022-NLR-NLR-V-80-J.-K.-WINDSOR-Appellant-and-K.-H.-S.-SINGHO-AND-ANOTHER-Respondents.pdf
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1977 Present: Samarakoon, C.J., Wimalaratne, J. and Tittawella, J.J. K. WINDSOR, Appellant and K. H. S. SINGHO AND ANOTHER,Respondents.
S. C. 304/73 (F) – D. C. Matara L/2708
Conciliation Board Act – Civil Procedure Code, Section 247 action combined with Paulianaction – Certificate from Conciliation Board necessary – Objection to Court's jurisdiction -Duty of Court to decide it first.
HELD:
An action under section 247 Civil Procedure Code combined with a Paulian action cannot beinstituted without the necessary certificate from the Chairman, Conciliation Board. Since anaction under section 247 Civil Procedure Code has to be instituted within fourteen days of theorder in a claim inquiry, the time taken in proceedings before a Conciliation Board shall not betaken into consideration in terms of section 14 of the Conciliation Board Act.. Where the Court’sjurisdiction is challenged, it is the duty of Court to decide this question first.
.^^.PPEAL from a judgment of the District Court of Matara.
Daya Pelpola for plaintiff-appellant.
No appearance for defendants-respondents.
Cur. adv. vult.
December 20, 1977. Samarakoon, C.J.
This is an appeal from a judgment of the District Court of Matara. Thehistory of this case is relevant for the purpose of deciding this case. ThePlaintiff-Appellant instituted this action on the 21st of February, 1968,against the 1st Defendant (hereinafter referred to as the judgment-debtor) andthe 2nd Defendant, praying inter alia that deed No. 2342 dated 27th July,1965, attested by L. Goonetillake be declared null and void, and the property,called and known as Kelekumbura, more fully described in the schedule tothe plaint, be declared the property of the judgment-debtor and liable to besold in execution of a decree entered in favour of the Plaintiff-Appellantagainst the judgment-debtor. It appears that the Plaintiff-Appellant institutedaction No. M/2284 in August 1963 against the judgment-debtor praying forjudgment against him in a sum of Rs. 900/- being the value of a boat whichthe judgment-debtor had wrongfully removed from the Plaintiff-Appellant,and for damages in a sum of Rs. 500/- per annum till the boat is returned tothe Plaintiff-Appellant. The judgment-debtor filed answer in that case but didnot appear on the trial date. Decree Nisi was entered on the 9th September,1964, (P3) and it was made absolute on the 14th of May, 1967 (P4). On the
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20th of April, 1967, the judgment-debtor was subjected to an examinationunder the provisions of section 219 of the Civil Procedure Code. In thecourse of that examination he disclosed that the property called Kelekumburaof which he owned 4/14 shares had been transferred upon deed N. 2342dated 27th July, 1965, for a sum of Rs. 2,500/- to the 2nd defendant. Thejudgment-debtor also stated that of this Rs. 2,500/- a sum of Rs. 1,500/- waspaid in settlement of the amount due from him under the decree enteredagainst him in D. C. Matara case No. MB/1490. This fact is borne out by theattestation to that deed which was produced marked P7. In the course of hisexamination the judgment-debtor further disclosed the fact that although hesold his right, he did not leave the land, but continued to reside on the land.A certified copy of his evidence on the said examination had been producedmarked P8. In spite of the disclosure made upon such examination, thePlaintiff-Appellant caused writ to be issued and the Fiscal was directed toseize the said 4/14 shares of Kelekumbura, and the Fiscal by P5 dated1.8.1967 reported such seizure to the District Court of Matara. The property^~was then claimed by the 2nd Defendant. His claim was inquired into, upheld,and the property ordered to be released from seizure. The Plaintiff-Appellantthen filed this case on the 21st of February, 1968, as stated above. Thejudgment-debtor and the 2nd Defendant both filed answer and asked that thePlaintiff’s action be dismissed. In his plaint which purports to be an actioninstituted in terms of section 247 of the Civil Procedure Code, the Plaintiff-Appellant claims not only that the land in question was liable to be sold inexecution of the decree which is in his favour against a judgment-debtor, buthe also pleaded that the said deed No. 2342 (P7) was executed by judgment-debtor “acting in fraud and collusion with the 2nd Defendant withoutconsideration and with intent to defraud the Plaintiff”, “and the Plaintiff hasthereby been defrauded as the 1st Defendant is left with no property tosatisfy the claim of the Plaintiff’. This plaint incorporates not only an actionunder the provisions of section 247 of the Civil Procedure Code, but it is alsocoupled with a Paulian action. Such a procedure is well known to our lawand is maintainable in our law. In the case of Haramanis v. Haramanis' itwas held that a Paulian action could be combined with an action under theprovisions of section 247 of the Civil Procedure Code. That principle hassince been accepted and followed by all Courts. The purposes of a Paulianaction is to establish “that the alienation impeached was intended to defeatthe claim of creditors, that it left the alienator without sufficient property tomeet the claims of his creditors, and that a creditor had been prevented bythe alienation from recovering what was due”. Per Garvin, J., in Fernando v.Peiris2. A successful Plaintiff in a Paulian action then obtains only adeclaration that the impeached deed is void in so far as it is necessary tomake the property available for execution. Title does not revest in thejudgment-debtor and any unsold portion after execution remains in thejudgment-debtor. Abdul Coder v. Munasinghe,1 and Punchi Banda v. Perera*.
'(1908) 10N.L.R. 332.’(1957) 58 N.L.R. 162.
>(1932) 33 N.L.R. ai 6.'(1928) N.L.R. 355.
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To this plaint the Defendants filed answer. Both denied the allegation offraud and both stated that the Plaintiff-Appellant could not maintain hisaction by reason of the fact that he had failed to obtain the necessaraycertificate from the Conciliation Board having jurisdiction in the matter. Thecase appears to have been taken up for trial on the 28th January, 1971. Nineissues were framed. Issue 9 raised the question whether the action could bemaintained for want of the necessary certificate from the Conciliation Boardhaving jurisdiction with regard to the dispute. Counsel who appeared for thePlaintiff objected to this issue stating that this was “a statutory action arisingout of an action under section 247 and therefore this action does not comeunder the purview of the Conciliation Board Act”. There seems to have beena prolonged argument on this objection and the case was postponed for the26th of February, 1971, for further submissions. On that date by agreementbetween counsel appearing for the various parties, issues 1-6 framed on the25th January, 1971, were adopted, and three new issues suggested by counselfor the 2nd defendant were also adopted by consent. Issue 8 was identicalwith the original issue 9. Thereafter the learned Judge seems to havecommenced the trial of all issues framed and after trial he answered issue 8in the affirmative. This necessarily means that the Plaintiff-Appellant couldnot have instituted or maintained this action.
Issue 8 goes to the very foundation of this case in that the defendantchallenged the jurisdiction of this court to entertain this action. Section14(l)(a) reads as follows:-
“Where a Panel of Conciliators has been constituted for any villagearea.”
(a) no proceedings in request of any dispute referred to in paragraphs (a),
and (c) of section 6 shall be instituted in, or be entertained by, aCivil Court unless the person instituting such proceedings produces acertificate from the Chairman of such Panel that such dispute has beeninquired into by a Conciliation Board and it has not been possible toeffect a settlement of such dispute by the Board, or that a settlementof such dispute made by a Conciliation Board has been repudiated byall or any of the parties to such settlement in accordance with theprovisions of section 13;”
Section 6(a) refers to any dispute in respect of any immovable propertythat is wholly or partly situate in that village area. There was no doubt adispute between the parties within the meaning of section 6(a) of theConciliation Board’s Act. That dispute was a dispute between parties as towhether the land called Kelekumbura had been transferred in fraud of thePlaintiff-Appellant, and .therefore, whether it was liable to be taken inexecution in so far as it was required to satisfy the decree in favour of the
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Plaintiff-Appellant. The judgment-debtor and the 2nd defendant had to provethat this land fell within the Conciliation Board area. For this purpose theycalled the Chairman of the Conciliation Board of Dondra, by name DanisterThenabadu. He produced – certified copy of Gazette marked 2D3 whichestablished that a panel of conciliators had been appointed for theDevinuwara Town Council area for a period of 3 years from 9th September,
He also stated that the Chairman who was named in the Gazette haddied, and that he himself was appointed Chairman on the 2nd of August,1968. It is therefore apparent that at the time the plaintiff instituted thisaction there was a panel of conciliators for the Devinuwara Town Councilarea described therein. Witness Thenabadu also stated that he knew thehouse where the judgment-debtor originally lived, meaning thereby the landin dispute, and that that land fell within the Conciliation Board area. ThePlaintiff-Appellant did not lead any evidence in rebuttal and the learnedJudge was entitled to hold, and he did hold, that the land in dispute fellwithin the Conciliation Board area of the Devinuwara Town Council, andthat on the date the action was instituted by the Plaintiff-Appellant there wasin existence a panel of conciliators. The authority to decide a dispute isconferred on the Conciliation Board. That Board is comprised of conciliatorsdrawn from the panel of conciliators. Its decision is recorded and signed bythe President of the Board. The Chairman may or may not be a member ofthe Board. His functions are purely ministerial and involve “no element ofdiscretion or independent judgment”. Vide “Judicial Review ofAdministrative Action” by S. A. De Smith (Ed. 3 page 59). The fact thatthere is temporary absence of a Chairman by reason of death, resignation orremoval from office does not render the panel powerless. Its jurisdictioncontinues to exist. Furthermore in this case there is no proof adduced that aChairman did not function in February 1968. The learned Judge wastherefore correct in his decision that a panel of conciliators was in existencefor the Devinuwara Town Council with power to decide the dispute betweenthe parties to this case.
The next question that arises is whether an action had been in factinstituted or whether, as counsel for the Plaintiff-Appellant contended, theseproceedings were merely a continuation of the original executionproceedings. Section 247 of the Civil Procedure Code gives the judgment-creditor the right to “institute an action within 14 days” from the date of theorder complained of. The question then arises as to whether such an actionfalls within the purview of section 14(l)(a) which states that no proceedings“shall be instituted in, or be entertained by a civil court” unless the personinstituting produces the necessary certificate from the Chairman. The mannerof instituting a regular action is set out in section 39 of the Civil ProcedureCode. It states that “every action of regular procedure shall be instituted bypresenting a duly stamped written plaint to the Court or to such officer whomthe court shall appoint in this behalf’. I have no doubt that this action
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conforms to the provisions of section 39 and the plaint conforms to section40 of the Civil Procedure Code. There is also another reason for stating thatan action has been instituted. This action under the provisions of section 147has been combined with a Paulian action which is not a step in executionproceedings. It is a special remedy having its own consequences.Furthermore this action is mainly directed at the 2nd Defendant who is thevendee on deed P7 and who was not a party to the earlier proceedings. Anew action therefore had to be brought to obtain relief against him. In anaction under the provisions of section 247 the judgment-debtor is not anecessary party – Panditha v. Dawoodbhoy5. It is only when it is combinedwith a Paulian action that the judgment-debtor becomes a necessary party.Haramanis v. Haramanis (supra). It is therefore clear that an action has beeninstituted within the meaning of section 14(l)(a) of the Conciliation BoardAct, and therefore could not have been instituted by a plaintiff-appellantwithout the necessary certificate. At the time of the institution, a Court isunable to decide whether a certificate is necessary or not. It has to await thenecessary evidence. Once it is proved to the Court’s satisfaction that thenecessary certificate has not been produced, the Court has no power toentertain it any further. I must necessarily dismiss it. The Court must alsobear in mind the fact that section 18 of the Conciliation Board Act providesthat that Act shall have effect notwithstanding anything to the contrary in anyother written law. In the circumstances I hold that the Court had nojurisdiction to entertain this action.
Where the Court’s jurisdiction is challenged by a plea based on theprovisions of section 14 of the Conciliation Board Act, it is the duty ofCourt to decide this question first as it will be futile for the Court to enterinto inquiry into other issues when it has no power to do so. Any answergiven to other issues will have no legal consequences. The reason for theprovisions of section 76 of the Civil Procedure Code which states that adefendant who disputes the jurisdiction of a Court must do so by a separateand distinct plea, is obvious. This section read together with section 71 ofthe Courts Ordinance (Cap. 6) makes it abundantly clear that jurisdiction of aCourt if challenged must be first decided before it can entertain the case. Inthe course of the argument, counsel for the Appellant referred to the fact thatthe provisions of section 247 of the Civil Procedure Code required an actionto be instituted within 14 days of the order in a claim inquiry and thereforehardship would be caused to any judgment-creditor who has first to obtain acertificate from the appropriate Conciliation Board, because that mustnecessarily take considerable time extending beyond 14 days. It is preciselyto avoid such hardship that the Conciliation Board Act by the provision ofsection 15 thereof provides that in computing the period of prescription inregard to any cause of action, the time taken in proceedings before aConciliation Board in regard to that cause of action “shall not be taken intoconsideration notwithstanding anything to the contrary in any other written
5(1939) 40 N.L.R. 191.
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law”. Prescription as used in this section, only means any period oflimitation, such as the period of limitation of 14 days referred to in section247 of the Civil Procedure Code. By reason of the provisions of section 16 ofthe Conciliation Board Act, no hardship as envisaged by the counsel wouldin any event be caused to a judgment-creditor, I therefore hold that thelearned Judge should have first decided issue 7 as a preliminary issue andfollowing his finding on that issue be should have dismissed the entire actionwithout inquiry into the other issues.
For these reasons I dismiss the Plaintiff’s appeal without costs.WlMALARATNE, J. -1 agree.
TtitaWELLA, J. -1 agree.
Appeal dismissed.