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MELL v. FERNANDO et al.D. C., Colombo, 4,732.
Jurisdiction—Action- under 8. 247 of the Civil Procedure Code—Test as to
Court in which it is to be instituted. '
Plaintiff obtained a mortgaged decree against second defendantfor a debt of'Rs. 39- 95, and on the writ issued in the case seizedthe mortgaged property. First defendant claimed it, and hisclaim was upheld by the District Court. Plaintiff then institutedin the District Court an action under section 247 of the CivilProcedure Code'against both the defendants to have the propertyseized declared executable under his writ—•
Held, that as the value of the right that the plaintiff was seekingto establish was Rs. 39-95, his action under section 247 should havebeen brought in the Court of Requests, although the value of theland affected was in excess of the jurisdiction of such Court.
' h: facts of the case appear in the judgment.
Peiris, for appellant.
Bawa, for respondent.
11th September, 1896. Bonseb, C.J.—
This is an action under the 247th section of the Civil ProcedureCode, to have it declared that certain land is executable under amortgage decree which has been made against the second defendant.
The land in question is claimed by-the first defendant. Theamount of the mortgage debt .is Rs. 39*95. The plaint gives aperfectly unintelligible description of the land. It appears to havebeen a combined effort, and two Acting District Judges madeattempts to understand it, but absolutely failed. The answer isequally unintelligible. A surveyor was employed, and he wasunable to unravel the difficulty or explain the plaint.
The case came' to trial, and in the result the Acting DistrictJudge came to the conclusion that the plaintiff had not provedthe identity of the land claimed with the land described in themortgage. The counsel for the appellant has pointed out thatthe Acting District Judge fell into error in one or two points asto certain of the deeds which were put in. Even -so the case is notmade clearer; and after hearing all that Mr. Peiris had to say,I am of opinion that the plaintiff has> quite failed to prove whatis necessary for him, to prove to fhaintain this action. In thecourse of the argument I asked why this case for Rs. 39*95 wasbrought in the District Court, and was told that actions of this
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September 11,Bouses, C. J.
kind are treated as being actions for the value of the land affected,and that in this case the value of the land was in excess of thejurisdiction of the Court of Requests. In my opinion the practiceis wrong, and should cease. The right which the plaintiff wasseeking to establish was his right to have this land rendered liableto pay his debt of Rs. 39-95. Now, what is the value of thatright ? The value to the plaintiff of his right is measured by theamount he can recover—in this case Rs. 39-95 ; and that beingso the action ought to have been brought in the Court ofRequests quite irrespective of the value of the land in respect ofwhich he wished to setup his right. Therefore the costs both in thisCourt and in the District Court must be taxed as though the action'bad been instituted in the Court of Requests..
This appeal will be dismissed.
Withers, J., agreed.
MELL v. FERNANDO et al