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NARAYANAN CHETTY v. ELLIS.
D. C., Colombo, 11,003.
Action against Fiscal—Damages Jar negligently allowing property seized to beremoved—Bight of Fiscal to plead that such property was not the execution-debtor’s property—Civil Procedure Code, s. 226.
To an action for damages brought against a Fiscal for negligentlyallowing the property which had been seized by him to be removed bya third party, it is a good defence to show that the property which hehad failed to sell was not the property of the execution-debtor.
HE plaintiff in this case obtained a money decree against oneGauder, a livery stable-keeper of Colombo, and on the 22nd
September, 1897, pointed out to the Fiscal for seizure certainhorses and carriages then in his possession. The Fiscal seizedall the property so pointed out aud placed guards in possessionand advertised the sale for the 23rd October. On the 29th Septem-ber tinother creditor, who had a mortgage decree against thesame property, save a hansom carriage which was under seizure,caused the Fiscal to make a second seizure. The sale of thearticles thus seized was fixed for the 22nd October, and was dulycarried out; but- when, the following day, the Fiscal’s officerwent to sell, under the plaintiff’s writ-, the hansom carriage leftunsold at the previous sale, it had disappeared.
The plaintiff now sued the Fiscal for the value of this carnage,in that by his gross negligence and irregularity of proceeding bepermitted the removal of the said carriage, and the plaintiffthereby lost the benefit of the seizure made, and in consequenceho was unable to recover the amount of the said judgment. Byreason of the premises plaintiff alleged that he had incurred lossand damages to the extent of Rs. 600.
Defendant pleaded that the plaint discolsed no cause of action,because there was no averment that the carriage in question was,at the time of the seizure, the property of either of the execution-debtors. and as such liable to be sold in execution of the decree inplaintiff's favour. He denied negligence and irregularity.
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The Additional District Judge entered judgment for plaintifffor Bs. 250, as the fair market value of the carriage in question atthe time of its seizure, holding that the English cases cited for thedefendant—namely, Stimson v. Famham (7 L. R. Q. B. 175) andSevi v. HaU (29, L. J. 0. P. 127)—were not authorities in supportof the proposition that the debtor’s ownership of the propertyseized was an indispensable averment in the plaint; and thateven if they were so, the liabilities of the Fiscal, being clearlydefined by the local Ordinances, could not be affected bydecisions pronounced in England.
Van Langenberg (with Allan Drieberg),for defendant,
Sampayo (with De Saram), for respondent.
I am unable in this case to agree with the law as laid downby the Additional District Judge of Colombo. The case is one oisome importance as regards the duties and liabilities of Fiscals.
The plaintiff in this action had recovered judgment against oneGauder, who was apparently a livery stable-keeper, having horsesand t carriages which he let out for hire. The plaint'ifE pointedout to the Fiscal for seizure a number of horses and carriages,which he alleged to be the property of his execution-debtor.Amongst these was the carriage, which is the subject of the pre-sent action. Whilst this was in the custody of the Fiscal, anothercreditor who had a conventional mortgage over all this propertyother than the last-mentioned carriage placed his decree in thehands of the Fiscal for execution, and we are told that the Fiscalwent through the interesting process of seizing the propertyagain which was already in his own custody, and thereupondouble the number of guards were placed over the property. Itseems to me that this was a very useless proceeding, and onlyresulted in additional expense to the parties concerned and in noother useful result, and I trust that it will not be repeated. Underthe second writ the property included herein was sold. Ofcourse the carriage in question was not sold, not being includedin it.
The next day, when the Fiscal proceeded to the sale of thiscarriage, it was found to have disappeared and to have got intothe possession of a nephew of the execution-creditor, who claimedit as his own property. The Fiscal’s officers told a story, which theDistrict Judge did not believ.e, of a rescue of this carriage by
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violence from their custody. The District Judge believed thatthe Fiscal's officers allowed the nephew to take away this carriage.Plaintiff thereupon brought this action against the Fiscal forimproperly releasing the carriage, alleging that he bad therebysuffered damage to the extent of its value. The District Judgeheld that it did not matter whether the nephew was the trueowner or not; and that even if he was the true owner, the duty ofthe Fiscal was to sell; and that he had failed in that duty andgave by way of damages the full value of the carnage, which heestimated to be Bs. 250.
He declined to follow the English case which was cited to him(Stimson v. Famham, 7 L. R. Q. B. 175), on the ground that theposition of a Fiscal in this Island was quite different from that ofa Sheriff in England. It was there held that it was a goodanswer to such an action as this for the Sheriff to show that theproperty which he had failed to sell was not the execution-debtor’s property, and that therefore the execution-debtor hadsustained no damage. The Additional District Judge says this:“ It cannot be doubted that unless the plaintiff can show that he“ has suffered some damage from the conduct of the Fiscal, he“ cannot succeed, but is it correct to say that, because a thing seized‘ ‘ at the instance of a creditor may turn out to belong to a stranger.“ therefore the creditor cannot possibly be damaged by the Fiscal“ allowing it to get out of his control? I venture to think not.“ The law has cast on the Fiscal the duty of seizing and selling,“ among other things, any property in the possession of the execu-“ tion-debtor pointed out to him for seizure by the creditor.” Now,it seems to me, that that is an incorrect statement of the law asregards the duties of Fiscals. Secion 226 of the Code enacts thatit is the duty of the Fiscal to “ seize and sell such -property of thejudgment-debtor as may be pointed by the judgment-creditor,”not such property as may be in the possession of the judgment-debtor, as the learned District Judge seems to read the section.Unless, therefore, the property belongs to the judgment-debtor,the Fiscal has no authority or right to seize or to sell it. If hedoes seize and sell it under a bond fide belief that it is the pro-perty of the judgment-debtor, the Code says that he is not to beliable in damages for his action; but it is quite clear that he isgoing beyond the authority given to him by the Court in sellinga third person’s property, though the Code says that in thecircumstances his conduct shall not afford ground for an actionfor damages against him. Section 363 is no authority for theproposition that a Fiscal can, or ought, under any circumstances,to sell one person’s property to satisfy another’s debt. It seems
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to me that the principle laid down in the English ease, to whichI have referred, should be applied to the present ease.
The District Judge did not decide the issue as to whether thiscarriage was the property of the judgment-debtor’s nephew ornot, but we were told by counsel that the evidence is all one way,and the counsel for the plaintiff did not desire to have the casesent back to the District Court for the decision of the DistrictJudge upon the evidence adduced on that issue. We thereforeorder that the action be dismissed with costs.
The Judge did not decide the issue to whom the carriagebelonged at the date of seizure, whether to the execution-debtoror to a third party. It is not necessary to send the case back forhis decision on that issue, because the evidence is short and clearand can be adjudicated on by this Court. The best of thatevidence is that the carriage originally belonged to the debtor.It has been sold by him and the purchaser had taken deliveryand had kept possession, though at the date of seizure the carriagewas in the coach-house or yard of the debtor. The carriage afterseizure was removed, whether forcibly or with the consent of theFiscal’s watchers may not be certain. The Fiscal did not recoverthe carriage, and it was not sold. In this action by the decree-holder against the Fiscal for damages for wrongful release ofthe property seized, it seems to me a sufficient defence for theFiscal to prove that the property did’ not belong to the execution-debtor named in the writ; if it did not, the decree-holdersuffered no loss by the release, which was legal. I see little orno difference between the release of property which does notbelong to the execution-debtor, and the release of a man arrested 'under a civil writ. It would surely be a good defence to an actionof damages for illegal release to prove that the man arrested wasnot the debtor.
NARAYANAN CHETTY v. ELLIS