005-NLR-NLR-V-02-WIKRAMATILLAKA-v.-MARIKAR-et-al.pdf
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WIKRAMAT1LLAKA ». MARIKAR et oLD. G„ Colombo, 5,711.
K)ivU Procedure Code, s. 247—Misjoinder of parties—Technical objectionsin judicial proceedings.
A gifted a parcel of land to B, C, and D. On a writ sued out byplaintiff against A the parcel of land donated was seized, and-advertised for sale. B and C claimed it, and their claim wasupheld by the District Courts and the property released fromseizure. Plaintiff now sued A, B, C, and D under section 247 of theCivil Procedure Code to have the order of the District Court"releasing the seizure set aside, and the deed of gift declared null andvoid on the ground of fraud and collusion.
Held, that A should not have bfeen j oined as a party to this action,but that D was properly made a party defendant,' and that theaction was maintainable against B, C, and D.
Observations by Bonseb, C.J., against District Judges givingeffect to merely technical objections in the course of judicial pro-ceedings.
* | 'HE plaintiff issued writ against the' property of the firstdefendant in this case for the recovery of a sum of Rs. 903'75,and the Fiscal seized thereunder the land which is the subject-matter of this case, whereupon the second and third defendants-claimed the same under a deed of gift executed by the first defendantin their favour. Their claim was upheld, and the land releasedfrom seizure by the Court. The plaintiff then brought the presentaction under section 247 of the Civil Procedure Code, alleging thatthe deed of gift was executed by the first defendant fraudulentlyand in collusion with the second, third, and fourth defendants, withintent to defeat and delay the plaintiff as creditor of the firstdefendant, and praying for a declaration that the deed was void asagainst the plaintiff, and that the premises seized were executableunder the plaintiff’s writ.
The first defendant, as matter of law, denied that it was com-petent to the plaintiff to pray that the deed of gift be declared.void as against him, and contended that he had been improperlyjoined as a defendant.
1888.October 92and 29.
1805.
October 22and 29.
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The second, third, and fourth defendants filed together a separateanswer, wherein the fourth defendant pleaded that the plaint didnot disclose any cause of action against him ; and that the presentaction being one under section 247 of the Civil Procedure Code,it lay only against those who claimed the property seized; but thatthere was no averment in. the plaint that the fourth defendant wasone who so claimed.
The second, third, and fourth defendants admitted the execution.of the deed of gift, but denied that it was fraudulent. ‘
The District Judge held that the action was-misconceived, andit could not be said to be an action under section 247 of the CivilProcedure Code in view of the above-mentioned allegations andprayer in the plaint; and that, if he was to consider the action asone under the common law, the proof in support of plaintiff’scause of action, as stated in the plaint, had failed ; and dismissedthe plaintiff’s claim with costs.
The plaintiff appealed ; and the "case came'on. for argument onthe 22nd October, 1895.
Dornhorst and Sampayo, for appellant.
Bawa, for first defendant, respondent.
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Jayawardena, for second, third, and fourth defendants,respondents.■.«.
Cur. adv. wit.
29th October, 1895. Withers, J.—
Plaintiff’s action against all the four defendants has been dis-missed, and the question for decision is whether that judgment isa right one..■
One reason given by the Acting District Judge, Mr. Grenier,'forhis judgment is, that the action appears to him to be altogethermisconceived.
He observes that it cannot be said to be an action under section247 of the Civil Procedure Code in view of the averments containedin paragraph 5 of the plaint and of the prayer, and in his opinionthe case cited by Mr. Van Langenberg {2 C. L. R 1.9.1) is exactly inpoint.
If, he adds, the action is to be considered one at common law.he finds that the plaintiff has signally failed to sustain the cause ofaction embodied in the 5th paragraph of the plaint.
The manifest object of this action is to have it declared by judg-ment that a certain land and premises bearing assessment No. 70,situated at Dean’s road, Maradana, Colombo, are liable to be sold inexecution of a decree for a sum of money which the plaintiff hasobtained against the first defendant, and which is still unsatisfied.
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The second and third defendants are joined in this action formore causes than one.
188B.
October 22andS9.
The first cause for joining them is that they, on the 4th May, Withers, 1.1894, procured an order of Court releasing the said premises fromseizure under plaintiff’s writ of execution against the first defendant.
The plaintiff, being the party against whom that order was ..made, was^ therefore, under the 247th section of the Civil Pro*cedure Code, at liberty to institute an action within fourteen daysof that order to have the said property declared liable to be sold in *execution of the said decree in his favour. He has instituted this .action within the time prescribed.
In the 4th paragraph of the plaint the plaintiff, after setting outthe fact of the first defendant having a life-interest in -the saidpremises, and His donation of that interest on- the 22nd December,1893, to the second, third, and fourth defendants, goes on in the 5th *paragraph to allege that the gift was made and accepted collnsivelybetween the parties thereto, with the fraudulent intent of defeat-ing and delaying the plaintiff as creditor of the first, defendant;and that in the said circumstances'it is void as against him.
He consequently prays that this* deed notwithstanding, whichhe asks may be pronounced void oply so far as it hinders his pro-secution of a just claim against , the first defendant, the premisesmay be declared executable under his said decree.
This, as I said before, is the object of this action, and I think itwas competent for him to join the fourth defendant, as he is anecessary party to that adjudication he prays for in respect of thesaid instrument of donation, viz., that it shall not avail the defendantswho hold the premises under it to stay the prosecution of his writ.
Then the case relied on by the Acting District Judge‘is not inpoint. The defendants, claimants in that case, had bougHt at aFiscal’s sale a share in certain premises subject to a mortgage- tothe plaintiff by the owner, against whom the plaintiff afterwardsobtained a mortgage decree. We held that the defendants,claimants, were in the position of third parties in possession ofmortgaged property, against which the plaintiff could only proceedin the usual hypothecary action. The claimants had purchasedthe land before the plaintiff’s mortgage decree, and therefore itcould not be declared subject to that decree. Hence the. presentaction is, I consider, maintainable against the second, third,-andfourth defendants.
The first.defendant has, however, specially pleaded that he hasbeen improperly joined in this action, and I think he is entitled
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1896.
October 22arid 29.
WlTHlSBS, J.
clause 1 of the memorandum of documents relied on by the plaintiff.The Acting District Judge should not have sustained the objectionto this document being put in evidence. It was atechnical objection.The first defendant’s name will be struck off this record, and he willbe allowed his costs in both courts. The plaintiff will have his costsin appeal against the second, third, and fourth defendants. Allother costs will be costs in the cause.*
Bonsee, C. J.—
I agree in the judgment that has just been read. . I wish toadd that I think the District Judge should not have given effectto the technical objection which was raised. I commend to hisattention, as to that of all other Judges of first instance, theobservations of Jessel, M. R., in re Chemvell, 8 Ch. D. ■>06 :—“ It iB“ not the duty of a Judge to throw technical difficulties in the way“ of the administration of justice, but when he sees that he is-“ prevented receiving material or available evidence merely by“ reason of a technical objection, he ought to remove the technical“ objection out of the way upon proper terms as to costs and“ otherwise.”
to succeed. The only apparent reason for his being made a partydefendant is that he donated his interest in the premises0 to theother defendants with the fraudulent intent of defeating his creditor,the plaintiff’s claim. But it is not sought to dissolve that interest ofdonation. As has been observed,, voluntary settlements, voidagainst creditors, may be good for other purposes.
And even when a suit was instituted by a trustee in bankruptcyto set aside a conveyance executed by the bankrupt to his sonwith intent to delay or defeat his creditors, it was held oh demurrerby the bankrupt that he was not a necessary party to the suit, perlate Jessel, M. R., in Weise v. Wardle, 19 L. R. Eq. 171.
The first defendant has no interest in the donated premises, andthe other defendants can keep them intact if they settle the plaintiff'sunsatisfied judgment against the donor.
As to the merits, I think the case should go back to allow theplaintiff to read in evidence an affidavit of the first defendant,which forms part of the proceedings in the record referred to in