011-NLR-NLR-V-29-MARIKAR-v.-PERERA.pdf
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Present: Garvin and Lyall Grant JJ.
MARIKAR v. PERERA38—D. C. (Inty.) Kalutara, 12,645.
Action under section 247 of the Civil Procedure Code—Claim inquiry—Extra judicial investigation—Civil Procedure Code, ss. 24$and 247.
Where, upon a claim being preferred under section 241 of theCivil Procedure Code, the Judge dismissed the 'claim, after obtainingcertain information from the Secretary of the Court,—
Held, that the order disallowing the claim was not conclusiveas to the title of the claimant if no action under section 247was brought.
A
PPEAL from an order of the District Judge of Kalutara. Thefacts appear from the judgment of Garvin J.
E. W. Jayewardene, K.C. (with J. S. Jayewardme), lor 3rddefendant, appellant.
H. V. Perera (with Eajapakse), for plaintiff, respondent.
June 29, 1927. Garvin J.—
This appeal arises from a contest between the plaintiff and the3rd defendant, each of whom claims to be lawfully entitled to theland which is the subject-matter of this action.
The parties are agreed that this land once belonged to* Deonis.
The plaintiff claims by a right of purchase at a sale in executionof a writ issued against Deonis in case No. 10,152 of the DistrictCourt of Kalutara, and he relies on his Fiscal's transfer No. 9,499dated July 22, 1924.
It is the case for the 3rd defendant that Deonis had sold andconveyed his interests in thi6 land by deed dated March 8, 1923,to one Jibadasa, whose interests passed in 1924 to Noris Singho, whoin turn sold to the 3rd defendant.
The plaintiff, however, contended successfully in the Courtbelow that the title of the 3rd defendant was barred by reasonof the circumstance that Jinadasa claimed the land when it wasseized under the writ issued in D. C,, Kalutara, No. 10,152. Thatclaim was disallowed, and no action under section 247 wasinstituted by Jinadasa to establish his claim to the land.
The learned District Judge upheld this contention, and thequestion which arises for decision upon this appeal i^ whether theorder disallowing the claim of Jinadasa is an order under section 244
1927*
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1927.
CtAHVIK J.
Marika r rPercrct
of the Civil Procedure Code, and as such conclusive as to the title ofJinadasa and his successor the 3rd defendant by reason of theadmitted fact that Jinadasa brought no action under section 247 toestablish his claim.
A certified copy of what purports to be the claim proceedingstaken in case No. 10,152 is filed of record. It consists of theformal report made by the Fiscal of the seizure and of the factthat the premises under seizure were claimed by Jinadasa. Uponthis the learned District Judge had endorsed—
“ Let me see deed of purchase please.
The next following entry indicates that it was addressed to theSecretary of the Court. The entry is as follows: —
“ Sir, by deed of transfer No. 14,637 dated March 8, 1923, KapugeDon Deonis Appu transfers the entirety of Wekiriela-'godella to Busige Jinadasa Perera for Rs. 500. Thisdeed and the connected deeds are submitted ….(Sgd.) R. M.”
It is quite obvious that the Secretary obtained the deeds fromthe claimant and submitted them to the Judge presumably inChambers.
The next endorsement is as follows: —
Y When was the action No. 10,152 filed. What is the date of
I
the decree, and has consideration passed on this deed/*
The paper contains a further entry by the Secretary answeringthese questions. It is followed by the following endorsement: —
“ Claim disallowed. Sale is after date of decree. Judgmentdebtor (the vendor) is reported in possession at date ofseizure. *'
It is signed by the District Judge.
This is the order which it is said is conclusive as to the title whichthe 3rd defendant wishes to establish. By section 247 the orderswhich are made conclusive are orders made under sections 244,245, and 246.
It has been held repeatedly by a long series of judgments ofthis Court, based upon an examination of sections 244, 245, and 246and the kindred sections of the Code, that the order which is madeconclusive by section 247 is an order passed by the Court, afterinvestigation of the claim. See Fonseka v. Ukkurala/ Chelliahv. Sinnacwtty,2 Maricair v. Maricair3 Perera v. Fernando,*- andKiri Etana et al v. Kirihamy Vidane et al.s
1 (1912) 1&N. L. R. 219.3 (1915) 1 C. W. R. 17.
= (1914) 18 N. L. R. 65.* (1917) 4 C. W. R. 164.
* 11921) 22 N. L. R. 438.
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Section 241 of the Code requires the Fiscal to report a claim tothe Court. It then proceeds as follows :—
And the Court shall thereupon proceed in a summary mannerto investigate such claim or objection, with the like powerns regards the examination of the claimant or objector,ami in all other respects as if he were a party to theaction. ”
1027.
Garvin J
Marikar vPerera
What is contemplated is a proceeding in Court of a summarynature directed to the investigation of the claim preferred. Thisis in no sense such a proceeding, nor is it possible to suggest that thisis such an investigation as is required before an order disallowing aclaim can fairly be said to be an order made under section 245, andas such conclusive as to the title of the claimant if no action undersection 247 is brought. Such inquiry as has been made appears tobe extra judicial, and consists of some queries addressed to theSecretary and answered by him. No date for an inquiry wasfixed, and no inquiry has, in fact, been made by the Court of theclaimant, nor was he given any opportunitj' of establishing that hehad some interest in -or was possessed of the property seized. Anorder made under these circumstances is not conclusive as to thetitle of the claimant, and does not operate as a bar to the proof ofhis title in any subsequent proceeding.
For these reasons I would set aside the order under appeal, andremit the case to the Court below for the trial and determinationof the remaining issues.
The appellant is entitled to the costs of this appeal and of thecontest in the Court below.
Lyall Grant J.—
The principal question for decision in this case is whether aneffective order under section 245 of the Civil Procedure Code wasmade so as to bar the present action.
A claim was preferred by the appellant under section 241. Thejournal entries show that the learned District Judge called forthe deed of purchase upon which the claim was founded andobtained information from the clerk of the Court. Thereupon theDistrict Judge disallowed the claim. There is nothing to showthat, any other investigation of the claim was made.
The only question for decision in this appeal is whether thisis a sufficient investigation under section 241. Section 241 directsthe Court to investigate the glaim, with the like power as regardsthe examination of the claimant, and in all other respects as if liewere a party to the action. /
There is nothing to show that the claimant was given an oppor-tunity to be heard in support of his claim, and it may be assumedthat he was not heard.
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1927.
Lyalt.Grant J.
Marikar v.Perera
In Fonseka, v. UJckurala 1 the Court held that where a claimantwas prevented from attending the inquiry and presenting hisclaim owing to a mistake on the part of the Court, and the Courtdismissed the claim owing to the absence of the claimant, theorder was not a valid order under section 245 and was notconclusive within the meaning of section 247.
In Chelliah v. Sinnacutty 2 it was held that where the claim wasdismissed owing to a default by the claimant in supplying thenecessary stamps to issue notice on the parties, it did not amountto an order disallowing the claim under section 245.
It is clear that the practice of this Court has been to insist interalia, upon an inquiry, in open Court, and that such an inquiry alonehas been considered to b.e the investigation mentioned in section 241.
An order made without such an investigation, or at any ratewithout an opportunity being given to the claimant to prove hisclaim and to the creditor to raise objections, is not an order undersection 245. and does not prevent the claimant maintaining anaction after Ihe fourteen days mentioned in section 247 haveelapsed.
Set aside.
> (1912) 15 N. L. R. 219.
* (1914) 18 N. L. R. €5.