SWAN J.—Suppiah v. Stvarajah
1953Present : Rose C.J. and Swan J.S. A. SUPPIAH, Appellant, and R. SIVARAJAH el al.,Respondents
S. G. (Inly.) 108-109—D. C. Nuwara Eliya, 2,995 and 2,996
Civil Procedure Code—Execution of money decree—Judgment-debtor’s right in a pendingaction—Liability to seizure and sale—Section 218.
The right, title and interest of a person in a pending action can bo seized andsold under section 218 of the Civil Procedure Code in execution of a decreeentered against him.
Appeals from two orders of the District Court, Nuwara Eliya.
E. B. Wikramanayake, Q.C., with D. J. Tampoe, for the appellant(1st defendant in 2,995 and 2nd defendant in 2,996).
P. Somatilakam, with S. Sharvananda, for both respondents.
Cur. adv. vult.
January 27, 1953. Swan J.—
It was agreed that these two appeals should be consolidated. The 1strespondent is the execution-creditor in case No. 2,995 in which he hadobtained judgment against the appellant and certain others for the recoveryof Rs. 8,000 interest and costs. The 2nd respondent is the execution-creditor in case No. 2,996 in which he had obtained judgment against theappellant and certain others for the recovery of Rs. 1,845, interest and costs.On their respective writs the respondents seized the right, title and interestof the appellant in Case No. 3,181 D.C. Nuwara Eliya, in which the appel-lant Bought to obtain a declaration against the persons he sued that he wasentitled to a one-fourth share of the Tivoli Theatre with its plant andmachinery, and asked for an accounting of his share of the prohts. In
SWAM' J.—Suppiah v. Sivarajah
one case the seizure was made as though the property seized was movable,in the other on the basis that it was immovable. I am of the opinion thatit was movable property ; but the mode of seizure is immaterial. Thefact that it was seized as immovable property, which mode of seizure isthe more elaborate, does not invalidate the seizure. It certainly does notaffect the question at issue which is whether the property was liable toseizure. Mr. Wikramanayake also contended that the seizure was badbecause it was a re-issue of the writs, and no notice was served on theappellant as required by Section 349 of the Civil Procedure Code. Thatpoint seems to have been abandoned in the lower Court. In any eventI would follow the ruling in Silva v. Kavanihamy1 and hold that failure toserve notice was only an irregularity that would not invalidate the seizure.The only substantial objection that the appellant could have taken wouldhave been that on the previous levy the respondents had failed to exercisedue diligence to procure complete satisfaction of their decrees. Suchfailure was not even suggested in the Court below or before ub.
I shall now deal with the main point taken by Mr. Wikramanayake—Was the appellant’s right, title and interest in D. C. 3,181 seizable 1 Section218 of the Civil Procedure Code states that the judgment-creditor “ hasthe power to seize and sell, or realize in money all saleable propertymovable or immovable belonging to the judgment-debtor, or over whichhe has a disposing power which he may exercise for this own benefit,whether the same be held by or in the name of the judgment-debtor, or byanother person in trust for him or on his behalf ”.
The >Section then proceeds to state what property is not liable to seizureor sale. The property seized in these cases does not come under any itemof exceptod property. But Mr. Wikramanayake contends that it is notliable to seizure and sale. The simple question is whether it is propertyover which the judgment-debtor has a disposing power. I wouldunhesitatingly answer that question in the affirmative. .
Voet 18.4.9 (see Berwick pages 79 and 96) says that a right of actionmay be sold not only with the consent of the debtor but against his will andin spite of his "“resistance …. whether the right of action beabsolute, or due at a future date, or suspended by a condition. In PleasPol v. de Soysa 2 it was held that the right of a person in a pendingaction is assignable. I do not think anybody could challenge the pro-position that what is assignable is also saleable. In Powell v. Perera 3it was held that a party’s rights in a pending action could be seized andsold against him. In that case it was sought to distinguish Pless Pol v.de Soyza * but Garvin J. brushed aside that. contention remarking :—“ That a debt is saleable within the meaning of section 218 of the CivilProcedure Code is beyond all question and I am unable to see that itceases to be saleable immediately an action is instituted for its recovery."
I would dismiss the appeals with costs.
Bose C.J.—I agree. 1
1 (1948) SO N. L. R. 52..*
» (1927) PO. L. Ree. SO.
Appeals dismissed.(1907) 10 N. L. R. 252.
S. A. SUPPIAH , Appellant , and R. SIVARAJAH et al , Respondents