052-NLR-NLR-V-12-WERTHELIS-v.-DANIEL-APPUHAMY.pdf
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1909.March 30.
Present: Mr. Justice Wendt.
WERTHELIS v. DANIEL APPUHAMY.
C. R., Negombo, 16,245.
Action under a. 247, Civil Procedure Code—Seizure of land lying outside die
jurisdiction of the Court issuing writ—Claim—Test of jurisdiction—
Cause of action—Seizure—Residence of defendant—Civil Procedure
Code, ss. 47, 244, 245, 246, and 247. .
Where on a writ issued from the District Court of Negombo landsituate within the jurisdiction of the District Court of Kurunegalawas seized, and a claim was made and reported to the DistrictCourt of Negombo, and the claim being disallowed by the said Court,the claimant brought an action, under section 247 of the CivilProcedure Code, in the Court of Requests of Negombo against thejudgment-oreditor, who resided outside the jurisdiction of suchCourt,— •
Held, that the Court of Requests of Negombo had no jurisdictionto entertain the action.
Wendt J.—The cause'of action in an action under section 247 isthe seizure, which is a violation of the right of ownership, and not-the disallowance of the claim.
Held, also, that it was competent for the Court at this stage,under section 47 of the Civil Procedure Code, to return the plaintto be presented to the proper Court.
Order made accordingly.
A
PPEAL by the plaintiff from a judgment of the Commissioner.The facts sufficiently appear in the judgment.
Tanibiah (with him A. Drieberg), for the plaintiff, appellant.
R. L. Pereira, for the defendant, respondent.
Cur. adv. wit.
March 30, 1909. Wendt J.—
This appeal raises an interesting question as to the jurisdictionof the Court, which, so far as I am aware, has not in the same formbeen raised before. The present action is brought by an unsuccess-ful claimant of land under the provisions of section 247 of the CivilProcedure Code. The land is situated within the territorial limitsof the District Court of Kurunegala, and the seizure was effectedat the instance of the present defendant in execution of a writissued by the District Court of Negombo, to which the Fiscal indue course reported the claim made by the present plaintiff. ThatCourt having disallowed the claim, the plaintiff has brought thepresent action in the Court of Requests of Negombo. In his plaint
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he describes the defendant as “ of Bandoiegoda,” and it appearsto have been conceded that the defendant’s residence is outsidethe territorial jurisdiction of the Court of Requests. The land inrespeot of which the action is brought being also outside the Court’slimits, the plaintiff was driven to rely on the head (c) of section 9of the Civil Procedure Code in order to establish the competency ofthe Court of Requests. He says that the cause of action arose inNegombo, and his counsel has argued that that cause of action wasconstituted by the Negombo Court disallowing his claim, and herelied upon the opening words of section 247, which give a right ofaction to the party against whom an order under sections 244, 245,or 246 is passed.
The defendant, however, contended, in the first place, that thescope of the action allowed by section 247 being to establish theright which the plaintiff claims to the property in dispute, thatamounted to a direction that the action shall be brought in theCourt whose territorial limits included the property in question.This contention is not new, for I find -that it was put forward in acase, D. C., Kurunegala, 1.574,1 where the Court (Bonser C.J. andBrowne A.J.) held that section 247, which gave the plaintiff theright of bringing the action, contained nothing limiting his rightunder section 9 to choose the Court in which to sue.
The defendant argued, secondly, that the true cause of actionaccruing to the unsuccessful claimant arose from the violation of hisright of ownership which was involved in the seizure of his property,and that that cause of action necessarily arose where the propertywas situated. I think this contention is sound. Actus cwrice neminifacit injuriam. It is true that section 247 requires an adverseorder of the Court before the action can be brought, but thatorder merely determines for the time whether the seizure waslawful or unlawful. It is the wrongful act of the party who ismade defendant in the statutory action which constitutes the causeof that action. That is the view which was taken by Lawrie A.C. J.in C. R., Kurunegala, 5,571.2 There certain movables in theKurunegala District were seized under a Chilaw writ at the instanceof a decree-holder resident in Chilaw, and the Supreme Court, held,reserving the judgment of the Court below, that the action hadbeen rightly brought in Kurunegala. “ In my opinion,” said thelearned Judge, “ the Kurunegala Court of Requests-had jurisdictionto try this section 247 action, because the cause of action was th6seizure in execution by the Fiscal of movables in Kurunegala.That is the wrong, for the prevention or relief of which this actionwas brought.” If I may say so, I entirely agree with that reasoning.
The next question is as to the proper order to be made uponthe view of the law which I have enunciated. Section 47 of theCivil Procedure Code enacts that “ in every case where an aotion1 S. C. Min., Feb. 21, 1900.2 S. C. Mm., June 21, 1899.
1909.Monk SO.
Wendt J.
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1909.March SO.
Wbwdt J.
has been instituted in a Court not having jurisdiction by reasonof the amount or value involved, or by reason of the conditionsmade neoessary to the institution of an action in any particularCourt by section 9 not being present, the plaint shall be returnedto be presented to the proper Court.” Having regard to the decisionof the Indian Courts under the corresponding section 57 of theIndian Code of Civil Procedure, I think it is not too late now tomake an order under section 47. The appellant must pay thecosts consequent upon his having sued in the wrong Court, and Idirect that upon the Commissioner of the. Court of Bequests beingsatisfied within one month of receiving back the record, that theplaintiff has paid defendant’s costs in both Courts, he will endorseupon the plaint the date when it was presented, and the date of itsreturn, together with the reason for such return, and will return it tothe plaintiff to be presented to the proper Court. The Commissionerwill retain a copy of the plaint.
Appeal allotoed ; case remitted-