021-SLLR-SLLR-2005-V-2-RAZIK-vs-L.-B.-FINANCE-LTD.pdf
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Sri Lanka Law Reports
(2005) 1 Sri L R.
RAZ1Kvs
L. B. FINANCE LTDCOURT OF APPEALSOMAWANSA, J. (P/CA)
BASNAYAKE J.
A. NO. 293/04
C. COLOMBO 7871/MHPD. C. GAMPOLA/CLAIM/25DECEMBER 17, 2004
Civil Procedure Code-Sections 87 (3), 218 S241, 343, 344 Inquiry – Is theJudgement Debtor entitled to prefer a claim to the property seized in terms ofSection 241 of the Code ? –
CA
Razik vs L. B. Finance Ltd (Eric Basnayake, J. )
105
HELD:Judgement debtor is not a person who is entitled to prefer a claim to theproperty seized under Section 241.
Section 241 sets out the procedure for a third party to prefer a claim tothe property and for the Court to investigate such claim. The Judgementdebtor is not a person contemplated by Section 241.
Application for Leave to Appeal from an order of the District Court of Gampaha.
Case referred to:Ghouse vs Mercantile Credit Ltd., 1997, 2 Sri LR 127
Dushan de Alwis for Plaintiff -Respondent Respondent.
Riza Muzni for Defendant Petitioner Petitioner.
cur. adv. vult.
March 17, 2005Eric Basnayake, J.
The plaintiff-respondent-respondent (plaintiff) Instituted case No. 7871/MHP in the District Court of Colombo against the defendant-petitioner-petitioner (defendant) and two others to recover a certain sum of money.The said case was concluded exparte and a writ of execution was issued.In executing the writ the Fiscal of the District Court, Gampola seized thesaw mill and accessories belonging to the defendant. The defendantpreferred a claim before the District Court of Gampola in terms of Section241 of the Civil Procedure Code. On 25.2.2004, the day that this case wasfixed for inquiry the defendant was absent and unrepresented. Hence, hisapplication was dismissed. On 8.3.2004 the defendant field a petitiontogether with an affidavit and moved court to vacate the order of dismissalin terms of section 87 (3) of the C. P. C. The plaintiff objected to thisapplication.
After inquiry the learned District Judge Gampola dismissed theapplication of the defendant. The defendant is now moving to have theorder of the learned District Judge set aside. He is also seeking leave toappeal at the first instance. When this case was taken up for inquiry forsupport on the granting of leave, the learned counsel for both parties agreedto file written submissions.
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Sri Lanka Law Reports
(2005) 7 Sri L. R.
Section 241 of the Civil Procedure code is as follows
S.241. In the event of any claim being preferred to, or objectionoffered against the seizure or sale of, any immovable ormovable property which may have being seized in executionof a decree or under any order passed before decree, as notliable to be sold, the Fiscal or Deputy Fiscal shall, as soon asthe same is preferred or offered, as the case may be, reportthe same to the court which passed such decree or order; andthe court shall thereupon proceed in a summery manner toinvestigate such or objection with the like power as regardsthe examination of the claimant or objector, and in all otherrespects, as if he were a party to the action :
In Ghouse Vs. Mercantile Credit LimitecP the question to be decidedwas whether a judgment debtor was entitled to prefer a claim to the propertyseized in terms of section 241 of the C. P. C. His Lordship the ChiefJustice G. P. S. De Silva held that the judgement debtor is not a personwho is entitled to prefer a claim to the property seized under the provisionsof section 241 of the C. P C. and consequently the District Court had nojurisdiction to hold an inquiry. His Lordship held it is the District Court thatpassed the decree which has jurisdiction in terms of sections 343 and 344of the C. P. C.
In terms of section 218 of the Civil Procedure Code the judgementcreditor “has the power to seize, and to sell or realize in money by the
hands of the fiscal all saleable propertybelonging to the judgement
debtor or over which or the profits of which the judgement debtor has adisposing power, which he may exercise for this own benefit, and whetherthe same be held by or in the name of the judgment debtor or by anotherperson in trust for him or on his behalf
His Lordship G. P S. De Silva observed thus “it is seen that it isnecessary to safeguard the rights of a third party who owns the property orclaims an interest in the property seized. It is section 241 which sets outthe procedure for a third party to prefer a claim to the property and for thecourt to investigate such claim. The words in section 241 “and the courtshall thereupon proceed in a summary manner to investigate suchclaim objection with the like power as regard the examination ofthe claimant or objector, and in all other respects, as if he were a
CA
Chandana Hewavitharane vs.
Urban Development Authority and Another (Wimalachandra J.)
107
party to the action” are indicative of the fact that the judgment debtor isnot a person contemplated by the section”. His Lordship further observedthat “the powers of the court upon an investigation of a claim preferred interms of section 241 are set.out in sections 244 and 245 of the C. P. C.lend further support to the view that a judgement debtor is not entitled tohave recourse to section 241”.
This being an action filed by the judgment debtor under section 241therefore cannot be supported. Hence, this court is not required to go intothe merits of this case. Leave is therefore refused with costs fixed atRs. 5,000/-.
ANDREW SOMAWANSA J. -1 agree.Application dismissed.