MOHIDEEN v. THE PROPRIETOR OF THE KELLIE GROUP

133-NLR-NLR-V-18-MOHIDEEN-v.-THE-PROPRIETOR-OF-THE-KELLIE-GROUP.pdf


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191®.
Present : Wood Benton C.J. and De Sampayo A.J.
MOHTDEEN v. THE PROPRIETORS OF THEKfiLLIE GROUP
148—C. 11. Gampola, 1,601.
Seizure of movables—Action in the Court, of Requests under s. 847 of theCivil Procedure Cods by judgment-creditor—Does an appeal lieagainst a finding of fact without the leave of the Courtt •
. Is m action ra the Court of Bequest a, under section 247, thatcertain movable properties seized in execution are liable, to beseized and sold under the plaintiff s writ, there is no appeal againsta finding of fact without the leave of the Court;
facts appear from the judgment.
F. J. de Saram, {or plaintiff, appellant.
Bartholomeusz, for defendants, respondents.June 30, 1915. Wood Benton C.J,—
Cut. adv. wilt.
.When this case came up before me last week, counsel for, theplaintiff-appellant claimed that, as the action was one under section.247 of the Giyil Procedure Code, he was entitled, without lesrve, toargue the appeal on the. facts as well , as on the law, inasmuch asthis Court had held iq 116—C. B. Matara, 8,0S0,1 that such anaction as this is not a " demand ” within the meaning of section12 of the Courts of Bequests Ordinance, 1895 (No. 12 of lt&5).Mr, E. W. Jayewardene, as omtcti# curias, called my attention tosection 77 of the Courts Ordinance, as re-enacted by section 4 ofOrdinance No. 12 of 1885, and pointed out that, if the argumentof the plaintiff's counsel was sound, the Court of Requests wouldhave no jurisdiction to entertain actions under section 247 at all.Counsel, lor the defendants adopted that point as his own, and 1thought it desirable to put the case down for argument before twoJudges.
VS. C. Mbis.t June 11, 2023.
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Wjp have now had tb# advantage of hearing counsel ^ju both-1915.
sides the question. 1 cannot believe thi t the Legislature wooointent, i to exclude actions under section 247 ft am ih*» jurisdiction Renton O.J.of Coi $ of Beque**® there is nothing inword “ dcn&Mp ” Mohidetn
itself * aioh' compel* as to hold that it has dto.ie so in fact. 9The' _ v. Thrcnrsna t%:n& is enti. iy against Tiny such inter]cre ation of fcjio law?
la my ^ssion th< present appeal cannot be argued on the ?acts. GroupIt mat be*n for argument before n»e on the lat.
33b 2$ >mvavo &J.—
Thi. is an action tender section 247 of the Civil Procedure Codeby- th) erecyijon creditor against the claimant, for the purpose ofhaving it declared that certain movable property seized in execution«belongs ttie execution debtor and is liable to be seized and soldunder the plaintiff's writ. The question has arisen whether in theabsent of leave of Court an appeal lies from the tiudings of fact.
Section IS.^kuh-secaon (I), ot Sic Ordinance No. 12 of 18S5 enactsthat in such circumstances there shall be no appeal " in any actionfor debt, damage, or demand. " In 118—C. R. Matara, 8,050,*which came before me sitting alone, I held that the provision didnot apply to a claim under section 247 of the Civil Procedure Codefor declaration of title to movable property, and * over-ruled anobjection to the appeal in that case. By reason of the fact thatsection 4 of the Ordinance No. 12 of 1895 is omitted in the print ofthe Ordinance in the 1907 edition of the Ordinances, and is insteadembodied in the Courts Ordinance as section 77, I failed to noticethat section, and to consider the effect of it on the construction ofsection 13, sub-section (i). There, toe, the expression " action fordebt, damage, or demand ” occurs, and if the word '* demand ”there be not held to include a declaration of title to movableproperty there would be, no provision whatever conferring juris-diction on the Court of Requests in such cases. It cannot reasonablybe assumed that that was the intention of the Legislature, thoughI confess the language of the Enactment is unhappy. The uniformpractice of the Courts, which in this connection affords a good ruleof interpretation, Has been to allow actions in the Court of Requestsfor declaration of title to movable property as" coining under thehead of 44 demand. M That being so, the same meaning must beattached fb the worddemand in-section 13. sub-section ^1), of
the ’Ordinance. . Having re-considered the point in this case, I thinkmy ruling in the Matara case above referred to is erroneous, and Iagree that the appeal, so far as the facte are concerned, cannot beentertained.
* 5. C. Min., Jtmt U.. 1W.