011-NLR-NLR-V-10-SILVA-v.-IBRAHIM-RAWTER-et-al.pdf
( 56 )
1906.
December 13.
[Full Bench.]
Present: Sir Joseph T. Hutchinson, Mr. Justice Wendt, andMr. Justice Middleton.
SILVA t>. IBBAHIM BAWTEB et aL – .
D.C., Kandy, 17,281.
Actionunder s. 247—Movable property—Sale of the property before
action—Maintainability ofaction—Civil ProcedureCode, ss. 2*27,
240, 241, 242, and 245.
•
An unsuccessful claimant is entitled to maintain an action undersection 247 of the Civil Procedure Code,, notwithstanding the factthat at the date of such action the property, which is the subjectof seizure and' claim, has already, been sold by the Fiscal underthe execution-creditor’s writ.
.The Fiscal has no power to stay execution of a writ withoutan order of Court to that effect; he is not bou&d to stay a salewhenever a claim is made to property seized in execution.
T
HE plaintiff, claiming to be the owner of certain movableproperty, alleged that the Fiscal,’ at the instance of the defen-
dants, seized the same on 8th April, 1905, under writ in D. C.,Kandy, 16,672, against one James Peter; that he (plaintiff) preferreda claim on 11th April, 1905, which was rejected by the Court on10th June, 1905; and the plaintiff prayed that the goods be declarednot liable to seizure and sale under the said writ. The defendantspleaded, nnter alia, that it was not competent for the plaintiff tomaintain the action, as the property, which was the subject ofseizure and claim, was sold by the Fiscal on 19th April, 1905, prior •to the investigation of the plaintiff’s claim by the Court.
( 51 )
On this point the District Judge (J. H. de Saram, Esq.) held asfollows: —
" The next objection is that this action cannot be maintained,because the property was sold by the Fiscal after the plaintiffpreferred his claim, and before the claim was investigated.
" Mr. LaBrooy, citing James & Go. v. Natchiappen (1), arguedthat the plaintiff (claimant) having failed to apply to the Courtto stay the sale pending the investigation of his claim, and theFiscal having sold the property before the investigation of theclaim, this action cannot be maintained.
" When the claim was before me, I treated the sale as a nullity,and after hearing the evidence disallowed the claim.
“ In Avitchi Ghetty v. Ibrahim Natchia (2), which was a case inwhich, in spite of the reference to the Court of a claim to propertyseized in execution the Fiscal proceeded to a sale, Bonser C.J.remarked: ‘ I do not understand how it was that the Fiscal pro-ceeded with the sale, having received a claim which he had referredto the Court. It seems to me quite clear that his duty was to stayhis hand until it had been decided by the Court whether the signaturewas legal or not. * Moncreiff J. took the same view in GordionAppukamy v. Maria Culas (3). It was following the decisionin that case—that a Fiscal’s sale held without excuse or authoritydoes not pass title to the purchaser, but is a nullity—that I pro-ceeded to make an order on the plaintiff’s claim.
“I do not know why the Fiscal proceeded to a sale after theclaim 'was preferred. It may be because his fee for staying the* sale had not been paid.
“ The invariable rule in this Court is for a claimant, if the saleof the property he claims is fixed, to move that it be stayed pendingthe investigation of the claim. The motion is always allowed, andthe claimant ordered, in the first instance, to pay the Fiscal’s fees andcharges. If he eventually succeeds and the seizure is released,the judgment-creditor has to pay him those fees. If, when a claimis preferred the Fiscal mero motu stays the sale, arid reports thefact to the Court, with the amount due for his fee, an order wouldbe made, when the claim is investigated,1 for the payment ofthe fee.
" The present case is different from those cited at the argument,for here the sale took place before the claim was investigated. Thenatural consequence of my having held that the gale is a nullity isthat I hold the plaintiff is entitled to maintain this action. He is
d) (1898) 3 N. L. li. 257.(2) (1900) 5 N. L. R. 19.
(3) (1902) 6 -tf. L. R. 279.
1906.
December 13.-
( 58 )
1906. entitled to have hie right declared as at the date of seizure, and, if he.December 13. succeeds, to enforce such a right as he may have on that footingagainst the judgment-creditor or the purchaser or the Fiscal. ”
The defendants appealed.
Bawa, for the defendants, appellants.
Van Langenbetg, for the plaintiff, respondent.
Cut. adv. vult.
13th December, 1906. Hutchinson C.J.—
This is an action under section 247 of the Civil Procedure Code,in which the plaintiff claims certain movable property which wasseized and sold by the defendants in execution of a decree obtainedby them against one James Peter.
The seizure was on the 8th April, 1905. The plaintiff made hisclaim under section 241 on 11th April, 1905. The sale was on 19thApril, 1905. The plaintiff's claim was investigated on 9th June,1905, and was disallowed. No application was made to stay thesale. The defendants contended that this action was not maintain-able after the property, had been duly sold by the Fiscal inpursuance of the writ of execution.
The District Judge held that when the claim was made it was theFiscal's duty to stay the sale, and that the sale was a nullity, andthat the plaintiff is entitled to have his right declared as at the dateof the. seizure. The defendants now appeal against that ruling.When a claim is made to the property seized in execution, the salemay, if it appears to the Court necessary, be postponed (section 242).But if it does not appear necessary, the Court is not thereforedebarred from investigating the claim. Or if the property seizedis “ subject to speedy and natural decay, ” and the Fiscal for thatreason sells it at once, as he is authorized by section 227 to do, a•claim could still be investigated. It would be righf. for the Court•in most cases to postpone the sale, if the claim could not be ad-judicated upon before the date fixed for the sale. But it would notT>e right or po*ssible in every case-. And where the sale is not post-poned, the Court can still decide which of the pai*ties was entitledto the property at the date of the seizure, and can direct the applica-tion of the purchase money in accordance with its decision.
; The appeal should be dismissed with costs.
Wendt J.—
1 agree. I would supplement the Chief Justice’s recital of thefacts by stating that the defendants admit they caused the 'Fiscal■ to make the seizure in question, and that they became themselves
( 59 )
the purchasers at the sale, though they add that they have nowin turn sold and delivered the goods to others.
The property in question being movables, the seizure (undersection 227 of the Code) was manual and amounted to a dispossessionof the owner. He was therefore obliged to take proceedings toassert his title. He might perhaps have sued the defendants at oncein a regular action regarding the Fiscal as their agent, but he wasalso entitled to resort to the shorter and simpler remedy of a claim.Once the claim was made, plaintiff was bound, if it was disallowed,to sue under section 247, as otherwise he could in no possible wayhave obtained relief on the footing of his ownership against otherpersons relying on the seizure,, the order disallowing the claimbeing final as to the liability of the property to seizure and saleunder the particular execution [Meenachy v. Onanapracasam (1);Ismail Lebbe v. Omer Lebbe (2)]. I remain of the opinion I expressedin Adrian v. Weerdkoon (3), that (notwithstanding the fact that,when the Court comes, at the trial of the section 247 action, todetermine the rights of the parties the property being movablehas irrevocably passed out of the possession and ownership of theplaintiff he is entitled to have the liability or otherwise of thatproperty to the seizure which was made settled by the Court in afinal judgment binding the decree-holder. That point having beendetermined in his favour, he would, if he did not obtain full redressin the section 247 action itself, as he conceivably might where thecreditor has himself purchased the goods, pursue his remedies byrei vindicatio or claim for damages against the present possessor orthe creditor or the Fiscal. I do not see why in principle the factthat the creditor has pushed on the sale in spite of the claim shouldprejudice the rights of the claimant. Ordinarily, a plaintiff whosues when his defendant threatens injury to his property or • haspartially injured#it- would not be precluded from recovering damagesfor greater injury done pending action because he did not take outan injunction. The defendant is apprized of plaintiff's rights, and'thereafter proceeds at his peril. "I do not see why it should bedifferent in the claim procedure prescribed by the Code. No*question of estoppel by standing by and letting the sale go on canarise in view of the pendency of the proceedings ordained by lawfor the®assertion of the claimants' rights.
T feel some difficulty in assenting to the position that when theFiscal receives a claim and refers it to Court, he is bound to refrain*from carrying out the sale until he is apprized of the Court’s decision..*
(1) (1892) 2 C. L. R. 97.(2) (1889) 3 N. L. Ii. 303.
(3) (1902) . 3 Browne 58.
-1906.
December 13~Wbndt J-
( 60 ) •
1906. It appears to me that section 241 leaves the Fiscal no discretion;
December 13. eVery claim preferred he must refer to the Court. It is the CourtWendt j. which is given the discretion ol postponing the sale (section 242).
If the Fiscal was bound, to stay the sale as soon as he received aclaim, a premium would be put upon vexatious claims. False andcollusive claims would arise on the very eve of the sale, and post-ponement would prejudice the creditor before the Court's inter'ference could be invoked. Section 242, which gives the Fiscalpower to " adjourn ” a sale, refers, I take it, to a sale once com-menced. Such adjournment may be made for want of time, or in•order to have some question incidentally arising settled before theauction is concluded. .It is not necessary for the support of thelearned District Judge's decision that we should hold the sale to havebeen a nullity. I prefer to express no opinion on that point.
I think the appeal should be dismissed with costs.
Middleton J.—
The question in this case was whether the plaintiffs, the claimantsto movable property seized in execution by the Fiscal at the suitof the, defendants against their judgment-debtor, can maintainan action under section 247 of the Civil Procedure Code after the•sale of the property by the Fiscal..
The property was seized on the 8th April, 1905, and claimedunder section 241 by the plaintiff on the 11th April, 1905. No orderto stay the sale was made, and the Fiscal sold the property on the19th April, 1905. The claim was inquired into on the 9th June,1905, and rejected on the ,10th June, 1905, and this action wasbrought on the 22nd July, 1905.
The District Judge held the action to be maintainable, but.declared the sale by the Fiscal to be a nullity.
The appellant's counsel did not support the hitter declaration•of the learned District Judge, but maintained that where the"property had, been sold the action must be abortive, as the Courtcould give no effect to any declaration it was entitled to make under■section 247, and that the execution-creditor would not be liablefor damages unless he pointed out the property to be sold.
Where a claim is made it is the duty of the Fiscal to report it to• the Court under section 241, and the Court can under section 242,if it appears necessary, postpone the sale for the purpose of investi-gation. «
The Fiscal has no power apparently to stay a sale, but under■section 342 a sale, presumably after commencement, rfiay beAdjourned by the Fiscal, the cause being reported to the Court.
( Cl )
Under section 343 the Court has a general power to stay executionor adjourn a sale.
It seems to me, therefore, that the Fiscal has no power to stayexecution without an order of the Court, and that he'is bound tocontinue the execution of the writ entrusted to him unless he receivesorder from the Court to the contrary. In the present case the Fiscalwas acting under a writ issued by the Court, and the sale therefore,in my opinion, was not a nullity.
Provision is made under sections 242 and 343, which would enableparties making a bond fide claim to obtain a stay of execution fromthe Court, thus obviating any hardship which might arise.
If the Fiscal was bound to stay a sale on every claim made undersection 241, the process of the Court might be entirely obstructedby the friends of a fraudulent defendant.
According to a decision of the Full Court in the case of Meenachyv. Qnanapracasam (1), an order made without investigation on defaultand permitted by section 242 was deemed to be an order on themerits, and to have the same effect as res judicata.
In Silva v. Mendis (2) Bonser C.J. and my brother Wendt heldthat a claimant whose property had been wrongfully seized andsold by the Fiscal pending action under section 247 before judgmenttherein was entitled to a declaration of his right at the date ofseizure.
In the present ease movables have been seized and sold, and theowner dispossessed was bound to claim or to be for ever debarred.
He has claimed, and his claim has been rejected; if he stops shortof his action under section 247, any further claim for damages orfei vindicatio on his part might be met with the plea of res judicata.
In my opinion, therefore, the plaintiff has a right to maintainthis action for a declaration as to his rights at the date of seizure,and the appeal shpuld be dismissed with costs.
Appeal dismissed.
(1) (1892) 2 C. L. R. 97.
(2) (1902} fi V. L. R. 252.
1906.
December 13,
Middj^eton
J.