051-NLR-NLR-V-39-JULIUS–et-al.-v.-PODISINGHO-et-al.pdf
164
KOCH J.—Julius v. Podisingho.
Present: Abrahams, C.J. and Koch J.
JULIUS et al. v. PODISINGHO et al.
303—D. C. Galle, 31,724.
Action under section 247 of Civil Procedure Code—Unsuccessful claimant'saction—Defence of judgment-creditor—Plea of jus tertii.
In a 247 action brought by an unsuccessful claimant the judgment-creditor is not entitled to set up the plea that the property seized belongs,to a'party other than the judgment-debtor.
PPEAL from a judgment of the District Judge of Galle.
B. Wikramanayake, for plaintiffs, appellants.
N. E. Weerasooria, for defendants, respondents.
Cur. adv. vu It.
February 16, 1937. Koch J.—
This appeal raises some interesting and controversial points.
The facts briefly are that the first respondent having obtained a decreefor costs in D. C. Galle, No. 23,119, against the second respondent in thatcase issued writ and seized the right, title, and interest of his judgment-debtor to a land called Ihalaweyamulla. The plaintiffs in this case, whoare the appellants, claimed to be in possession of an undivided |ths shareof the land seized, but the claim was dismissed with costs. The plaintiffs,thereupon, instituted these proceedings under section 247 of the CivilProcedure Code against the defendants—the successful judgment-creditors and the judgment-debtor—to vindicate their rights. It is notin evidence what reasons the learned Judge had for dismissing theplaintiff’s claim, but presumably, the dismissal was due to his not havingbeen satisfied that the plaintiffs were in lit dominus possession of the shareclaimed at the date of the seizure. I say this because in the vast majorityof cases the only matter considered at an inquiry in claim proceedingsis that of possession at the date of seizure. This possession need not havebeen long-sustained nor lawful; sufficient it would be, however short its' duration, if it were independent of the judgment-debtor. The claimJudge would have no alternative but .to uphold the claim if possession ofthis nature has been established, however strong the judgment-debtor’stitle may be or however weak the plaintiff’s..
The unsuccessful claimants have in these proceedings averred in theirpleadings a title to this share derived from the judgment-debtor—thesecond defendant—under a deed of transfer No. 15,900 dated July 20,1928, i.e., four years prior to the issue of writ and seizure. They furtheraver that they were in possession of this share at the time of seizure.They further state that “ a cause of action has accrued to them to suethe defendants to establish a title to the said interest ” and finally pray thatthey be declared entitled to “ the share and interest aforesaid ”.
The first respondent—first defendant—in his answer impeached thetitle of the plaintiffs on the ground that the deed pleaded was executed infraud – of him. He thus seeks to introduce a Paulian action into theseproceedings, but omits to make a very necessary averment that his costs—the judgment-debt—have not been paid and are still owing.
KOCH J.—Julius v. Podisingho.
165
Whether this could be done was a much debated question. In Fernando
v. Joodt1, Wood Renton J. was strongly of opinion that the judgment-creditor cannot be allowed to raise this issue, and that this can only bedone in a properly constituted Paulian action. Pereira J., in 5 Tomb. 9,said that the impeachment of a deed as fraudulent is not strictly inci-dental to an action under section 247 of the Civil Procedure Code butmore properiy ought to form the subject of a distinct action to which
the grantor should be a party. The same Judge, however, in Ossen.Lebbe v. Daniel Dias *, countenanced such an issue in proceedings under 'section 247 when all the parties were before the Court, and Wood RentonJ., in Muttiah Chetty v. Rajah. ’, was willing to permit that issue in anaction under section 247. In an authoritative judgment of threeJudges the case of Haramanis v. Harqmanis' left very little doubt as tothe inclusion of such an issue in proceedings under section 247, so thatone may now consider the law fairly settled that this point can be raised,by the judgment-creditor in proceedings of that nature.
The learned District Judge, however, without going into this issuedismissed the appellants’ action on the ground that at the date of seizurethe title was in a third party, viz., the second defendant’s son-in-law, oneWijeris, who held a deed from the judgment-debtor, prior in date and regis-tration to that held by the appellants. It is submitted by the appellantsthat Wijeris is not a party to this case and that all the plaintiffs need dois to show that they have title superior to that of the judgment-debtor.In fact, it is urged that this has been more than accomplished as it isthe judgment-debtor himself who transferred the rights the plaintiffs claimunder the deed to which I have referred, four years previously.
On the other hand, Mr. Weerasooria submits that there is no suchthing as superior and weaker title ; a person has title or no title, because,says he, the title can only be in one person. No doubt, theoretically,Mr. Weerasooria is right but in practice how can such a pronouncementbe made unless and until every single claimant to that title is before theCourt and all the titles investigated and a verdict given ?
There are three types of titles which are generally recognized in Ceylonas being safe, viz., (1) title under a partition decree, (2) a purchase fromthe Municipal Council when the property concerned has previously vestedin the Council for arrears of rates, and (3) a settlement under the WasteLands Ordinance. But even in these cases, however secure such titlesmay primi facie appear to be, they may be successfully attacked on thegrounds respectively that the formalities prescribed prior to the sale inpartition proceedings have not been complied with, or that there is amaterial defect in the conveyance in favour Of the Municipal Council orby the Council, or that the settlement in proceedings under Ihe WasteLands Ordinance has not been made after an inquiry.
The plaintiffs’ answer to the first defendant’s contention appears fromthe proceedings to be that the very deed on which the first defendantis relying to show that his judgment-debtor had no title at the time of
3 4 c. w. R. if8.
* 10 N. L. R. 332.
2 Bal. 139.
2 Bal. 41.
166KOCH J.—Julius v. Podisingho.
the transfer to the plaintiffs is a deed executed without consideration andin trust. Certain mortgage bonds have been produced by the plaintiffsto show that the judgment-debtor, in spite of this conveyance, remainedin possession and treated with the property as though he were the owner.It would, therefore, be an open question whether the earlier deed can beregarded as divesting the judgment-debtor of his title. If it be regardedthat the deed does not divest, the plaintiffs clearly hold the title.
In the Laws of Ceylon vol. II., the author says that a plaintiff whoseeks for a declaration of title against a third party can successfully showthat the defendant has “ no title or a weaker title ”. This is supportedby the ruling in Appuhamy v. AppuhamyHutchinson C.J. in de Silvav. Gunasekeraobserved that the defendant can succeed—putting outof consideration the issue on prescription—by showing “ a good papertitle and that the plaintiff has no better title ”. This view is supportedby Pereira J. in Goonesekere v. Fernando3 who declares that the defendantcannot succeed unless he can justify the ouster “ by proof that at the dateof ouster he had a superior title or acted under the authority of somebodyhaving a superior title.”.
I-am therefore of opinion that if it came to a question of title all theplaintiffs would have to establish is title superior to that of the judgment-debtor. The fact that a third party had title prima facie superior to thatof the plaintiffs is immaterial (Banda v. Mahatmaya *).
This brings me to the last point as to what precisely has to be establishedby an unsuccessful claimant who figures as plaintiff in an action undersection 247.
Section 247 of the Civil Procedure Code lays down that the party againstwhom an order is made at the claim inquiry may institute an action“ to establish the right ” which he claims to the property in dispute, andsection 243, in referring to what the claimant would have to establish at' the claim inquiry, says that the claimant would have to adduce evidenceto show that at the date of the seizure he had some interest in, or waspossessed of, the property seized. It would therefore appear that, freefrom any complications, a plaintiff in an action under section 247should succeed if he establishes the right he claimed at the claiminquiry.
I have often heard the argument that although the material issue at aclaim inquiry is that of possession, the case is different when the partiesare against each other in an action under section 247, and that in suchan action the question of possession is submerged in the bigger issue oftitle. I do admit that in the great majority of cases this is so, butthe reason must be appreciated. The reason is that in all these casesthe title of the judgment-debtor is expressly raised by the judgment-creditor and the conflict must perforce centre round the question ofsuperiority of title. In other cases the claimant himself sets up aninterest—title—at the claim inquiry, and this interest he will have to
1 2 s', c. c. ci.
' 3 A. C. ft. JU.
2 C. .1. f. W.
1C X. L. R.
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KOCH J.—Julius v. Podisingho.
establish in the action under section 247. (Vide (1) Wijewardena v.Maitland (2) Abdul Coder v. Annamally(3) Dissanayaka v. Baban %
Samaranayaka v. Sidembrem Chetty(5) Abayaratne v. SupramaniamChettyz, (6) Tamel v. Palaniappa Chetty “.)
In this case the plaintiffs have prayed for more than they need havedone. They would have been quite in order had they confined theirprayer to have it declared that they were in possession ut dominus at thedate of seizure and that the share which they possessed should be releasedfrom the seizure. This however will not prevent the Court from grantingthe lesser relief, for it has been held that actions under section 247 of theCivil Procedure Code are not exempt from the general rule that theCourt has power to give less than is prayed for (Siyadoids Appu v.Wannigasekera ”). It was open to the first defendant, if he was in a positionto do so, to have claimed superior title in his judgment-debtor and thusforce an issue on title. He, however", did not do this for obvious reasons.Three issues were accordingly framed, one of them being whether theplaintiff had title to maintain the action. ^The learned District Judgeheld against the plaintiff on this issue and dismissed his action for thereason, as he says, that the title of the judgment-debtor had previouslypassed to another.
I am well aware of instances where a plaintiff’s action under section 247has been dismissed on the ground that he had no title at the date of seizure,,but these are cases where the plaintiff has compromised himself byalleging title in another and did not have, at the date of seizure, theconveying deed from that other—notoriously a Fiscal’s conveyance.(Vide Abubaker v. Tikiri Banda".) •
I cannot see how this judgment of the learned District Judge can, inview of what I have stated, be sustained. Further, it would be mon-strous to permit the first defendant, who, on his own showing, had seizedthe right, title, and interest of the judgment-debtor on the footing thathis debtor had such interest, later to set up the defence that in point offact his judgment-debtor had no such interest at the date of seizure.The first defendant has by his act jockeyed the plaintiffs into assertingtheir possession in a claim and he cannot now be allowed to defeat by thismeans the plaintiffs from vindicating that right in the present action.He is hoist with his own petard and must take the consequences.
The first issue must be answered in favour of the appellants, and theappeal allowed with costs.
The first respondent will pay the appellants their costs of the contentionin the District Court and the case will be remitted for determination on theremaining issues.
Abrahams C.J.—I agree.
Appeal allowed.
3 C.L. R. 7.
3 2 .V. L. R. 166.
3 1 Matara Cases Jill.
6 N. L. R. 364.
39/16
3 2 Bal. 33.
• 9 N-. L. R. 371.
» 3 Tamb. 10S.
3 29 -V. t. R. 132.