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RAMALINGAM v. RAGUNATHA KURUKKAL.SAMBANTAR, Claimant.D.. C., Jaffna, 24,201.Appeal—Costs in claim inquiry—Sections 241, 244, and 247 of the Civil
When in an investigation, held under section 241 of the Civil ProcedureCode, into a claim in execution the Court awards costs to the successfulparty, the order as to costs is not an appealable one.
Semble, per Cubism, where, in the case of a claim to land seized inexecution, the execution-creditor had not pointed out the land forseizure or taken any steps in the matter before the seizure or after it,which might be held to be a ratification of the act of the Fiscal, and hadtaken no part in the proceedings at the inquiry, he ought not, if theclaim is upheld, to be condemned in the claimant’s cost.
HIS was an appeal from an order made under section 244 ofthe Civil Procedure Code, after an investigation held under
section 241. The facts relevant to the appeal appear in thejudgment of the Chief Justice.
Bawa, for appellant.
No appearance for respondent.
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1895 10th October, 1895. Bonser, C.J.—
October 10. jn this case the appellant was a judgment-creditor. He got anexecution against his debtor. The debtor, when the Fiscal wentto execute the writ, pointed out property as his, which belongedto a third person who claimed the property, and the Fiscalreported the matter to the Court. The Court held a summaryinquiry into the claim under section 241, after citing the judgment-creditor, the Fiscal, the judgment-debtor, and claimant to attend.The judgment-creditor attended, but, so far as we can see from therecord, took no part whatever in the proceedings. He does notappear to have called any witnesses. The District Judge allowedthe claim, but held that the judgment-creditor should pay thecosts of the investigation. Against that order the judgment-creditor has appealed.
It has been held that an order made under section 244 is not anappealable order, but that the remedy is under section 247, and ifthe order, either admitting or disallowing the claim, is not anappealable order, I fail to see how any part of that order isappealable, as, for instance, the part dealing with the costs.Therefore, in my opinion, this appeal does not lie.
If it be the fact that the appellant neither pointed out the landnor took any steps in the matter before the seizure or after theseizure, which might be held to be a ratification of the acts of theFiscal, and if on the inquiry he took no part in the proceedings,
I am of opinion that he ought not to be made to pay the costs.
Therefore the proper course will be to exercise our powers ofrevision, and to send the record back to the District Judge inorder that he may make any remarks regarding it that he maythink proper to make, and that notice be given to all the partieswho were present at that inquiry, including the Fiscal and execu-tion-debtor, that we. propose to take the matter up in revision.
I agree. Assuming that the Court is competent to make order asto costs in these claim inquiries, that must be included in theformal order drawn up by the Court at the conclusion of theinquiry, for an order, like a decree, should state by what partiesand in what proportion costs are to be paid.
That being so, as it has been held that no appeal can be takenfrom an order under this chapter, it is plain that no appeal can betaken from that part of it which awards costs.
As it appears from the presentation of the case to us that theexecution-creditor should not be made liable to pay costs of theclaim, the order should be brought up in revision after notice tothe judge and the other parties concerned.
RAMALINGAM v. RAGUNATHA KURUKKAL SAMBANTAR. Claimant