MARACAIR v. MARICAIR

131-NLR-NLR-V-22-MARACAIR-v.-MARICAIR.pdf


( 438 >
1921.
Present: Bertram C.J. and De Sampayo J.
MARACAIR v. MARICAIR,
314—D. C. Balticaloa, 4,916.
Claim dismissed for default—Action not instituted under s. 247, CivilProcedure Code—Conclusive, effect of order dismissing cimm.
Where the date of the inquiry of a claim under section 241, CivilProcedure Code, has been duly notified and the proceeding isotherwise regular, and where, therefore, it is the duty of the claimantto appear and adduce evidence in support of his claim, but hefails to do so, the Court is within its powers in disal. owing theclaim, and an order so made is equivalent to an order after investi-gation under section 245 of the Code, and is conclusive against theclaimant unless he brings an action under section 247.
rpHE facts appear from the judgment.
H. J. C. Pereira, K.C. (with him Anda/iandan), for plaintiff,appellant.
E. W. Jayawanlene, for defendant, respondent.
August 4, 1921. De Sampayo J.—
This section raises a question of procedure of considerable import-ance. In form it is an action to vindicate a field called Mullacare-vayal. The plaintiff claims it on a deed of transfer granted to himby one Meeralebbe V. V. Ibrahim Saibo, The defendants, on theother hand, allege that the field belonged to one M. K. Mustaphalevve
v(1911)14 N.L. R. 193.
( 439 )
Marakayar, and that upon his death, his widow, Paturauttumma,as administratrix of his estate, sold the same to them on December17, 1919. This dispute as to title has not been determined on itsmerits, but the plaintiff’s action has been dismissed on a legalobjection taken by the defendants. It appears that in D. C.Batticaloa, 4,391, the held was seized in execution as the propertyof Ismalewe Marakair Ahamadolebbe, the defendant in that action,and the said Meeralebbe V. V. Ibrahim Saibo preferred a claim inexecution. This claim was eventually dismissed under the circum-stances presently to be mentioned. Ibrahim Saibo did not bringany action under section 247 of the Civil Procedure Code, and theproperty was in due course sold by the Fiscal and was purchasedby the second plaintiff in that action, and was subsequently trans-ferred by the purchaser to Mustaphalevve Marakayar, under whomthe defendant claims title. It is the effect of the order dismissingIbrahim Saibo’s claim in execution that has to be considered. Whena claim in execution is dismissed or disallowed after inquiry, and noaction is brought under section 247 of the Civil Procedure Code, thepurchaser in execution will obtain good title as against the unsuccess-ful claimant, whatever the actual right of the claimant to theproperty might be. In this case, however, there was no inquiryinto the claim. On the day fixed for inquiry the claimant Ibrahim'Saibo was absent, though he himself had issued notice of inquiryto the other parties, and his proctor, Mr. Tambyrajah, who waspresent, stated that he had no instructions, and no evidence what-ever was produced. Thereupon the Court dismissed the claim. Inthe circumstances, the claimant cannot well be said to have appearedby his proctor, and I think that the order must be taken to havebeen made for default of appearance.
Section 241 of the Civil Procedure. Code provides for the Courtinvestigating a claim in execution, and section 243 requires theclaimant on such investigation to adduce evidence in support ofhis claim. Sections 244 and 245 provide that, according to thefinding of the Court upon such investigation, the Court shall releasethe property from seizure or shall disallow tlie claim. Finally,section 247 provides that the judgment-creditor or the claimant,as the case may be, may institute an action, and declares that, subjectto the result of such action, if any. the order on the claim shall beconclusive. The question in this case is whether an order dismissinga claim, not upon investigation, but for default of appearance on thepart of the claimant, or for his failure to adduce any evidence, is anorder under section 245, with the consequence that, if no action isbrought under section 247, the order is conclusive against theclaimant.
The decisions on this point are somewhat conflicting. Theearliest local case is Silva v. Wijesinha,x which, though three Judges
1921.
Db SampayoJ.
Maracair v.Maricair
111892) 2 C. L, R. 148.
( -140 )
1921.
Db Sampayo
J.
Maracair v.M&ieatr
took part in it, is not quite a good authority. The report statesthat the claimant was absent on the day for investigation, and noevidence was adduced on his behalf, but that the Court “ adjudi-cated upon ” and disallowed the claim. It is possible that theCourt in some way disposed of the claim on its merits. In anyevent, the question considered was only whether a claimant, whoabandoned his claim, ought to be. allowed to institute an actionunder section 247. The Court thought that such a practice wascontrary to principle, and was certainly most inconvenient andoppressive, but that as the Code did not expressly provide againstit, the claimant was not prevented from bringing such an action.In Mvitu Menika v. Appuhamy1 the claimant was in default, and anex parte order was made dismissing the claim, but was subsequentlyset aside on the claimant's application. Wood Renton J. heldthat the claimant had no right to have the order set aside, and thathis remedy was the action provided for in section 247, and concludedhis judgment as follows : “There can be no doubt but that an exparte order is an order within the meaning of this group of sections,and I think, therefore, that in terms of section 247 it is conclusive,unless the party aggrieved by it brings the action for which thatsection provides.”
On the other hand, in Fonsekct v. Ukkurala2 the Court, con-sisting of Lafacelles C.J. and Wood Renton J., pointed out that theCode provided that the order should be made upon investigation,but where the claimant was prevented from attending on theproper day owing to a mistake made by the Court as to the fixingof the date for inquiry, and an order dismissing the claim wasmade 'in his absence, it was held that the order was not conclu-sive under section 247. The distinction between a case where thereis a real default of appearance and failure to adduce evidence, anda case where the claimant is not bound to appear on the day fixedfor inquiry, was emphasized by Wood Renton J. In this distinction,I think, lies the solution of the difficulty. This same distinctionwas recognized by Pereira J. in Chelliah v. Sinnacutty? for thereit was held that if no investigation took place owing to a cause forwhich the claimant was not responsible, the order dismissing theclaim would not be one under section 245, but that if the inquirywas fixed with notice to all parties, and the claimant absentedhimself or otherwise failed to adduce evidence in support of theclaim, the order would be one under section 245, because in thatcase the proceeding would, in effect, be an investigation of theclaim, and the learned Judge in that connection used the expression“ constructive investigation.” This no doubt is putting somewhatof a strain upon the language of the Code, but considering theordinary and- necessary consequence of the default of a party, I 1
1 {1911) U N. L. H. 329.a {1912) 15 N. L. R. 219.
{1914) 18 K. L. R. 65.
( 441 )
think that, if the Code does not specifically provide lor the case,an extended interpretation of its actual provisions is not unreason^-able.
The Indian Courts appear to me to have taken a similar view.In Roy v. Dossia1 the Court observed that a claim rejected becausethe claimant failed to produce any evidence at all was in the samefooting as if he produced evidence unworthy of credit, and that theorder was in effect an order on the merits of the case. This is abetter way of describing the situation than calling it a 4'1 constructiveinvestigation.*’ Hajrcth v. Tajooddeen2 was also a decision to theeffect that an order disallowing a claim by reason of the claimantnot having given any evidence Was an order under section 246 ofthe Indian Act of 1859 corresponding to our section 245, and theCourt proceeded to observe that where it was the claimant’s dutyto appear and give evidence and he did not do so, the only thingthe Court could do was to make an order under that, section dis-allowing his claim. Debia v. Chowdry 3 and Debia v. Khatoom4 areto the same effect. Rahim Bux v. Abdul Rader5 was decided onthe same principle. On the other hand, in Sarala v. Kamsala6 theCourt held that an order dismissing a claim for default of appearancewas not an order made after investigation and was not conclusive.The report of the case, however, does not show whether the claimanthad notice of the day for inquiry, and whether therefore it was hisduty to appear.
In this state of judicial authority, and upon a consideration of theprinciples involved in this question of procedure, I think that theruling should be that where the date of the inquiry has been dulynotified and the proceeding is otherwise regular, and where thereforeit is the duty of the claimant to appear and adduce evidence insupport of his claim but he fails to do so, the Court is, within itspowers in disallowing the claim, and that an order so made is equi-valent to an order after investigation under section 245 of our Code,and is conclusive against the claimant, unless he brings an actionunder section 247. In view of the circumstances, in which the orderdismissing the plaintiff’s vendor Ibrahim Saibo’s claim in action
C. Batticaloa, 4,391, was made, I think the order concludedIbrahim Saibo and necessarily also the plaintiff. I would dismissthe appeal, with costs.
1921.
Db SampayoJ.
Maracair v.Marieair
Bertram C.J.—I agree.
Appeal dismissed.
(1873) 20 W. R. 345.
(1874) 21 TV. R. 409.
(1874) 22 W. R. 37.
(1875) 24 W. R. 411.
(1904) I. L. R. 32 Cal. 537.
(1908) I. Lf R. 31 Mad. 5.