085-NLR-NLR-V-01-RANESINHE,-Creditor-and-Appellant.-HENRY-et-al.,-Claimants-and-Respondents.pdf
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RANESINHE, Creditor and Appellant.HENRY et al., Claimants and Respondents.D. C., Guile, 2,907 (A).
1896.March 3.
Bonhkb, C.J.
Revisionary power of Supreme Court—Civil Procedure Code,!. 753—Liabilityof execution-creditor for act of Fiscal—Necessity of surrender, beforeseizure, of property pointed out by the judgment-debtor—Civil ProcedureCode,». 226.
An order of a District Court, which is wrong ex facie, may bequashed by the Supreme Court in the exercise of its revisionary power,even though no appeal may lie against such order.
An execution-creditor who did not authorise the Fiscal to seizeunder his writ certain property, which upon seizure was rightly claimedby a third party, cannot be condemned to pay the costs of the claimproceeding.
A Fiscal is not entitled to seize property pointed out by the judgment-debtor until it has been surrendered to him.
► rpHE facts of the case appear in the following judgment of theChief Justice.
De Saram appeared for appellant, and Alwia for respondents.
3rd March, 1896. Bonskr, C.J.—
This appeal should be dismissed, on the ground that no appeallies from a claim order. But Mr. De Saram, who appearedfor the creditor appellant, has asked us to take up the case inrevision, following the precedent of a case recently decided bythis Court (D. C., Jaffnj, No. 24,021, Civil Min. S. C., Oct. 10,1895). The ground on which he qgks us to exercise our revisionarypower is, that the District Judge has made an order condemninghim in costs, which order, he urges, is, on the face of theproceedings, wrong.
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1896. It appears that the judgment-creditor pointed out to the FiscalMarch 3. certain property, -which he said belonged to the execution-debtor.
Bonskb, C.J. The Fiscal, however, declined to seize this property, but seized anundivided share of a certain garden which the debtor pointed outto him as being his own,property. Mr. Alwis’s client, who claimsto be the owner of that property, at once put in her claim. Theclaim was referred by the Fiscal to the Court under section 241of the Civil Procedure Code, and at the hearing of the claim thecreditor was there represented by his proctor; the debtor wasthere represented by his proctor; and the claimant was thererepresented by his proctor.
The creditor opened the inquiry by saying that he admittedthe title of the claimant; that he never desired this property tqfbe seized; and that it was against bis wish that the property wasseized. The learned District Judge thereupon made an orderreleasing the property, but ordered the execution-creditor to paythe costs of the proceedings on the ground that the Fiscal is theagent of the execution-creditor, and that a creditor is responsiblefor whatever the Fiscal does.
That is a proposition which cannot be maintained. Mr. Alwisdid not seek to maintain it, and after the decision of this Courtin the Jaffna case I do not see how he could do so.
Therefore, in the exercise of our revisionary power, we quashthe order. There will be no costs to any party of this appeal.
I would add that Fiscals should note the words “ and surrender“ to him ” which follow the words “as may be pointed out ” insection 226 of the Civil Procedure Code. A Fiscal is not entitled toseize property merely because it is pointed out “ by the execution-“ debtor.” Before it can be seized it must be “ surrendered ”by the debtor. What that means will depend on the nature of theproperty, but in every case it must mean something more thanthe debtor pointing out the property for seizure.