038-NLR-NLR-V-14-RAMANATHAN-CHETTY-v.-TAMBYAH-et-al.pdf
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Aprils, 1912
Present: Middleton J. and Van Langenberg A.J.RAMANATHAN CHETTY v. TAMBYAH et al
D. C. Jaffna 7,310.
Writ of sequestration—Seizure of movables—Manual—Private sale afterseizure—Purchaser buying without knotvledge of seizure—CivilProcedure Code, ss. 227, 236, 653, 657, and 661.
The Fiscal, entrusted with a writ of sequestration, did not placethe property sequestered—a brig—in the custody of one of hisofficers, and there was nothing to indicate that the brig was underseizure. The judgment*debtor sold the ship after the “ seizure ” toa person who had no knowledge of the seizure.
Held, that the provisions of section 236 of the Civil ProcedureCode did not affect the purchaser’s title.
Middleton J.—The seizure of movable property under section227 of the Civil Procedure Code must be manual, i.e., there must-be. an actual and effective seizure sufficient to show to any personinspecting the ship for the purpose of purchase that the ship was incustodia Ugis.
'JpHE facts are fully set out in the judgment of Middleton J.
Bawa, for the plaintiff, appellant.—There was no proper sequestra-tion of the brig. Form No. 38 of the Civil Procedure Code (ScheduleII.), which has to be read with Form No. 104, commands the Fiscalreceiving a writ of sequestration to retain and' secure the goodssequestered. The Fiscal did not do so. There was nothing in thebrig to show that it was under seizure.
Under section 227 the seizure of movable property has to bemanual; there must be actual seizure, and the attaching officer mustkeep the property in his custody or in the custody of his officers.See Pereira's Institutes of the Laws of Ceylon, vol. /., p. 327.
The plaintiff bought the ship without any notice of the seizure.The maxim mobilia non habent sequalam applies. See Ramen Chettyv. Campbell
Balasingham, for the first defendant, respondent.—Sequestrationof movables has to be effected in manner provided by section 227(see section 657).
* Section 227 gives the Fiscal the liberty to do one of three things :
The Fiscal may keep the property in his own custody, if either thewrit-holder or the debtor advances or secures the necessary expensesl{1896) 2 N. L. R. 94.
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therefor ; (2) the Fiscal may, if the owner or possessor or writ-holder APril t'-'J tgive security, permit him to take charge of the property until sale ; Hamanathanor (3) the Fiscal may, if such expenses are not advanced or secured,uiieuy ».
or if the security is not given, make a special return thereof to the >liahCourt ; in such a case the Fiscal is not responsible for the duecustody of the property.
Jt is clear, therefore, that for a seizure to be “ manual ” within themeaning of section 227 it is not necessary that the attaching officershould keep the property in his custody.
The Legislature has purposely modified the words of the corres-ponding section (269) of the Indian Code, which runs as follows :
“ The attachment shall be made by actual seizure,, and the attachingofficer shall keep the property in his own custody.” But even underthe Indian Code it was held that actual seizure was not necessary.
See Toolsa v. The Bombay Tramway Co.,1 Multan Chand v. Bank ofMadras.*
The word “ retain ” in Form 38 of the Civil Procedure Codecannot have the meaning of keeping in actual possession, for in theform the word “ retain ” refers to lands as well as goods. In thecase of lands the Fiscal never remains in possession after seizure.
The maxim mobilia non habent sequalam does not affect tosection 236 of the Civil Procedure Code.
Bawa, in reply.
Cur. adv. vult.
April 5,1911. Middleton, J.—
This was an action under section 247 of the Civil Procedure Codeby a claimant against a judgment-debtor, seeking that he may bedeclared the owner of the brig No. 144 called “ SanthanamariaNayaki,” and for damages at Rs. 75 per mensem from April 11,1910,till restoration for the seizure.
In action No. 6,979, D. C., Jaffna, the first defendant obtainedjudgment against the second defendant, and under writ issuedtherein seized the brig as the property of the second defendant onApril 11, 1910. The plaintiff claimed the brig by purchase from thesecond defendant.
The first defendant alleged that the sale to the plaintiff wasfictitious, and made with a view to defraud the first defendant ofthe amount due on his judgment in No. 6,979, D. C., Jaffna, andclaimed the dismissal of the plaintiff’s action, and in reconventionthat plaintiff be adjudged to pay to the first defendant the sum of75 cents per diem for watching the said brig from April 16, 1910.The second defendant did not answer.
1 11 Bom. 448.
4 27 Mad. 346.
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April £, 1911
Mn>D£BXON
J.
Ramanathan
Ghetto v.Tatnbyah
The following admissions were made on the settlement ofissues :—
The boat was sequestered on an order of sequestration
dated November 10, 1909. The sale to the plaintiff’svendor Chelliah by Gabriel was on February 14, 1910.
On March 31, 1910, the plaintiff bought it from Chelliah.
On Aprii 11, 1910, it was seized for the decree-holder in
6,979.
It was claimed by this plaintiff on April 19, 1910. The
boat was registered at the Customs on January 12, 1910,in the name of Gabriel. The subsequent sale was dulyentered in the Customs Register. .
It .was further admitted that neither the judgment-creditor
nor the debtor gave security to the Fiscal when the boatwas sequestered, and also the defendant obtained judg-ment against Gabriel on February 10, 1910.
Issues :—
Did the Fiscal take possession of the boat after sequestra-
tion, or did it remain in the possession of Gabriel afterthe sequestration ?
In whose possession was the boat when it was sold by
Gabriel to Chelliah on January 14 ?
Is the sale by Gabriel to Chelliah or by Chelliah to plaintiff
void ?
The District Judge held that the Fiscal in seizing the propertyunder the order of sequestration and making a return to the Courthad sufficiently complied with section 227 to render the seizure avalid one; that the seizure was a continuing one ; that the judgmentdebtor knew of it, and having sold at his peril the sale was voidunder section 236.
In his judgment, however, the District Judge does not considerthe position of the purchaser from the judgment-debtor or his vendee,the plaintiff in this case. It is not proved or admitted that theplaintiff or Chelliah, his vendor, knew of, or had reason to know of,the seizure under the sequestration.
In my opinion the seizure of movables to bind a third party mustbe an effective seizure, that is to say, there must be something done,or apparent, to show it, or proof of, or inference of, knowledge onthe part of the third party that the property seized was in custodialegis.
In England the Sheriff leaves a man in possession, of in the caseof an Admiralty seizure of a ship the warrant is nailed to the mastand a man put in possession. In the present, case the Fiscal madethe seizure of the ship on the writ of sequestration on November 10,1910, and left the judgment-debtor in possession without security,and to indicate the acknowledged ineffectiveness of his act made a
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fresh seizure on the writ of execution unde the judgment in D. C. April S, lollJaffna, 6,979, on April 11, 1910, after the sale by the judgment- Ml HOUSTONdebtor to the plaintiff’s vendor Chelliah, and after the sale byCheiliah to the plaintiff. Sequestration under section 653 of the itamanathanCode is by section 657 to be made in the manner provided forseizure of property preliminary to sale in execution of a decree formoney, and by section 661 subsequent seizure of the property underthe plaintiff’s decree is unnecessary. The property is considered toremain in custodia legis.
Under section 227, which would be applicable in this case, theseizure must be manual. The case of a ship is not specificallyprovided for, but I should read the word “ manual ” to mean anactual and effective seizure by some manual act indicative of theseizure, and sufficient to show to any person inspecting the ship forthe purpose of purchase that the ship was in custodia legis.
Section 236, in my opinion, formed ‘on the context of the Code,applies both to seizure in execution and on sequestration undersection 653, and makes sales pending seizure void if the seizure iseffected and made known in manner “ hereinbefore provided.”
As regards the manual seizure under section 227, there is nomanner provided for making known the seizure, but I think itsactuality should be apparent. But even without this section, Ithink that any sale of property in custodia legis would be held voidby a Court, if it wa§ proved that the purchaser was aware that theproperty was in custodia legis.
The options given to the Fiscal under section 227 include impliedlythe right to pay a person to take charge of the property seized, assuch charges if not paid by the debtor are a first charge on theproperty seized.
The Fiscal here did nothing to indicate his seizure, but as Iunderstand, made a special return to the Court, leaving the judgment-debtor in possession without security, and when he got the writ ofexecution made a fresh seizure. In doing so he showed that he didnot consider the property in his custody, as section 651 obviatesthe necessity of a fresh seizure.
In my opinion the ship was not under seizure when sold by thejudgment-debtor to Chelliah, or when sold by Chelliah to theplaintiff, and even if it were, the sale ought not to be held voidunder the circumstances present here, unless it is proved that thepurchaser knew or had reason to know of the seizure.
In my opinion the judgment of the District Court must be setaside and the judgment entered for the plaintiff, declaring him theowner of the ship in question, with costs in both Courts but as thequestion of damages claimed in the plaint and by reconvention hasnot been considered in the Court below, I would send the case backfor the trial of any issues on these questions that may be raised bythe parties, if the parties desire it,
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April 5jun Van Langenberg A.J.—
BamanaHtan am of the same opinion. Both Chelliah and the plaintiff wereTambyah purchasers for value. The record does not show what the Fiscal'sofficer did when he purported to execute the writ of sequestration.It is clear, however, that when Chelliah and the plaintiff bought, thebrig was not in the custody of the Fiscal or of one of his subordinates,and there was nothing to indicate that the ship was under seizure,nor has it been proved that either of them had knowledge of theseizure. In these circumstances, it seems to me that section 236of the Code will not affect the plaintiff’s title.
Sent back.