073-NLR-NLR-V-60-SELLAMMAH-Appellant-and-THE-ATTORNEYGENERAL-Respondent.pdf
291
' WEER&SOORIYA, J.—Sellammah «. Attorney-General
Present: Weerasooriya, J., and K. D„ de Silva, J.SELLAMMAH, Appellant, and THE ATTORNEY-GENERAL,
Respondent
8. C. 643—D. C. BatHcaloa, 1,491 /Misc.
•
Crown Debtors Ordinance (Cap. 81.)—Sequestration of property said to belong to judg-ment debtor—Claim made by third party—Procedure applicable to investigationthereof—Sections 2, 3, 8—Civil Procedure Code, ss. 244-247), 658, 659—Interpretation Ordinance (Cap. 2), s. 13..
Seotiops'658 and 059 of the Civil Procedure Code are applicable to the investi-gation of claims to property which has been sequestered under section 3 of theCrown Debtors Ordinance upon warrant issued after judgment.
^_PPEAL from a judgment of the District Court, Batticaloa.
H. W. Jayetmrdene, -Q.C., wth E. R. 8. R. Coomaraswamy, for theclaimant-appellant.
O
A. C. Alles, Acting Solicitor-General, with P. Naguleswaram, CrowiCounsel, for the plaintiff-respondent.
Cur. adv. mlt.
August 26,1958. Weerasooriya, J.—
The-Attorney-General on behalf oi the Crown sued oneSinnan Sitham-. parapillai, the husband of the appellant, in the District Court of Battica-. loa on two causes of action and obtained decree against him on the 28th. July,. 1955, for the payment of a sum of Rs. 36,785/83 together withinterest and costs of suit.' .
, . Sithamparapillai (hereinafter referred to as the “ judgment-debtor ”)' had purchased from the Crown the exclusive privilege of selling fermentedtoddy by retail at two groups of taverns for the period 1st July, 1953,to the 30th June, 1954, and in terms of the two contracts enteredinto■f by him in pursuance of the purchase hebecame liable to pay tothe Crownthe rents due thereon in monthly instalments of Rs. 4,000 and Rs. 15,400respectively. According to. the plaint he paid the instalments for the‘ months of. July to Noyemb^r, 1953, on both contracts but defaulted in the
292WEERASOORIYA, J.—Sellammah v. Aftomey-Qeneral
payment of the subsequent instalments, and the two causes of actionarose from this default and. from the consequential steps taken by theCrown under the toddy rent sale conditions applicable to the two con-tracts. That the judgment-debtor paid the two instalments for Novem-ber, 1953, also appears from the receipts P3 and P4, both dated the 11thNovember, 1953.
• As the decree obtained by the Crown remained unsatisfied steps weretaken under section 2 of the Crown Debtors Ordinance (Cap. 81) for theseizure of six allotments of land said to be the property of the judgment-debtor. The seizure was followed by an information filed under section 3on the 6th December, 1955, against the judgment-debtor, and upon thatinformation the District Court issued under the same section a warrantto the Fiscal to sequester the said lands. The sequestration having beencarried out, the appellant on the 30th January, 1956, laid claim to thelands as the person entitled thereto on deed of donation No. 668 dated.'the 20th December, 1953, from her father. This claim was reportedby tire Fiscal to the District Court which then proceeded to inquireinto it.•.*H
At the inquiry the notary who attested deed No. 668 gave evidencefor the appellant and produced it marked P2. He also produced anearlier deed No. 609 dated the 9th November, 1953, marked PI andattested by him, on which the same six lands had been Bold by the judg-ment-debtor to the father of the appellant for a sum of Rs. 20,000. Piis impugned by the Grown as void under section 8 of the Crown DebtorsOrdinance on the ground that it was fraudulently executed. Accordingto the attestation in PI the full consideration passed in the notary’spresence, and this was confirmed by the notary when he gave evidence.Another witness who gave evidence for the appellant was ProctorStephens, who is an official valuer for the National Housing Scheme, theState Mortgage Bank and the Agricultural and Credit Corporation. Inhis opinion the value of the lands at the date of the execution of PI wasabout Rs. 22,000.
After inquiry the learned District Judge, in a judgment which is ofvery little assistance to this Court, made order dismissing the claim withcosts “ to abide a 247 action if any ”. He seems to have regarded theclaim as one to which sections 244 to 247 of the Civil Procedure Codeapplied, and he held that as the claimant had not proved that she was inpossession of the lands her claim must be dismissed. From that orderthe present appeal has been filed by her. We were informed by herCounsel that she has also filed a separate action under section 247 of theCivil Procedure Code which is pending.
One of the questions that arise in the appeal is the procedure applicableto the investigation bf claims to property which has been sequesteredunder section 3 of the Crown Debtors Ordinance. Learned Counsel forthe appellant submitted that the procedure governing the case is thatlaid down in sections 658 and 659 of the Civil Procedure Code. For thissubmission he relied on Tie Government Agent, Southern Province v.Kalupahana1.'
1 (1923) 25 N. L. R. IS.
WEEHAS0OBI YA, J.—Sellammah v. Attorney-General293
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Section 3 of the Crown Debtors Ordinance provides that any furtherproceedings taken consequent on the issue of a warrant of sequestration“ shall be according to such general rules of practice as now are or here-after may be framed by the Judges of the Supreme Court In The-Oovemment Agent, Southern Province v. Kalwpahana (supra) Jayewar-dene, J., stated that there were in operation at the date of the enact'ment of the Crown Debtors Ordinance, No. 14 of 1843, (which was itsoriginal short title) certain general rules and orders framed by the Judgesof the Supreme Court which were subsequently superseded by the CivilProcedure Code. He therefore held that sections 658 and 659 of theCivil Procedure Code applied to claims made to property sequesteredunder section 3 of the Crown Debtors Ordinance. I take it that he cameto this conclusion on the basis that sections 658 and 659 of the CivilProcedure Code are the provisions corresponding to such of the rules andorders relating to sequestration of property which had been revoked bythe Civil Procedure Code. See also section 13 of the InterpretationOrdinance.
Sections 658 and 659 occur in a chapter of the Civil Procedure Codeentitled “OF ARREST AND SEQUESTRATION BEFORE JUDG-MENT ”. Section 658 refers to claims to property sequestered beforejudgment, while section 659 provides that if upon an investigation intosuch a claim the Court is satisfied that the property sequestered was notthe property of the defendant it shall pass an order relenting such property,from seizure. Neither Counsel for the appellant nor the Acting Solicitor-
General was able to refer us to any provisions in the Civil ProcedureCode specially providing for sequestration of property after judgment.Apparently there are no such provisions.
It would seem that under section 3 of the Crown Debtors Ordinancea warrant of sequestration may issue before as well as after judgment.The learned Acting Solicitor-General contended that in The GovernmentAgent, Southern Province, v. Kalwpahana (supra) the warrant of seques-tration had issued before judgment and that, therefore, sections 658 and659 were rightly held to be. applicable to the investigation of the claimto the property sequestered. But inasmuch as in the present case thewarrant of sequestration issued after judgment, he submitted that theprovisions applicable to. the investigation of the appellant's claim aresections 244 to 247 of the Code (which deal with claims tp property seizedin execution of a money decree) and not sections 658 and 659, Apart,l however, from stressing that in the present case the sequestration took ■place after judgment he was unable to formulate any principle on whichthe distinction he seeks to draw as to. the procedure to be followed canbe based.
In The Attorney-General v. De Croos * too the sequestration took placeafter judgment but the particular point under consideration did not arisefor deoision. If, as is common ground, sections 658 and 659 of the CivilProcedure Code apply to the investigation of claims to property seques-tered before judgment under section 3 of the Crown Debtors Ordinance,
I dp'not see why the investigation of claims to property sequestered after51 (1925) 26 N. L. R. 451.
7 2*^-7j.N. R 1094(3/69)
Atiomey-General v. Amaradasa
judgment should not be governed by the same provisions.. .1 hold,therefore, that sections 658 and 659 apply to the present case. No doubt,section 658 requires that a claim preferred to the property sequesteredshall be investigated in the manner provided for the investigation of claimsto property seized in execution of a decree for money, but even so theapplicability of section 659 is in no wise affected. Section 659 clearlycasts a duty bn the Court to investigate the question of title. The evi-dence led at the inquiry on behalf of the appellant establishes that farfrom PI having been executed in fraud of the Crown it was a bona fidetransfer for valuable consideration practically the entirety of which wasutilised by the judgment-debtor to pay the instalments of rent for Novem-ber, 1953, then due to the Crown. This much was freely conceded by thelearned Acting.Solicitor-General. The question of title under section659 of the Civil Procedure Code must, therefore, be decided in favour ofthe appellant and her claim upheld. I accordingly set aside the orderappealed from and direct that the property claimed be released fromsequestration. The appellant will be entitled to her costs in both Courts.
db Silva, J.—I agree.
Appeal allowed.