189-NLR-NLR-V-47-MURUGESU-Appellant-and-THAMBIPILLAI-et-al-Respondent.pdf
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Murugeau v. ThambipHlai.
1946Present: Nagalingam A.J.MURUGESU, Appellant, and THAMBIPILLAI et al., Respondents.223—C. R. Jaffna, 16,666.
Res judicata—Action for pre-emption under Thesawalame—Previous action•under Civil Procedure Code, s. 247, between same parties in respect ofsame property—Cannot operate as bar—Civil Procedure Code, as. 207,247.
NAGALtNGAM A.J.—Murugeeu ti. Thambipillai.
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Where a vendee of certain lands brings an action under section 247of the Civil Procedure Code against his vendor and a person who holdsa decree against the vendor asking for a declaration that the lands arenot liable to be seized and sold under the decree in favour of the decreeholder, judgment given in favour of the vendee cannot operate as resjudicata, in an action subsequently brought by the decree holder againstthe vendor and vendee claiming a right of pre-emption in respect of thesame lands. The cause of action that gives rise to an action to pre-emptis entirely independent of and totally unconnected with the cause of actiongiving rise to a 247 action.
PPEAL from a judgment of the Commissioner of Bequests, Jaffna.
N. Kumar as irugham, for the plaintiff, appellant.
No appearance for the defendants, respondents.
Cur. adv. mitt.
November 25, 1946. Nagalingam A.J.—
This is an action under the Thesawalame by the plaintiff, whom Ishall refer to hereafter as the pre-emptor, to pre-empt certain landsdescribed in the schedule to the plaint which he alleged had beentransferred by the 1st defendant, the vendor, to the 2nd defendant, thevendee, in derogation of the plaintiff’s right, and the only point fordecision on appeal is whether the action is barred by certain proceedingshad between the parties in an earlier case.
The history of and the facts relating to the earlier case are as follows.The pre-emptor and another by virtue of a decree entered in their favouragainst the vendor, the judgment-debtor, had caused the Fiscal to seizethe lands in question. Prior to the date of seizure the vendor had partedwith his interests in favour of the vendee who preferred a claim whichwas dismissed. The vendee thereupon instituted a 247 action againstthe decree holders of whom, it will be remembered; the pre-emptor wasone, and the judgment-debtor, the vendor, for a declaration that thelands were not liable to be seized and sold under the decree in favour ofthe decree holders. The pre-emptor and his co-decree holder unsuccess-fully contended that the deed by the vendor to the vendee was in fraudof creditors and by the decree in that action it was declared that thelands were not liable to be seized and sold under the decree.
It has been argued successfully before the learned Commissioner ofRequests that the pre-emptor not having prayed by way of reconventionfor a declaration of his right to pre-empt in the 247 action, when hefiled his answer, and not having obtained an adjudication thereon atthat stage, that decree operates as a res ad judicata and that the pre-emptor cannot in consequence maintain the present action. This viewhas been reached upon a consideration of the explanation to section 207of the Civil Procedure Code. Under that explanation it is only “ Everyright of property …. or to relief of any kind which can beclaimed, set up or put in issue between the parties to an action in thecause of action for which the action is brought ” which becomes on the
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NAG ALIN QAM A.J.—Murugeau v. ThamMpiUai.
passing of the decree a res adjudicate* whether it be actually so claimed,set up or put in issue or not in the action. Sufficient stress cannot belaid on the importance of the words I have italicised for otherwisethe effect of the explanation would be lost. What was the cause ofaction of the vendee in instituting the 247 action against the pre-emptorand others ? It was that land admittedly belonging to him had beenunlawfully seized by the Fiscal at the instance of the pre-emptor and hisco-decree holders and the relief that the vendee claimed was a declarationthat the lands were not liable to seizure and sale. The pre-emptor resistedthe claim of the vendee on the ground that the deed had been executedin fraud of creditors and claimed a declaration that the deed be set asideand the lands are liable to seizure and sale.
The defence thus set up properly put in issue between the parties notonly the right of the pre-emptor to have the dominium of the propertyrevested in the judgment-debtor but also the relief he claimed to haveit declared that the properties were bound and executable under thedecree, and both these matters had direct relation to the cause of actionupon which the vendee came into Court. Can it be said that the rightof pre-emption claimed by the pre-emptor was a right to property orrelief of any kind in the remotest degree connected with the cause ofaction set out in the 247 action ? Could the pre-emptor have claimedthe right to pre-empt by way of reconvention ? His right, if any, was notonly against the vendee, the plaintiff in the 247 action, but in a largermeasure against the judgment-debtor, his co-defendant. Had the rightto pre-empt been in fact claimed in the 247 action by the pre-emptor,could the matter have been adjudicated upon without the judgment-debtor, the defendant, being afforded an opportunity of filing his defenceto the claim thus set up ? The issues that arise upon a claim to pre-emptare entirely foreign to those that arise in a 247 action. The cause ofaction that gives rise to an action to pre-empt is entirely independentof and totally unconnected with the cause of action giving rise to a 247action. In fact a Court trying in the course of the same action issues inregard to a 247 action and an action for pre-emption would be tryingtwo independent suits, and to say the least, it would be embarrassing,not to say confusing.
I am therefore of opinion that the right to pre-empt could not properlymid legitimately have been interposed in the 247 action as it cannot besaid to be either a right of property or relief which could have beenclaimed, set up or put in issue between the parties in the 247 action. Ittherefore follows that the failure to have counter-claimed in the 247action the right to pre-empt cannot be deemed to be a bar. As this isthe only basis upon which the plaintiff’s action has been dismissed, I setaside the judgment of the lower Court and enter decree for the plaintiffin terms of his prayer to the plaint with costs both in this Court and theCourt of Bequests.
Appeal allowed.