031-NLR-NLR-V-20-PEDRUPILLA–v.-DIONISA.pdf
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Present: Ennis J.
PEDRUPILLA v. DIONISA.^247—C. R. Jaffna, 11,591.
Action unders. £47, Civil Procedure Code—Writ-holderbound by
judgment against debtor in action between debtor and claimant.
Obiter,—In an action under section 247 of the Civil ProcedureCode, between the unsuccessful judgment-creditor and the success-ful claimant, the judgment-creditor is concluded by a judgmentadverse to the judgment-debtor in a litigation between the debtorand the claimant.
Kuda Banda v. Dingiri Amma2 doubted.
^HE facts are set out in the judgment.
A. St. V. Jayawardene (with him Arulanandari), for appellant.—The learned Commissioner has found that the land belonged tothe second and third defendants, and not to the first defendant-respondent. That being so, he should have declared the land liableto seizure in execution of our decree^against the second and thirddefendants. It is not open to the first defendant-respondent to sayin these proceedings that the decree in the District Court caseNo. 11,048, in execution of which the land was seized, was obtainedby fraud and collusion between the plaintiff-appellant and thesecond and third defendants-respondents.
[Ennis J.—But this case has been the subject of litigation betweentiie first defendant on the one side and the second and third defend-ants on the other, and the first defendant has' been successful. Isnot tiie judgment-creditor concluded by that judgment against thejudgment-debtors ?]
No. See Kuda Banda v. Dingiri Amma.2
* Bam. (1843-1855) 132,8 {1911) 14 N. L. R. 145.
1917.
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1917.
PedrupiUo
v.'Dioniea
[Ennis J.—-In that case the distinction between an estoppelbrought about by an adverse judgment was not drawn.]
Counsel cited Richards v. Jenkins,1 Richards v. Johnstone,2 Shivapav. Don NagoyaPerera v. Perera.4
J. Joseph, for respondent.—The decree D. C. 11,043 was obtainedby fraud and collusion between the appellant and the second andthird defendants-respondents, and the appellant cannot availhimself of that decree against us.
[Ennis J.—Is it open to you to prove in this case that thedecree in D. C. 11,043 is fraudulent and collusive ?]
Yes. See Don Cornelis v. Don Carolis.5 There is ample evidenceto support the finding of the Judge on this point.
A. St. V. Jayawardene, in reply.
Cur. adv. vult.
November 6, 1917. Ennis J.—
This was an action under section 247 of the Civil Procedure Codeby the decree-holder in case No; 11,043, D. C. Jaffna, who, inexecution of the decree, had seized the land in dispute, which wassubsequently successfully claimed by the first respondent. Thesecond and third respondents are the judgment-debtors in caseNo. 11,043. The learned Judge has found for the appellant asregards the title to the land, which he holds belonged to the judgment-debtor, but he has further found that the decree in No* 11,043 wasobtained by fraud and collusion, to deprive the first defendant ofthe benefit of a judgment in his favour in D. C. Jaffna, No. 10,109 ;andrthe plaintiff’s action was dismissed, with costs.
It appears that there have been a series of actions between thefirst respondent and the second and third respondents respectingtitle to the land in dispute, beginning in 1909 with D. C.. Jaffna,No. 6,532, followed by C. R. Jaffna, No. 9,507, and D. C. Jaffna,No. 10,109, the last of which was decided in appeal on October 4,1915. In these actions the first defendant was successful.
It was urged on the authority of Kudo Banda v. Dingiri Amma*that a judgment-creditor is not concluded by an adverse judgmentagainst his debtor, and that it is open to him to show that theproperty belongs to his debtor. I am doubtful as to the soundnessof this contention. In the case of Dinendromath v. Ramkumar7 thePrivy Council judgment said :There is a great distinction between
a private sale in satisfaction of a decree and a sale in execution of adecree. Under the former a person derives title through the vendor,
* 14 N. L. B. 270.
6 Leader 95.
(1911) 14 N. L. B. 145.
L.B.l A. 65.
18Q.B. D. 451.2 4 M. dt N. 660.311 Bom. 114.
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and acquires a better title than that of the vendor. Under thelatter the purchaser, notwithstanding he acquires merely the right,title, and interest of the judgment-debtor, acquires that title byoperation of law adversely to the judgment-debtor, and freed from •all alienations and encumbranoes effected by him subsequent to theattachment of the property sold in execution. ”
1917.
Ennis j.
Pectrvpillav. Dioni
The cases of Richards v. Jenkins1 and Richards v. Johnstone2 wereboth cases in which property of goods was in question, and in boththe .point for determination was whether the claimant had anyinterest in the goods. As there had been no- valid transfer of thegoods, it was held that they did not vest in the claimant. It furtherappeared that there was at most nothing but an estoppel betweenhiin and the execution-debtor, and it was held that an estoppel ofthe kind existing in those cases did not bind the execution-creditor.In Shiv’apa' v. Dod Nagaya,3 an action lost by the judgment-creditorto which his debtor was not a party, was not res judicata as againstthe judgment-debtor, as the creditor did not represent the debtor.These cases are not, therefore, directly in point in support of theproposition.
Hukm Chand (Res Judicata 5) draws the following distinction,between res judicata and .estoppel : “ The essential features ofestoppels are those which have found formulation in section 115 ofthe Evidence Act, the provisions of which proceed upon the doctrines.of equity, that he who by his declaration, act, or omission hasinduced another to alter his position shall not be allowed to turn -round and take advantage of such alteration of that other’s position.All the other rules to be found in chapter VIII. of the Evidence Act,.relating to estoppel of tenant, or of acceptors of bills of exchange,bailees, or licensees, proceed upon the same fundamental principles.On the other hand, the rule of res judicata does not owe its originto any such principle, but is founded upon the maxim wemq debetbis vexari pro una et eadem causa—a maxim which is itself an outcomeof the wider maxim: interest republics ut sit finis litium. Theprinciple of estoppel, as I have already said, depends upon differentgrounds, and I think the framers of the Indian Codes of Procedureacted upon correct juristic classification in dealing with the subjectof res judicata as appertaining to the province of procedure- properlyso called. Perhaps the shortest way to describe the differencebetween the plea of res judicata and an estoppel is to say that, whilst,the former prohibits the Court from entering into an inquiry at allas to a matter already adjudicated upon, the latter prohibits a party,after the inquiry has already been entered upon, from provinganything which would contradict his own previous declaration oracts to the prejudice of another party, who, relying upon thosedeclarations or acts, altered his position. In other words, res118 Q.B. D. 451.2 4 M* <fc N. 660.
*11 Bom 114.
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1017,
Brans J.
PedruptUa
v.Dbntoa
judicata prohibits an. inquiry in limine t whilst an estoppel is only apiece of evidence. Further, the theory of res judicata is to presumeby a conclusive presumption that the former adjudication declaredthe truth, whilst an estoppel, to use the words of Lord Coke, is wherea man is concluded by his own act or acceptance to say the truth,which means he is not allowed in contradiction of his former selfto prove what he now chooses to call the truth. Thus, the plea ofres judicata proceeds upon grounds of public policy so called, whilstan estoppel is simply the application of equitable principles betweenman and man, two individual parties to a litigation. ”
It appears that estoppels may arise by the voluntary conduct ofa party or by operation of law, and it seem6 to me that the principlethat a judgement-creditor is not concluded by estoppels against hisdebtor applies only to estoppels which arise from conduct, and doesnot apply to an estoppel* not brought about by the voluntaryconduct of the debtor, but by an adverse 'judgment against him.A somewhat similar distinction was drawn in the case of Perera v.Perera1 between “ voluntary ” and “ necessary ” alienations ofproperty by a debtor during the pendency of a partition suit.
Had it been necessary to decide the present appeal on this pointI should have referred the case to a fuller Court, but in the presentcase the learned Judge has found that the action which led to theexecution proceedings was instituted fraudulently and collusively.This is a question of fact, with the finding of which I see no reasonto interfere, as there is evidence upon which the finding could bebased, and the case of/Don Cornelia v. Don Carolis2 is authority forthe proposition that it is open in a 247 action to impeach the decreeupon which the execution proceedings are founded.
,1 dismiss the appeal, with costs.
Appeal dismissed.
T 3
1 U N. L. R. 217.
3 6 Leader L. R. 95. .