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Present: De Sampayo J.
POOCHY v. WALLOOPILLAI.
154—0. R. Ratnapura, 15,414.
Seizure in execution—Claim upheld—Alienation by claimant—Subse-quent seizure under same writ^-Fis cal's sate—Res judicata.
Under a writ theentirety of aland was seized.V claimed a
half share, and theclaim was upheld in1915. In1916V sold
the half share to plaintiff. The other half share was sold underthe writ and purchased by a thirdparty.In 1917theexecution*'
creditor again seized V's half Bhare under the same writ, and thedefendant purchased it at the Fiscal's sale.
Held, that the defendant was not bound by the order in V’s favour at theclaim inquiry of 1915.
“ Purchaser at anexecution saleis notprivy totheexecution-
creditor or to the letsecution-debtpr. E'yen if the defendant isconsidered in the same position as the execution-debtors, it isquite clear ' that theexecution-debtorswere notbound bythe
order on the claim,although, according to thepractice ofour
Court's, execution-debtorsare noticed as regardsthe inquiryinto
any claim. n
i-JiHE facts appear from the judgment.
Samarawickreme (withhim R. L.Pereira)for defendant,
appellant.—The defendant is not bound by the order in the claiminquiry of 1915.“ There is no privity between a purchaser at a
sale in execution of a decree and the judgment-debtor whoseproperty is sold. ’’ Hakm Chand on Res judicata (1894 edition)204.
El 0. P. Jayatvleke, for plaintiff, respondent.—The Fiscal’s saleas Regards Valliamma’s half share is a nullity. The Court hadalready made cm order declaring that the judgment-debtor had nosaleable .^interest therein. The Fiscal, when he seized the land in1917. must have been aware of the previous claim by Valliamma
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and tiie order in her favour. Under these circumstances theFiscal’s sale would be void and no title would pass to thepurchaser. Qordion Appuhamy v. Maria Culas. 1
December 1, 1919. Db Sahpayo J.—
This appeal involves a point of law on the following state of facts.In the action No. 18,058 of the Court of Bequests of Batnapura,one Samuel, Head Kang any, obtained a judgment for moneyagainst two persons named Karuppen and Weeramma. Underexecution issued in that case the entirety of a land called Polwatta-gederahena was seized by the Fiscal in December, 1918, whereuponone Valliamma claimed an undivided half share of the land, andan order was made in her 'favour on December 15, 1915. By deeddated January 16, 1916, Valliamma sold a'half share to the presentplaintiff. The other half share was sold under the writ and purchasedby a third party. Then the execution-creditor issued writ againand seized a half share of the land on November 30, 1917, when thedefendant became purchaser. In the circumstances it has beenassumed, and I -think rightly, that the half share which was soldand purchased by the defendant was the half share which Valliammahad claimed and had been allowed to her by the order of December,1915. This case, although at its origin it purported to be an actionunder section 247 of the Civil Procedure Code, was ultimately con-sidered an ordinary action for title. The question then was whethertiie plaintiff had title to the half share as against the defendant.This undoubtedly would have depended on proof of facts onwhich either side relied, but the case has been determined on a pointof law. The Commissioner of Bequests considered that the defend-ant was bound by the order of December, 1915, on the claim ofValliamma. I do not think the learned Commissioner was right onthis point. The order on the claim was no doubt conclusiveas between the execution-creditors and the claimant Valliamma,and consequently if, when the same share was seized again. Valli-amma or a person claiming under her put in a claim, the execution-creditors would have been met by the plea of res judicata, and theshare would have been ordered to be released from seizure. Butthe defendant, who is only a purchaser at an execution sale, is notin the position of the' execution-creditor, nor, .so far as the presentquestion is concerned, in the position of the execution-debtors.Mr. Samarawickreme has referred me to Hakm Chand on res judicataat page 204 as regards the -principle applicable to such a case, andI think, even apart from authority, it is quite clear that a purchaserat an execution sale is not privy to the execution-creditor or theexecution-debtor. Even if the defendant is considered in the sameposition as the execution-debtors, it is quite clear that the execution-debtors were not bound by the order on the claim, although,
1 (1902) 6 N. L. R. 279.
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according to the practice of our Courts, execution-debtors arenoticed as regards the inquiry into any claim. Consequently thedefendant who purchased against the execution-debtors in this caseunder writ issued against them is no more bound than they them-selves. Mr. Jayatileke, for the plaintiff, admits that th^re is nores judicata in the case as the learned Commissioner appeared tooonsider, but he strongly urged that the Fiscal’s sale at which thedefendant purchased was a nullity, on the ground that the Fiscal,who had or ought to have had notice of the fact that Yalliamma'sclaim had been allowed, had no right to sell the share in questionagain under the writ issued a second time. I eannot agree withhis contention. The Fiscal is not bound to make inquiries of thatkind. He has got only to obey the order of the Court issued to himby means of the writ of execution. He has no right to decidequestions of title, and even if he had such a right, the purchaser isnot subject to any infirmity on account of the default or mistakeof the Fiscal.
I set aside the judgment appealed from, and send the case backfor inquiry and determination on the question of title, apart fromthe claim order of 1915. The defendant, I think, is entitled to thecosts of the appeal.
POOCHY v. WALLOOPILLAI