009-NLR-NLR-V-47-ABOOSALIHU-Appellant-and-ARIKAR-et-al-Respondents.pdf
80ERTSZ A.C.J.—Aboosalihu and Morikar.
21
1946Present: Soertsz A.C.J. and Bose J.ABOOSALIHU, Appellant, and MARIKA R et al.,Respondents.
75—D. C. {Inly.) Batticaloa, 323.
Civil Procedure Code, a. 344—Scope of—LAmi d to questions arising betweenparties to the action or their legal representatives*
Where the appellant who was the judgment-creditor in a case sought,under section 344 of the Civil Procedure Code, to reap the benefit of adecree entered in favour of the judgment-debtor in another cat. on theground that the latter decree had been assigned by the judgment-debtorto the respondent collusively and fraudulently in order to defeat thrrights of creditors—
Held, that section 344 of the Civil Procedure Code had no application,that section being confined to questions arising between the partiesto an action or their legal representatives. The appellant’s properremedy was by way of a Faulian action.
^ PPEAL from a judgment of the District Judge of Batticaloa.
A. Rajapakse, K.C. (with him C. T. Olegctsegarem), for the petitioner,appellant.
O.Thomas, for the substituted plaintiff, respondent.
Cur. adv. vuit.
January 15, 1946. Soertsz A.C.J.—
This case is full of confusion resulting from a lamentable lack ofappreciation by all the parties concerned in the Court below of clear rulesof procedure. The typed copies of the proceedings in the relevant cases,prepared for the purpose of this appeal, make confusion worse confounded,and it is only by consuming hours in a laborious examination of theoriginal record in the case that I have been able to ascertain—at leastI hope so—some of the material facts from which the questions submittedfor our consideration have arisen. Those facts are as follows :—Theplaintiff in case 323 D. C. Batticaloa obtained judgment against oneMohamadu Bawa on March 25, 1941, for a sum of Rs. 432 and interestand costs. The appellant now before us, on August 16, 1941, obtainedjudgment in case No. 119, D. C. Batticaloa against the plaintiff in case
SOERTSZ A.C.J.—Abooaalihu and Marikar.
No. 323 for a sum of Rs. 449, and on August 18, 1941, he purported toseize the decree the plaintiff in D. C. Batticaloa 323 had obtained. Butby a writing, valid on the face of it, the plaintiff in case 323 D. C.Batticaloa had assigned his decree to the first respondent to this appealwho, by an order of Court, has been substituted as plaintiff to enable himto proceed to the execution of the decree in 323 D. C. Batticaloa byvirtue of his assignment.
The question thus arose whether the appellant or the first respondentwho is the substituted plaintiff is entitled to reap the benefit of thedecree in D. C. Batticaloa 323. It is established, beyond question now,by the ruling of the Divisional Bench that heard the appeal in KailasanPMai v. Palaniappa Chettiar1 that in circumstances such as exist in thepresent case, the assignment being prior to the seizure prevails over it.But it was submitted to us that in view of the fact that the appellant hadopposed the respondent’s application also on the ground that it wascollusive and fraudulent and with a view to defeating the appellant’sclaim that question should have been tried by the Judge when he wasconsidering the question under section 344 of the Civil Procedure Codewhich the appellant contended was the section that applied. The pointfor decision, then, is whether that section applies, and if it does, whethersuch an issue can be tried and determined under it. The section is inthese terms—
“ All questions arising between the parties to the action or theirlegal representatives and relating to the execution of the decree,shall be determined by order of the Court executing the decree, andnot by separate action ”.
The decree, that the appellant is seeking to execute is the decree he ob-tained in case No. 119 D. C. Batticaloa against the plaintiff in caseNo. 323 D. C. Batticaloa and in regard to case No. 119 the first re-spondent to this appeal is no party. He, by virtue of his substitution,is now a party to case No. 323 D. C. Batticaloa. For that reason alone,it seems to me that section 344 has no application, that section beingconfined to questions arising between the parties to the action or theirlegal representatives. The parties to the action in which the decreesought to be executed are the appellant and Mohamadu Bawa. Thefirst respondent is a complete stranger to that action. But, even if section344 applied, I greatly doubt that such an issue as was raised by theappellant, could be tried under it. It seems to me that the appellanthas been acting in misconception of his rights and of the rules of procedure.So far as the facts disclose, it seems to me that the appellant’s remedywas by way of a Paulian action. If disregarding section 344 under whichappellant’s Counsel placed his case, the matter be examined in the lightof section 234 of the Civil Procedure Code which provides the mode ofseizure in a case like this, again the appellant is involved in difficultyfor the minute in the journal relied on by the appellant can hardly besaid to be “ an order of the Court directing the proceeds of the formerdecree to be applied in satisfaction of the latter ”
1 35 N. L. R. 342.
WIJEYEWARDENE J.—The King v. K. K. treter.xa
I would dismiss the appeal, but in view of the very confused mannerin which both parties presented their case in the Court below and causedthe copies required for this appeal to be prepared, I would fix therespondent’s costs in both Courts at Rs. 105.
Rose J.—I agree.
Appeal dismissed.