Bartholomeuag, for plaintiff, appellant.—The learned Commissionerfollows the judgment in Adarahamy v. Abraham.1 This case isbased on the decision of Silva v. Nona Hamine.2
Silva v. Nona Hamine 3 only decides that the rights of parties inan action under section 247 must be decided according to the rightsof the parties at the date of the institution of the action.
In Adarahamy v. Abraham 1 the Supreme Court did not considerMel v. Fernando,s in which it was held that the right which a judg-ment-creditor seeks to establish in an action under section 247 is theright to have the land sold to pay his debt, and that the value ofthat right must be measured by the amount he can recover. Seealso the judgment of Wendt J., in PonnambalaM v. Paramanayagam.4
A. St. V. Jayewardene (with him J. S. Jayewardene), for thedefendant, respondent, relied on Adarahamy v. Abraham.1
Cur. adv. vult.
March 19, 1914. De Sampayo A. J.—
This is an action under section 247 of the Civil Procedure Codeby the execution creditor against the successful claimant. TheCommissioner has dismissed the action on the ground that the Courtof Bequests has no jurisdiction, and the plaintiff appeals. Thesubject-matter is a land which is admittedly above Bs. 300 in value,and the matter of jurisdiction turns upon the amount of the plaintiff'sclaim. The writ was for Bs. 330.25, and the seizure was defectedto realize that amount. But between the seizure and the date ofthis action it appears that the debtor made a payment, and theplaintiff’s claim is now reduced to Bs. 290. The question then iswhether the jurisdiction of the Court should be determined by theamount of the writ or by the amount presently due. The actionunder section 247 is based, as it must be, on the wrongful claim inexecution, and the' purpose of the action is, in the words of thesection, to have the property declared liable to be sold in executionof the plaintiff's decree.- The’'sale, if the plaintiff succeeds, will takeplace in pursuance of the seizure already effected, and I have nodoubt that the test of jurisdiction is the amount for the recoveryof which the writ was issued and the seizure was made. This wasthe view taken in Adarahamy v. Abraham.,1 which discusses all theauthorities, and with which I entirely agree. It is urged that in anycase the Court should not have dismissed the action altogether.As the action under section 247 has to be brought within fourteen*days of the date of the order on the claim, the dismissal of the action-would deprive thd plaintiff of all remedy whatever, and it is desirable, 1
3 (1896) 2 N. L. A. 22$.
* (190$) 9 N. L. R. 48.
Nag an 0Rodrigo
1 {1907) 2 A. C. B. 120.3 (1906) 10 N. L. A. 44.
( 850 )
Nagpn if.Rodrigo
if possible, to avoid that result. In Werthelis v. Daniel Appuhamy1Wendt J. considered, under similar circumstances, that the properorder was to allow the plaintiff to retrace Ids steps and to returnthe plaint to be presented to the proper Court under the provisionsof section 47 of the Code. That course might justly be followed inthis case, and I make an order in similar terms to those adopted inthe above case. The plaintiff must pay to the defendant the costsin the Court of Requests and in this Court. On payment of theseCosts within one month of the receipt of the record in the Courtbelow, the decree appealed from will be set aside, and the Commis-sioner will endorse on the plaint the date of its presentment and ofits return, together with the reason for such return, and will returnthe plaint to the plaintiff to be presented to the proper Court. Onplaintiff’s failure to comply with the order as to costs, the decreewill stand affirmed, with costs.