W. Jayawardene (with him Joseph), for appellants.
A. St. V. Jayawardene (with him Mahadeva), for respondents.November 20, 1918. Bebtbam C.J.—
This is an action under section 247 of the Civil Procedure Code,and the main question in the case is whether the title is in thejudgment-debtors. The question is, in fact, not arguable, becauseit appears that in the District Court a formal admission was madeby the present appellants that the title was in the judgment-debtors. That admission, ties the hands of the present appellants.They are bound by that, and the whole of Mr. Jayawardene’s
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argument has been an elaborate and laborious attempt to escapefrom that position. If a party in a case makes an admission forwhatever reason, he must stand by it; and it is impossible for himto argue a point on appeal which he formally gave up in the Courtbelow.
The only other point was this. It is said that even though thetitle is in the judgment-debtors, yet the judgment-creditor is notin a position to assert it, because his whole action is fradulent, andis based upon a collusive promissory note. It is not necessary togo into the whole history of this action. But it may he mentionedthat in a previous action under the same section the judgment-creditor was the plaintiff, and in that previous action the questionof the bona fides of this promissory note was contested, and judg-ment was given against the judgment-creditor. In that action thequestion of the bona fides of the note and the collusiveness of thejudgment was perfectly relevant. Under section 247 of the CivilProcedure Code it is provided that an action must be institutedwithin fourteen days, and that in the case of an execution-creditorthe action is “ to have the property declared liable to be sold in. execution of the decree. ” That being the object of the action ofthe execution-creditor, it is perfectly relevant to point out that hecan have no such right, because his action is founded upon fraudor collusion. But the same section provides in effect, with regardto any claim by a person other than the execution-creditor, thathis action is to establish “ the right which he claims to the propertyin dispute." In that action the bona fides ( of the creditor in theoriginal action in which judgment was obtained is not material.
Mr. Jayawardene has cited as against that proposition the caseOf Abdul Cadet v. Annamalay. 1 I do not think that case reallyhelps him. The effect of that case is that where a person bringsan action under section 247, and claims to be in possession, of theproperty, all that he need prove, in the first instance, is that heis in possession. But the onus is then shifted, and it is then forthe execution-creditor affirmatively to make out a title in theexecution-debtor. I do not think that the case can be put anyhigher than that.
It appears, however, to have been considered in the District Courtthat the question of the collusiveness of the action was material,and the District Judge went into that question. As a- matter offact, however, he found that the action was not collusive, and thatthe execution-creditor had a perfect right to bring an action. Therecan be no question that there were facts to justify such a finding.It is said against that, that the learned District Judge, in a previouscase in which the very same facts were in issue, eame to a diametric-ally opposite conclusion. This is no doubt open to comment. Nodoubt the learned District Judge had other material before himl(1896) 2 N. L. R 166.
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for the purpose of the second decision. At any rate, that deoisionmust be taken to stand for the purpose of this action. Even,therefore, if it were material to inquire in this case whether theaction In which judgment was obtained was a collusive one, weshould have to take the finding of the learned District Judge thatit was not, and the question, therefore, of the relevancy of thatconsideration need not be further discussed.
Mr. Jayawardene also raised a further point, which hardly admitsof argument. In both these actions under section 247 the judgment-debtors were formally made defendants. He now wishes to suggestthat, because in the present action the execution-debtor and thosetwo execution-creditors are co-defendants, the old original findingof the District Judge that the action was a collusive one is resjudicata. It is hardly necessary seriously to consider that proposi-tion. Nothing is res judicata except between persons who were atissue on the occasion when the thing was adjudged or personsclaiming through them. In my opinion, for the reasons I havegiven, the appeal must be dismissed, with costs.
De Sai&payo J.—I agree.
Appeal dismissed.