20 Victoria C. 97, S 1) madean actual seizure necessary as against a' bona fide purchaser.
The Sale of Goods Act, 1893 (66 & 67 Victoria C. 71), repealedthe Statute of Frauds and the Mercantile Law Amendment Act,"but re enacted them in positive instead of negative terms.
The goods here were already seized under the mandate of seques-tration, and it would be useless, as Bonser C.J. stated in NarayianChetty v. Ellis (ubi supra), for the Fiscal to go through a duplicate>overt process of seizure.
i (2872) L. R. .7 Ch. 314.
2 (1824) 1 FT. L. C. 74.
( 91 )
The property here being sequestered in the hands of a public 1908.officer, the Fiscal conies under the exception “ o ” to section 229 of March 17.the Civil Procedure Code, and would be governedby section 232. Mn3DliETo»
Are we then to say that, as a condition precedentto the due andJ-
lawful seizure of these goods, the Fiscal is to give notioe to himselfto hold the goods subject to the further orders of the Court; andthat if he fails to do so, the writ-holder is to be deprived of hisrights? I cannot think so. Lex neminem 'cogit ad vana seui nut ilia.
I presume the Fiscal keeps a book in which he records all seizuresmade by him under process of the Court, and would naturally havea record of the mandate of sequestration of these goods. All thathe would, therefore, have to do for his own guidance would be tonote in that book the date of receipt of the defendant’s writ. Inthe present case the Fiscal apparently entirely ignored the direc-tions of the defendant’s proctor, but the -defendantought not to be-
damnified by the action of an officer of the Court,if he has taken
all the necessary, steps to obtain his legal rights. This case is to bodistinguished, I think, from the neglect of the Fiscal to furnish alist, such as was held to be a material irregularity avoiding a salein Dahanayaka v. Zilva.1 This obligation apparently was heldto be an imperative material condition, without the fulfilment ofwhich the sale must be deemed materially irregular. The objectof giving this list to the judgment-debtor or the headman was no*doubt to enable verification of the ownership of the property to bemade previous to sale, while the obligation of the Fiscal to givenotice to himself cannot be deemed to be either necessary orimperative. In the present case the Fiscal has omitted to do anact in itself useless of giving notice to himself, and has expresslyignored the directions given him by the defendant’s proctor.
In the case reported in 2 Bombay High Court Reports 152, 155,the Court there supported its ruling that a second seizure was-unnecessary when the goods were already under attachment in thecustody of the Nazar, by Janes v. Atherton (ubi supra) and Johnsonv. Evans (ubi supra), and the principle on which Frost’s case, 5-Reports 89, was decided.
Section 660 of the Civil Procedure Code , permits a judgment-creditor of a person whose goods are under sequestration to applyfor the sale of the sequestered goods, and section 661 renders itunnecessary for the sequestrator, who afterwards obtains a decree,to again procure the seizure of the property as a preliminary to sale-It seems to me that the issue of the writ in favour of the defendantpresupposes the due fulfilment of all the conditions precedent to*its issue under sections 224 and 225, unless the' contrary is shown,,which is not the case here. i
i (1889) 9 S. C. C. 26.
1908. I therefore think that where the Fiscal has already seized propertyMarch 17. upon a mandate of sequestration, and while so having the propertyin question in custodia legis receives a writ of execution from aJ. judgment-creditor of the person whose goods are under sequestra-tion, the receipt by the Fiscal of such writ operates as a seizure ofsuch goods without further action on the part of the Fiscal. Underthese circumstances I do jqot propose to decide the other pointarising under section 26 of the Sale of Goods Act, 1893.
EEutohinsoh C.J.— ,
I concur. The judgment of the Distriot Court should be setaside, and the action dismissed with costs in both Courts.
Appeal allowed.