SADRIS APPU et al. v. CORNELIS APPU et al

076-NLR-NLR-V-08-SADRIS-APPU-et-al.-v.-CORNELIS-APPU-et-al.pdf


( 380 )
1905.
October 12.
SADRIS APPU et al. v. CORNELIS APPU et al.D. C. GaUe, 7,096.
Estoppel—Judgment-creditorallowing his own property to be sold as
. property of hisjudgment-debtor—EnglishLaw—“ Intentionally ”
—Evidence Act, section 115.
Some of theplaintiffsinthiscase were theexecution-creditors,
and the first defendantwas theexecution-debtorin anothercase.
On a writissuedagainsthim by his execution-creditors inthe
other case the firstdefendantpointed . out for seizure and sale bythe
Fiscal a landbelongingtotheexecution-creditorsthemselves.The
execution-creditorsdid notobject tothe sale, but allowed it .topro-
ceed, and the property was purchased by the second defendant atthe Fiscal's sale, and he sold it to the first defendant. In an actionby the plaintiffs against the defendants to vindicate the said land—
Held (affirming the judgment of the DistrictJudge), that the
plaintiffs who were execution-creditors in the previous action wereestopped bytheirconductfrom showing that the property,at
the date ofsale, was .theirproperty and not the. property of their
judgment-debtor, the first defendant.
Layard, G.J.—Section 115 of “ The Evidence Act *’ enacts thesame law as the English law on the subject of estoppel.~
^ PPEAL from a judgment of the District Judge of Galle.
Some of the plaintiffs in this case were the execution-creditors,and the first defendant the execution-debtor in another case. Whenwrit issued at th& instance of the execution-creditors in that case thejudgment-debtor pointed out to the Fiscal for seizure and sale a landbelonging to the execution-creditors, who allowed the sale to proceedwithout any objection, and the property was purchased by the seconddefendant, who sold jt to the first defendant. The plaintiffs institu-ted this action against the defendants to vindicate the land sold bythe Fiscal. The District Judge held that as many of the plaintiffsas were execution-creditors in the previous action, were estopped bytheir conduct from claiming their shares in the land. The plaintiffsappealed.
H. J. G. Pereira, for plaintiffs, appellants •
H. A. Jayewardenefior defendants, respondents.
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12th October, 1905, • Layaed, C.J.—
The plaintiffs, twenty-nine in number, who are co-owners, insti-tuted this action to recover the land claimed in the plaint, and theDistrict Judge on the 29th day of March, 1905, gave judgmentfor plaintiffs, excepting the shares claimed by the appellants, the first,third, eleventh, sixteenth, and eighteenth plaintiffs, and the firstdefendant was decreed entitled to these shares. The.District Judgehas decided that the first defendant surrendered for seizure and saleunder a writ issued against him at the instance of the appellants theland claimed by the plaintiffs in this suit, although the first defendanthad no title to the same, it being the property of the plaintiffs.The land was sold under the appellants’ writ, and at the Fiscal'ssale was purchased by the second defendant, who subsequently soldit to first defendant. The District Judge has held that the appellantscannot now claim their interest in the land sold under the writ,as the said was confirmed by the Court and is therefore bindingon the appellants, who were parties to the suit under which theexecution issued. The respondents’ counsel supports the judgmentof the District Judge on the broad principle that the appellants haveby their act in allowing the property to be sold under their writ, and■ by their omission in not staying the sale under their writ, caused orpermitted the purchaser at such sale to believe that the property wasnot the appellants’ property, and to act upon such-, belief, and thatthey cannot be allowed, in this suit between themselves arid thepurchaser at the Fiscal’s sale and his vendee, to say that the propertyis their property and not the property of their execution-debtor, thefirst defendant.
It is clear that the appellants have been benefited by the trans-action, because the amount due to them under their writ has beenreduced by the proceeds realized by the Fiscal's sale. Theappellants’ counsel, however, argues that they have not drawn themoney out of Court, but left it in Court standing to their credit.Even then they alone can draw that money, as the Fiscal’s sale hasnever been set aside and is still subsisting, and was in force at thedate of the bringing of this action.
It is a principle of natural equity that when A allows another tohold himself out as the owner of A’s piroperty and a third person pur-chases it for value from the apparent owner in the belief that he is the-real owner, A shall not be permitted to recover unless he can provethat the-purchaser had direct notice of the real title, or that there ex-isted circumstances which ought to have put him on inquirywhich, if pursued, would have led to a discovery of it. This hasbeen enunciated by the Judicial Committee df the Privy .Council.
1005..October 12
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1906. Applying the same principle to this case, it appears to me clear thatOctober 12. the appellants, who actually permitted their own property to be seizedIatabd, C. J* and sold under their own writ, over which writ they had absolutecontrol, as the property of the first defendant, cannot be allowed nowto say against the purchaser, the second defendant, or his vendee,the first defendant, that the property seized and sold under theirwrit was their property and not the property of the first defendant.There is absolutely nothing to show that the second defendanthad direct or constructive notice that the property sold was notthat of the first defendant, or that there existed circumstanceswhich ought to have put him on. his inquiry. Why should a pur-chaser at a Fiscal’s sale suspect that the property seized under anexecution-creditor’s writ is the execution-creditor's property and notthat of his debtor? It would never enter into the head of anyreasonable man to think that an execution-creditor would allow hisjudgment-debt to be levied out of his own property instead of hisexecution-debtor’s.
It appears to me that this is clearly a case of estoppel, which is de-fined in our Evidence Ordinance (section 115) thus: ” when one person. has by his declaration act, or omission intentionally caused or permit-ted another person to believe a thing to be true and to act uponsuch belief, neither he nor his representative 6hall be allowed in any .suit or proceeding between himself and such person or his representa-tive to deny the truth of that thing.” The appellants.’ counsel arguesthat the word V intentionally,” as used in our Evidence Ordinance,makes it incumbent on the person setting up the estoppel to proveactual intention on the part of the person to make the other personbelieve a thing to be true and to act upon such belief. Bespond-ents’ counsel refers us to a Privy Council case in which the similarsection of the Indian Evidence Act was discussed (/. L# R. 20, Cal.,291), and in which the Judicial Committee held that the word“ intentionally ” was rightly inserted in the section, and made nodifference in the law of estoppel as it exists in England at this day.In this particular case there can be no doubt that the appellantsintentionally permitted the sale to proceed. The first plaintiff wasaware before the sale that his own property was seized and wasadvertised for sale. He ought at once to have told the Fiscal to staythe sale and withdrawn his writ and that of the other appellants.It appears to me they are all bound by the notice to the firstappellant, and they cannot be said to have not permitted their landto be sold under their own writ as the property of the first defendant.The writ was entirely under their control, and they could withdraw itat any time. The Fiscal was their agent in carrying out execution,
( 383 )
and they are bound by his act in holding out their property to the 18U 'purchasers as the property of their execution-debtor, and they °cta*>ercannot shirk responsibility by saying (hey allowed their agent to Layabd,C.J.act without any supervision on their part.
The appellants* counsel has invited our attention to rulings of thisCourt, in which it has been held that sale of property of a per-son other than the execution-debtor under a writ of execution doesnot prevent such person from claiming, his own property, and thatno estoppel arises by reason of such person not having claimed hisproperty before such sale. That case differs entirely from this.
Here the execution-creditors stand by and allow their own propertyto be sold as that of another under a writ of execution over whichthey undoubtedly have • control, and they allow by their act in sell-ing such property through the Fiscal, and by permitting such saleto go on, the purchaser at such sale to believe that the propertysold is not theirs, but that of their execution-debtor. Equitydemands that under suph circumstances they should not be allowedto deny that the property was not that of their execution-debtor,but their own property. I think for the above reasons the appealshould be dismissed with costs.
Wendt, J., agreed.
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