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SILVA v. GIMARAH.C.R., Galle. 2,466.
Postilion suit—Ordinance No. 10 of 1S6S, s. 17—Alienation of land during
pendenci/ of partition suit—Validity of deed.
A partition suit was commenced on 13th November, 1900, and apreliminary decree entered on 28th August. 1901, declaring that A ami£ were entitled to one-third of the land, and they do pay to theplaintiff Es. 89 as costs. Thereafter., on the 17th September. 1901. Aand B passed a deed of conveyance, as regards their one-third' share•of the land to C. The plaintiff cansed the Fiscal to seize the one-thirdshare and levy out of it his costs. C claimed the said share as his.
In an action brought by the plaintiff against A. B. and- C to have the•deed declared null and void;—
Held, per Layard, C.J.. Jhat the judgment of the Full Bench inAnnCmalai Pillai v. Perera (6 N. R. 108), which was binding uponhim in the decision of the present case, is questionable, as it did notappear to be fully argued whether* there ' was privity of contractbetween a purchaser at a sale in execution and Jhe judgment-delatorwhose property was sold, nor was the question raised whether apurchaser in execution was or was not in the’position of a person whotook a conveyance from the execution-debtor, tie ownef.
HE plaintiff prayed that a de«d executed by the first and thesecond defendants in favour, of the 'third defendant conveying
to him certain shares of land be declared null and void, and that
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1908. the said shares be decreed liable to be sold in execution of a writAugust 6. issued by the plaintiff in case No. 6,006 in the District Court of—Galle. The plaintiff alleged that that was a partition suit in which
a preliminary decree had been entered in favour of the firstand second defendants declaring them entitled to two-sixth parts. the land; that by the same decree the first and second defendants'were ordered to pay to the plaintiff Us. 89.15 as costs; that theplaintiff obtained a writ of execution against the first and seconddefendants to recover the said cost, and pointed out to the Fiscaltheir said shares for seizure; and that the third defendantunlawfully claimed them, and his claim was allowed.
The Commissioner (Mr. J. D. Mason) found that the partitionsuit No. 6,006 was commenced on the 13th November, 1900; thatthe preliminary decree therein was entered on the 28th August,1901; and that the first and second defendants’ conveyance tothe third defendant was dated 17th September,' 1901. He held—
“ This transfer after commencement of legal proceedings topartition the land is void under section 17 of Ordinance No. 10 of1863 (see Annamalai Pillai v. Perera, 6 N. L. R. 108). I decreethat the deed executed by them in favour of the third defendantwas void, and that the two sixth shares of Mahagedarawatta andof the houses thereon are liable to be sold in execution in caseD. C., Galle, 6.006, in accordance with section 16 of the PartitionOrdinance. ”
The third defendant appealed. The case was argued beforeLayard, C.J., on the 17th June, 1903.
Van Langenberg, for appellant.
Samarawikrama, for plaintiff, respondent.
Cur. adv. vult.
5th August, 1903. Layard. C.J.—
By a preliminary decree in a partition suit instituted by theplaintiff in the District Court of Galle, entered on the 28th August,1901, first and second defendants were decreed entitled to two-sixths of certain property, the subject of that suit, and for ac^rtaim house thereon. and they were decreed to pay plaintiff’scost amountingrto Rs. -89.15.
In pursuance of# that ^decree plaintiff issued writ of executionto recover the costs, and pointed out the shares of the land and ofthe house decreed to the first and second defendants in the above-mentioned decree for seizure under such (writ. The Fiscal dulyseized the same, and the third defendant claimed the property
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seized, having purchased the same from the first and second defen-dants after the commencement of the action above-mentioned, andhis claim was allowed. Plaintiff then brought this action to havethe deed in favour of the third defendant declared void and of noeffect, and prayed that the -shares of the said land and of the saidhouse be declared liable to be sold in execution* under the writabove-mentioned. The Commissioner has declared the deed infavour of the third defendant void, and the shares of the land andof the house thereon liable to be sold in execution of the writissued in the partition suit. The third defendant has appealed.
I understand the appellant’s counsel to admit that, in view ofthe judgment of the Full Court in the case Annamalai Pillai v.Perera (6 N. L. R. 10S), he cannot contend that the deed infavour of the third defendant "is valid, it having been executed byfirst and second defendants after the institution of the partitionsuit, but he points out that by that judgment it was also held by thiscourt that a Fiscal’s sale of an undivided portion of a land, whilstthat land is the subject of a partition suit, is also invalid.
Respondent’s counsel contends that section 17 of the PartitionOrdinance does not apply to Fiscal’s sales; it only prohibits thealienation by an owner of his undivided share during the pendencyof the partition suit in respect of the land, and declares any suchalienation void. He argues that there is no privity between apurchaser at a sale in execution of a decree and the judgment-debtor, whose property is sold, and that a person who purchasesat the execution sale is not in the position of a person who takesa conveyance from the execution-debtor, the owner. I cannotfind that this point was raised or properly argued . before thiscourt in the appeal in the cases above-mentioned, nor does theattention of the Judges, who took part in that decision, appear tohave been invited to the following cases. It was held in thecase of Prosser v. Gwillim (1 G. & K., p. 95), where a witnesswas called to prove a statement made by the execution-debtorbefore the property was seized under the writ of the execution-creditor by the Sheriff, that* the evidence was inadmissible, as theexecution-creditor does not claim the goods under the execution-debtor, but adversely to him. Again, in the case of Richards v.Johnston (4 H. & N. 660) Pollock, C. B., and throe other Judges ofthe Court of Exchequer, decided that a Sheriff who came to Seizethe goods of a debtor armed with a writ of execution in favour ofa creditor is not bound by estoppels which might have preventedthe debtor himself from * claiming, the goods, the judgment-creditorbeing no party or privy to the acts of 'the judgment-debtor. TheIndian Courts appear 'also to have held that a purchaser at a sale
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in execution of a decree is in a different position to a purchaserfrom the execution-debtor himself, and acquires the title of thejudgment-debtor, not through the judgment-debtor, but byoperation of law and adversely to him (Basin' Chinnier Sen v.Enayet Ali, I. L. Ii. 20, Cal. 236, and Lalla Parbhu Lai v. Mylne,
L. li. 14, Cal. 413). In a Privy Council case (Anundo Mayee v.Dhonendro Chvnder, 14 Moo. 1. A. 101) quoted in ffufem. Chand'streatise on the Law <>f Res Judicata,- p. 204, Lord Justice James isreported to have said:—“ Their Lordships think that the title of apurchaser under a judgment decree cannot be put on the samefooting as the title of a mortgagor or of a person claiming under,a voluntary alienation from the mortgagor I have not beenable to refer to the Privy Council judgment itself; the passage Iquote above is taken from Hukm ( hand’s book, as well as thefollowing quotation from a portion of Sir Barnes Peacock’sjudgment in delivering the judgment of the Privy Councilin the case of Dinendromath v. llamkumar (L. R. I. A. 65): —
" There is a great distinction between a private sale in satisfactionof a decree and a sale in execution of a decree. Under the formerthe purchaser derives title through the vendor, and cannot acquirea better title than that of the vendor. Under the latter thepurchaser, notwithstading he acquires merely the right, title,and interest of the judgment-debtor, acquires that title byoperation of law adversely to the judgment-debtor, and freed fromall alienations or encumbrances effected by him subsequent to theattachment of the property sold in execution ”. The purchaser atan execution sale not being the representative of the judgment-debtor, and not deriving title from him, but adversely to him, itappears to me doubtful as to whether a purchase at an executionsale is void under the provisions of section 17 of the PartitionOrdinance, which only seem to refer to the voluntary alienationof an undivided share by a co-owner during the pendency of apartition suit in respect of the land in which he is entitled to suchshare. I am, however, bound by the judgment of the Full Courtin Annamalai Pillai v. Perera above-ipentioned, and cannot allowany doubts I may have as to whether section 17 of the PartitionOrdinance renders void a sale by a Fiscal under the circumstancesmqntionfcd in thp case then under the consideration of the FullCourt to affect ®my decision in the case now under my considera-tion. Fjven, however, 'following that judgment, there is nothingrepugnant in it to &e judgment of the Commissioner in this case.He merely declares the deed in favour of'the third defendant void,which is in consonance with that judgment, and the propertyliable to seizure under the plaintiff’s writ. He does not- order the
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sale to be at once carried into effect, or say that if a sale does takeplace under the writ before the final partition decree is entered,such a sale would be good. The plaintiff, in view of the judgmentof the Full Court, would be possibly well advised in not further atonce enforcing his writ and carrying out the sale of the propertyseized, but waiting until the final decree is entered up.
1 would dismiss the third defendant’s appeal with, costs.
SILVA v. GIMARAH