020-NLR-NLR-V-58-T.-RAMAN-Appellant-and-N.-MANICKAM-et-al.-Respondents.pdf
Present: Gratiaen, J., and Sansoni, J.
T. RAMAN Appellant, and N. MANICKAM el at., Respondents
' S. C. 120—D. C. Jaffna, 6,7S0
Rea jmlicata —“ 247 action "—Attachment of property—Previous litigation rut to
title between judgment-debtor aivl' claimant—flights of^judgpef-nl-crcditoi
Execution purchaser is "prim/" of judgment-drbtap** Of,l Procedure (fade,s. 247.■"
When property ntbu-hctl liy a jutlginent-crcclilot- is'tlio suliject of a claim in a“247 action", nn earlier judgment- upholding tho claimant’s title to it naagainst tlio judgment-debtor would operate as res judicata in favour of thoclaimant.
Kuda Banda v. Dingiri Banda (1911) 14 X. T.. R. 145 and Satulrasrga'ra v,Coomaraswamg (1917) 4 C. IV. 11. 37S, overruled.
jA-PPEAL from a judgment of llte District Court, Jaffna.
C. RanganatJian, for the plaintiff appellant.Joseph St. George, for the defendant respondent.
Cur. adv. vuU.
March 14, 1955. Gratiaen, J.—
This action was instituted under Section 247 of the Civil ProcedureCode concerning a property which a judgment-creditor (the 1st res-pondent) had caused to be seized in execution of a money decree againsthis two judgment-debtors. The appellant objected to the seizure onthe ground that lie was its absolute owner. In due course, lie institutedthis action for a declaration inter alia that, the property belonged exclusive-ly to him and was not liable to bo sold in execution of the 1st respondent’sdecree. The learned trial .Judge dismissed the action and held .thatthe property belonged to the 3rd respondent (the 2nd judgment-debtor)by virtue of a purchase in 1946 from the 2nd respondent (the 1st judgment-debtor).
The attachment of the property in dispute had been secured by the1st respondent on 22nd March 1950. Nevertheless the learned Judgerejected the appellant’s plea of res judicata based on a decree in hisfavour dated lGth September 194S of the District Court of Jaffna (affirmedin appeal on 13th September 1949) in an action in which he had success-fully vindicated his title to the property as agninst tho 3rd respondent.
The state of the earlier decisions as to whether an attaching creditorin a “247 action” is bound by a judgment previously declaring theclaimant entitled to the property as against the judgment-debtor isfar from satisfactory. In Kuda Banda v Dingiri Banda Lascelles, J.,sitting alone, hejd that in such a situation the creditor (even though theseizure was effected after the date of tho decree relied on as res judicata)
1 (1911) 14 2>7. L. It. 145.'
■was nevertheless entitled to a fresh adjudication on the merits as tohis judgment-debtor’s title. Six years later, in Pcdrupillai v Dionisa• ',Ennis, J., also sitting alone, expressed a strongly-worded opinion to thecontrary, but idtimately disposed of the appeal on other grounds.Ennis, J. pointed out that certain English decisions relied on byEascelles, J. related only to “estoppels by conduct” which bound thejudgment-debtor personally but not his judgment-creditor “ who wasnot a party to the estoppel ”. I respect fully agree that Lascellcs, J.appears to have lost sight of the distinction between an estoppel whichmerely “ gives rise to the application of equitable principles betweenman and man ”, and a so-called “ estoppel by record ” which, on groundsof public policj', prohibits in limine a second adjudication between thesame parties (or their “privies ”} on the subject matter of the earlierl is. >
Six days after PcJ.rupillai’s ect-se (supra) had been decided, a simila1’case came up before dc Sampayo, J., also sitting alone, in Sandrasegara. vCoomarasxcamy-. Unfortunately, bis attention was not drawn to Ennis, J.’srecent dissent, and he followed Kuda Banda’s case (supra) on theassumption that there was no judicial pronouncement to the contrary.
The rule of stare decisis does not require a Bench of two Judges toaccept any of these conflicting single-Judge decisions as authoritative.We must therefore come to an independent conclusion on this controver-sial question. In my opinion, Kuda Banda’s case and Sandrasegara’scase (supra) ought to be over-ruled, and the view expressed by Ennis. J.in Pedrupillai’s case (supra) should be adopted.
Drieberg, J. lias incidentally explained in Samara na yoke v. Mend or is*that a judgment-creditor in a 247 action “ has to prove as against the• claimant his debtor’s right to the property as fully as the debtor himselfif the. latter teas seeking to vindicate his title against the claimant Theultimate object of execution proceedings under the Code is that, upona judicial sale of the property attached, the right, title and interest ofthe judgment-debtor effectually passes to an execution-purchaser, whilethe purchase price (or a part of it) is paid to the creditor in satisfactionof his money decree. Under certain of her statutes, tlie purchaser enjoysthe special privilege of acquiring a better title than the judgment-debtorhad possessed. Not so in the case of execution sales conducted underChapter 22 of the Civil Procedure Code. Indeed, the purchaser mayhimself have the sale set aside under Section 234 on discovering that thedebtor had “ no saleable interest ” in the property.
An execution purchaser at any rate is clearly a “ privy ” of thejudgment-debtor for the purposes of the rule of res judicata except ineases where the attachment of the property had preceded the dateof the judgment declaring that the judgment-debtor (or claimant asthe ease may be) had superior title. No doubt the Judicial Committeeof the Privy Council has observed in Dinendronalh v. Sanniah BamkumarChose 4 that, unlike a private purchaser, ail execution purchaser acquiresthe title of the judgment-debtor “ by operation of law ”. Nevertheless,it is a derivative titie passing to him by law from the judgment-debtor
U1917) 20 X. R. R. 143. '3 (102S) 30 X. R. R. 20-3.
_-(1017) 4 C. 11 R. 37S.4 (1SS1) I. R. R. 7 Col. 107.
and from no otiier source. Suppose therefore that the judgment-debtor had (before attachment) unsuccessfully sought to vindicatethat title against the same claimant; it necossarily follows that, in a laterlitigation against the successful claimant, the execution purchaserwould in effect bo litigating under the same title. The relationshipbetween judgment-debtor and execution purchaser in respect of theproperty contains all the essential elements of “ privity of estate ”so that the earlier judgment binds the privy to the same extent that itbinds the parties themselves. It would be unjust and contrary to thespirit of the rule of res judical a to deny the claimant the fruits of hisearlier victory, and to compel him to re-establish his rights a secondtime against the sueecssor-in-title of his former adversary.t
The relationship between the execution purchaser and judgment-debtor for the purposes of res judicata has now been explained. It issuggested, however, that the judgment-creditor is not a privy of thejudgment-debtor in what de Sampayo, J. calls “ the usual senseSandrasegara’s case (supra) at page 3S1. I agree that the situationis hot identical, because the judgment-creditor in a “ 247 action " doesnot claim that his debtor’s title has already passed to him. But hedoes assert that the debtor enjoyed a saleable interest in the propertyat the date of its attachment; and for that reason he demands an execu-tion sale at which that interest will pass to the highest bidder (perhapshimself) in exchange for valuable consideration, the whole or part of whichmust be applied in satisfaction of his decree.
At every stage of the present action, 1st respondent, as judgment-creditor, was litigating under a title identical with that which his debtorhad asserted in the previous litigation against the appellant-. Theirrelationship (in respect of the latter's title) was therefore sufficientlyclose to establish “ privity ” between them in a very real sense.
The rights conferred on a judgment-creditor upon the attachment ofproperty in which the debtor is alleged to have a saleable interest closelyresemble for all practical purposes a mortgage, even though the attach-ment may not strictly establish “an interest in land”. Ibrahim v.Hongkong and Shanghai Bank 1. The effect of the attachment is toconfer on him a- preferential right to the proceeds of the sale accordingto rules regulated by the Civil Procedure Code. See also Wills on Mort-gage (1st ed.) 101—102. “Privity in estate or interest”, having beenestablished by operation of law, is the foundation of his power of attach-ment. In the absence of privity, the power could not exist. But intruth there is privity, and consequently the doctrine of res judicatacither stands in his way or comes to his aid (according to the outcomeof the previous litigation as to title between debtor and claimant).
The true principle has been very clearly explained in Bigelow on Estoppel(5th ed 🙂 pp. 142—144, cited with approval in Ca-spcrsz pp. 162—3. “Thoground of privity is a property and not a personal relation ”. An earlierjudgment (which was conclusive against the judgment-debtor in respectof his title to the property subsequently seized in execution against him)is equally and to the same extent binding on the judgment-creditor atwhose instance the j>roperty was attached and brought in custodia legiswith a view to having it judicially sold for his benefit. Similarly, an
5 {19-31) 37 -V. L. R. 51.
earlier judgment upholding the debtor’s title as against- a particular•claimant would operate in a “247 action ” as res judicata in favotir.ofthe judgment-creditor.
ITn the view that I have taken, there is really no need for any extension(on grounds of public policy) of the doct rine of res judicata as in Da-dalleDhannalankara’s case *. In the present context the doctrine operatesdirectly. A man who claims a right in virtue of someone else’s titleto property cannot repudiate its infirmities which have previously beenjudicially declared to exist in favour of a third party. Cut senlil commodumsentire debet et onus.
I would answer the issue as to res judicata against the 1st respondent.The judgment under appeal must therefore be set aside, and judgmententered in favour of the appellant as prayed for with costs in both Courts.
Saxsojct, J.—I agree.
Appeal allowed.