035-NLR-NLR-V-01-MURUGAPPA-CHETTY-v.-SAMARASEKARA-et-al.-PAVISTINAHAMI-,-Claimant.pdf
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1894.Oet. 2.
MURUGAPPA CHETTY v. SAMARASEEARA et at.PAVISTINAHAMI, Claimant.
D. C., Negombo, 1,178.
Civil PrOtfdure Code, t. 241—Claim to property seized in execution—Life-
interest of claimant.
Where a seizure in execution had been made of certain lands undera decree which declared them to be specially bound and executable,subject to the life-interest of one D. P. in them, and D. P. applied to theDistrict Court that her claim to have the seizure released and the propertydeclared not liable to be seized and sold in execution be investigatedunder section 241 of the Civil Procedure Code :
Held, that it was not competent to the District Court to refer theclaimant to a separate action, but that her claim was one to be investi-gated and determined under sections 241 and 242.
HIS was an appeal from an order of the District Judge of
Negombo upon a claim made by one Pavistinahami beforethe Fiscal to certain lands seized in execution of a decree enteredin this case against the defendants, declaring that the said landswere “ specially bound and executable for the said decree, subject“to a life-interest of E. D. Pavistinahami in the first ten mentioned“lands.”
The claimant, who was admitted to be in possession of the landsat the time of the seizure, submitted to the Court that the mortgage
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and seizure of the lands were not justifiable under a deed whichshe brought into Court. She prayed for a release of the seizure,and that the lands be declared not liable to be seized or sold inexecution during her lifetime.
The District Judge, relying upon the analogy of section 278 of theIndian Civil Procedure Code and the case of Deefholts v. Peters,reported in 14 Ind. L. R., Calcutta Series, 641, held that thequestion of the extent and nature of the power to deal with theproperty conferred on the grantees of the deed produced by theclaimant, and the effect of the life-interest reserved to her, werenot questions “ responsive to the only tests which the Court is“ empowered by sections 244 and 245 to apply in such an inquiry,“ namely, the tests of possession, and that it is out of place to
T “ attempt to determine such questions by such testsThe
“ remedy is by separate action.’’ He discharged the applicationfor inquiry into the claim, with costs.
The claimant appealed.
Domhorst, for claimant appellant.
Wendt, for respondent (creditor).
Aserappa, for defendant respondent.
Cur. adv. vuU.
2nd October, 1894. Lawrib, A.C.J.—
I am unable to share in the doubts or to appreciate thedifficulties of the learned Judge.
The plaintiff got judgment and applied for and got writ againstthe defendants’ property, lands were seized by the Fiscal, then aman came forward to claim the lands under seizure as his own,denying that they were executable for the debt of the judgment-debtor.
The learned Judge, on the analogy or supposed authority ofIndian decisions, refused to investigate the claim. The IndianCode is, in this matter of seizure in execution, quite differentfrom ours, and the decisions quoted by the District Judge seemto me to have no value to regulate our procedure of seizure andsale by a Fiscal.
It may be that, if a Court directs a sale under section 201, andif the person especially nominated by the Court were in courseof carrying out the Court’s special order, there would be no roomfor a claim by a third party ; indeed, the person nominated by theCourt would have no jurisdiction to try and determine the rightsof claimants. I look ou this as a case of an ordinary seizure: the
1894.
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plaintiff himBelf so treated it. The Code gives a right to thosewho object to a sale in execution to be heard and to have theirclaims adjudicated on.
The order should be Bet aside, and the case sent back forinvestigation of the claim. The appellant is entitled to the costsof the discussion in the District Court and in appeal.
Withers, J.—
It was argued in the first instance that the order before usis not an appealable order, but inasmuch as it discharges theapplication for inquiry into the claim with costs, it finally disposesof the matter, and is therefore obnoxious to an appeal.
As the judgment-creditor took out the ordinary writ againstproperty in execution of a decree he must take the consequences.
By section 241 of the Civil Procedure Code the Court is required,in the event of the Fiscal reporting a claim preferred to propertyor an objection offered to the seizure or sale of property whichhas been seized in execution of a decree, to proceed in a ummarymanner to investigate such claim or objection. Into the natureof his claim or objection I do not propose to inquire. What aclaimant must prove to induce the Court to remove the seizureor to stay the sale is indicated in the sections following the oneabove referred to.
I would remit the case for tjie investigation and determinationof the claim.