105-NLR-NLR-V-01-RAMALINGAM-v.-RAGUNATHA-KURUKKAL-SAMBANTAR,-Claimant.pdf
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RAM ALIN GAM v. RAGUNATHA KURUKKAL.SAMBANTAR, Claimant.D. C., Jaffna, 24,021.
Appeal—Cotit in claim inquiry—*. 241 of the Civil Procedure Code—Revision.
When in an investigation, 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 Curiam.—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, andhad taken no part in the proceedings at the inquiry, he ought not, ifthe claim is upheld, to be condemned in the claimant’s costs.
T
HE facts of the case sufficiently appear in the judgment ofBonser, C.J.
Bawa, for plaintiff, appellant.
10th October, 1895. Bonser, C.J.—
In 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 Fiscal reportedthe matter to the Court. The Court held a summary inquiryiDto 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 fromthe record, took no part whatever in the proceedings. He doeshot appear to have called any witnesses. The District Judgeallowed the claim, but held that the judgment-creditor should paythe costs of the investigation. Against that order the judgment-creditor has appealed. It has been held that an order madeunder section 244 is not an appedable order, but that the remedyis under section 247, and if the order, either admitting or dis-allowing the claim, is not an appealable order, I fail to see howany part of that order is appealable, as, for instance, the partdealing with the costs. Therefore, in my opinion, the appeal doesnot lie. If it be the fact that the appellant neither pointed outthe land, nor took any steps in the matter, before the seizure orafter the seizure, which might be held to be a ratification of theacts of the Fiscal, and if on the inquiry he took no part in the
1896.
October 10.
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1896. proceedings, I am of opinion that he onght not to be made toOctober 10. pay costs. Therefore, the proper course ■will be to exerciseBoxskb, OJ. out powers of revision, and to send the record back to the DistrictJndge in order that he may make any remarks regarding it thathe may think proper to make, and that notice be given to all theparties who were present at that inquiry, including the Fiscaland execution-debtor, that we propose to take the matter up inrevision.
Withers, J.—I agree.
Assuming that the Court is competent to make order as tocosts 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 partiedand 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 canbe taken 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.