009-NLR-NLR-V-10-SILVA-v.-NONA-HAMINE.pdf
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1006.
November 19.
[Full Bench.]
Present: Sir Joseph T. Hutchinson, Chief Justice, Mr. JusticeWendt, and Mr. Justice Middleton.
SILVA v. NONA HAMINKD. G.t Kalutara, 4,714.
Fiscal'ssale—Necessityforconveyance—Seizure—Claims—Actionunder
s. 247—Bight at the dateofseizure—OrdinanceNo.4 of 1867
—Civil Procedure Code, ss. 241, 242, 247, and 289.
A Fiscal’s saleheld undertheprovisionsof OrdinanceNo. 4 of
1867 cannot be proved except by the production of a conveyanceduly executed by the Fiscal.
An unsuccessfulclaimanttopropertyseizedcannot maintain
an action under section 247 of the Civil Procedure Code, if he hadno right to suchproperty atthedate ofseizure,evenalthough he
might have acquired title subsequently.
As a general rule, the claims- of a litigant must be determinedaccording to his rights and the law existing at the date of actionbrought.
T
HE facts and arguments sufficiently appear from the judgments.
Bawa (with him Akbar and V. M. Fernando), for the plaintiffsappellant.
Wadsworth (with him Elliott), for the defendant, respondent.
Cur. adv. vult.
19th November, 1906. Hutchinson C.J.—
This is an appeal by the plaintiff from the judgment of the .Kalu-tara Court of Bequests.
The plaint* stated that Dona Katherina and her son Don SimonAppu were owners of certain land; that under a writ of executionagainst Dona Katherina and the heirs of her said son (who are thedefendants in this action) the property was duly seized and soldby the Fiscal in 1886 and was bought by Weerasinghe, wlioc. sold itto Weerakoon, who mortgaged it to the plaintiff; that the plaintiffsued Weerakoon on the mortgage and obtained a decree againstWeerakooA, and thereupon took out execution and caused theproperty to be seized under the writ of execution; that the defen-. dant then set up a claim to the property, which was upheld by theCourt on 19th July, 1905; and that thereupon the plaintiff brought
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this action, in which he asks that the defendant’s claim be set aside 1906.and that Weerakoon may be declared entitled to the property, November 19.and that it may be sold in execution under the plaintiff’s writ in his Hutchinsokaction against Weerakoon.
The seizure in the action against Weerakoon was in 1905. Thepresent action was commenced on 1st August, 1905. Up* to thattime no Fiscal’s conveyance had been obtained in pursuance of thesale to Wesrasinghe in 1886, but in January orders were obtainedconfirming that sale, and a Fiscal's conveyance was executed toWeerasinghe.
The Commissioner held that the only question in this action iswhether at the date of the seizure in the plaintiff’s action on hismortgage. the property belonged to the judgment-debtor (Weera-koon), and that so far as the documentary title was concerned itclearly did not.
The plaintiff’s advocate therefore did not form the other issueswhich had been raised as to Weerakoon’s prescriptive title bypossession, and the Commissioner accordingly dismissed the action.
In my opinion the judgment was right. It was argued for theappellant that he had a good title, that Weerasinghe had a good,title before the Fiscal’s conveyance, and that that conveyance wasa mode of proving his title; that under the Ordinance No. 4 of 1867,under which the sale took place, no conveyance was necessary;that the order upholding the defendant's claim may have beenright ota the evidence then before the Court, but that now theplaintiff on producing the further evidence of the Fiscal’s conveyanceis entitled to succeed. He would argue, if I rightly understandhim, that the knocking down of the land to the highest bidder hasthe effect under the Ordinance of 1867 of vesting the property inhim. I cannot find that that Ordinance gives such effect to a-purchase from tlife Fiscal, and in the absence of any such provisionin the Ordinance, I think a purchase from the Fiscal required to beperfected in the same way as any other purchase (except as regardsthe special statutory provisions as to the ordinary purchases whichwere declared not to apply to Fiscals’ sales). In all cases a formaltransfer was necessary to pass the property. This was so under theRoman-Dutch Law, and no enactment, so far as I can see, hasdispensed with the requirement in the case of sales by the Fiscal.
It was there argued that on the execution of the Fiscal’s transferthe purchaser’s title related back to the date of th'e purchase. Forsome p#urposes that may be so, but I doubt whether it would affectthe rights of third parties who may have intervened in consequenceof the purchaser’s delay in perfecting his title, and in any case it
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I
1006. cannot affect the question in this case, which is, whether WeerakoonNovember 30. had a good title at the date of the seizure. Perhaps, if the purchaserHutchinson had done all that he had to do in order to complete his title, and thec*,1< delay in obtaining the transfer was merely the fault of the Fiscal,the Court might hold that that must be taken to have been done,which ought to have been done, and that the Ordinance should datefrom the sale, or at least from the date when the purchaser had doneall he could to obtain it. But that is not so here.
The appellant also contended that the plaintiff in such an actionas this, which is under section 247 of the Civil Procedure Code,may claim “ to have the property declared liable to be sold inexecution of the decree in his favour, ” and that at the date of thetrial this plaintiff proved that the property was then so liable. Theanswer to that is that the judgment can only declare the rightwhich the plaintiff had at the date of the commencement of theaction, and even assuming that the words <( declared liable ” means“ declared to be liable at the time when the action is brought "and not “ declared to have been liable at the date of the seizure, ”this action must fail, because the plaintiff had no title at the timewhen the action was brought.
I think therefore the appeal must be dismissed with costs.'
Wendt J.—
This case has been reserved for the consideration of three Judgesupon a question relating to the effect of sales in execution and ofthe Fiscal's conveyances granted in pursuance of them. The factsmaterial to the question are shortly as follows. In execution,against one Dona Katherina and her son Don Simon, the Fiscalon the 24th September, 1885, sold the right, title, and interest ofDona Katherina in and to one-third of the garder^ Kiriammawatta,and on 22nd April, , 1886, he sold two-thirds of the garden. Thepurchaser in each case was the execution-creditor (substitutedplaintiff) Don David Weerasinghe, to whom the Fiscal allowedcredit for the prices bid at the sale in reduction of his judgmentamount. In the year 1887 the District Court of Kalutara,. beingthe Court out of which the writ of execution issued, made orderthat the substituted plaintiff had a right to a conveyance of theright, title, and interest of the debtor (sic) in the property sold,and that 11 a conveyance ought to issue to him. *’ But no convey-ance was in fact executed. The purchaser, however, in 1889 sold andconveyed the land to one Weerakoon, who in 1896 mortgaged it tothe present plaintiff. In March, 1905, plaintiff got a decree againstWeerakoon for the mortgage debt. and caused ‘ the Fiscal to seize
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the land in execution, as also one-third of another land named 1907.Mahasekandewatta, which plaintiff alleges was also sold in execution November 19against Dona Katherina and Don Simon and dealt with by the Wendt J,subsequent deeds, but as to which there is as yet no proof. Uponthe seizure the present defendant preferred a claim, which afterinquiry was upheld by the Court on 19th July, 1905. Thereupon .the present action was brought on 1st August, 1905, by the plaintiff,under the provisions of section 247 of the Civil Procedure Code,to have it declared that the properly was liable to be sold under his. writ of execution. The defendants (who are the children of DonSimon, one of them being also wife of Weerakoon) in their answerdated 11th October, 1905, admitted the title of Dona Katherinaand Don Simon, but denied Weerasinghe’s purchase and his transferto Weerakoon. They also pleaded that they “ are the owners of theproperties, and have always been in possession of theni, and that thedebtor never had right, title, or possession. M At'the trial on 12thApril, 1906, plaintiff produced two Fiscal’s conveyances dated 2SrdJanuary, 1906, in favour of Weerasinghe for the shares of Kiriamma-watta. To each of them is attached copy of an order made by theCourt on 5th January, 1906, on the footing that the sales had beenalready confirmed, and allowing Weerasinghe credit* for the purchasemoney and directing the Fiscal to execute the necessary convey-ances. The Commissioner held that it was incumbent on plaintiffto show that .at the date of the seizure under the writ the propertybelonged to his judgment-debtor, and that the execution at a laterdate of the Fiscal's conveyances, which related hack to the dateof the Fiscal’s sales, might afford ground for a fresh seizure, butcould not establish a title in the grantee as at the date of the existingseizure. The plaintiff not being prepared to prove prescriptivetitle in Weerakoon, the action was dismissed with costs. Plaintiffnow appeals.
It was argued for the appellant, first, that the conveyance bythe Fiscal is not necessary to constitute a valid sale of land, but is* merely evidence of the sale, and that therefore the production ofthe document at the trial is sufficient to show that the purchaserwas vested with title from the. date of the action; and secondly,that, assuming the title must be referred to the date of the con-veyances. plaintiff was still entitled to judgment, as it was open *to him, in this form of action, to show that on the day of trial theland was liable to be sold under his writ, although it might nothave been so liable at the date of seizure. The first position, itwas admitted, could not have been • maintained under the lawembodied in the Civil Procedure Code, because section 289 expressly7-
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1906. enacts that the title of the judgment-debtor is not divested untilNovember 19. the confirmation of the sale by the Court and the execution of the ,Whndt J. Fiscal's conveyance. The absence of a similar provision in 41 TheFiscals' Ordinance, 1867 '* (under which the present sales tookplace), while it leaves an opening for Mr; Bawa’s arguments, doesnot, in my opinion, indicate any difference in the law. It is withinmy recollection that the argument was more than once addressed tothis Court, but in every instance the Court refused to accede toit. Certainly no decision recognizing the suggested state of thelaw has been produced, and I do not believe any exists. On thecontrary, there are decisions the other way. In D. C., Matara,34,265 (1), where, the plaintiff claimed title by purchase at anexecution sale against the defendant, but no Fiscal's transfer had -been executed, the Full Court consisting of Clarence A.C.J., Diasand Lawrie J.J., held that parol evidence of the sale had been rightlyrejected, and that plaintiff's .title under the alleged sale failed. InC. R., Galagedara, 36,818 (2), Lawrie J. refused to assent to theview of the Commissioner, ** that the mere fact that the highestbidder at a Fiscal's sale of land is declared the purchaser vests theproperty in him, " and added “ to create title he must- get a transfer.
By the Roman-Dutch Law private sales of immovable property wefenull and void unless made “ before the Court " and the transfer regis-tered and duty paid thereon (Grotius Introd. 2, 5, 13; 2 Kotze’s VanLeeuwen 137), and I gather that sales in execution equally requiredthe written transfer (Juta’s Van der Linden, 2nd ed., 335). Tocome to our own legislation, Regulation No. 6 of 1824, section'24 (theearliest enactment I can find on the subject), and Regulation No. 13of 1827, which repealed it, no doubt required that the Fiscal shall,upon being furnished by the purchaser with the necessary stamp,
“ make out the usual certificate of sale, “ but no form is prescribedand nothing stated as to the effect of it. Then came the OrdinanceNo. 9 of 1836, which dealt with the duties of Fiscal*in greater detail,and which enacted (section 24) that when the price had been paid infull, “ the Fiscal, on being furnished by the purchaser with stampedpaper of the proper amount by law required on conveyances ofimmovable property, shall make out, execute, and deliver to thepurchaser a conveyance of the property according to the Form Chereunto annexed. ” The Form C is substantially that now, in use.After reciting the sale and the payment of the price, it witnessesthat the Fiscal, in consideration of the sum so paid, “ hath sold andassigned, knd by these presents doth sell and assign unto the purchaser,his heirs, &c.," the land in question. The Rules of Court of 11th 1
(1) Civ. Min., September 7, 1888. (2) Civ. Min., September 28, 1888.
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.July, 1840 (wliioh replaced the Ordinance of 1836 when repealed, by Ordinance No. 1 of 1839). and the Ordinance No. 4 of 1867, which19.
in turn replaced the rules, re-enact Hie provision almost verbatim. Wenot J.Although the Ordinance of Frauds and Perjuries (No. 7 of 1840),section 2, apparently refers to Fiscals’ conveyances as “certificates,”that must be due to inadvertence and forgetfulness of the terms ofthe Ordinance of 1836. The Ordinance No. 11 of 1847, passed toremove doubts as to the validity of instruments executed by DeputyFiscals, speaks of them as “ transfers of immovable property.
For these reasons I hold that even prior to the enactment of theCode the execution of the conveyance by the Fiscal was an essentialingredient of the sale of land, and that until such execution thejudgment-debtor remained vested with the title. It is true IHatupon the execution of the conveyance the purchaser, by thedoctrine of relation back, became vested with the title as from thedate of seizure; but that does not help plaintiff in this case.
Appellant’s second point depended upon his establishing a dis-tinction between the case of the decree-holder and that of the claimantwhen plaintiff in an action under section 247. He conceded thatthe right which the claimant-plaintiff has to make out is the same asthat which he set up at the claim inquiry, which again was requiredby section 243 to be a right at the date of seizure. But he arguedthat ebe scope of the creditor-plaintiff's action was “ to have theproperty declared liable to be sold.” Concede for a moment thatthat does not imply a liability at the date of seizure: What is thedate to which the inquiry must be directed ? Not, surely, the dateof the trial of the section 247 action! If it be the date of theinstitution of the action, that is fatal to the present plaintiff, becauseat that date the property was not so liable. No reason whatever .has been urged why the plaintiff in this form of action should beexempt from the fundamental rule, that an action has to be deter-mined according to the rights of the parties as existing at the dateof its institution. No exception to that rule is recognized by theCode, which contains no provision for the pleading or determinationof matters which alter the rights of parties pending action. On thecontrary, the sequence of the enactments which culminate in theaction ucder section 247 renders it impossible to avoid the conclusionthat the rights of the creditor as well as of the claimant must beconsidered as at the date of seizure. To begin with, section 218 -limits the power of seizure and sale in-execution fo “ all* saleableproperty^ belonging to the judgment-debtor, or over which or theprofits of which the judgment-debtor has a disposing power. ”
The creditor must first act within the powers so conferred on him.
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1906. JEEe may then be met by a claim, which may be upheld (consistentlyNovember 19.^ existenee of such an interest in the judgment-debtor) on the* .
Wendt J. ground that the claimant “ had some interest in or was possessedof the property seized." Then follows the action of the creditor..In my opinion, it presupposes a liability to seizure, a rightful seizure,and a wrongful claim—using the term “ wrongful ’’ in the sense thatthe claim cannot be maintained as against the judgment-debtor'sinterest in the property. If one of these elements be negatived theaction must fail. That is the view which I took in Silva v. Kirigoris(1), and further consideration has confirmed me in it. The Indiandecisions support it. The difference between the wording of oursection 247 and that of section, 283 of the Indian Code does not, tomy mind, indicate any intention on the part of our Legislature to-enact a different law on the point, the words “ or to have the saidproperty declared liable to be sold in execution of the decree in hisfavour ”* having apparently been added simply in order to -make themeaning clearer in regard to the remedy of the decree-holder.
I think the appeal should be dismissed with costs.
Middleton J.—
In this case the question is whether the judgment-debtor's title*to the possession as his own property of the land seized in executionlias arisen so as to enable the judgment-creditor to have the propertydeclared liable to be sold in his favour under the seizure he hasmade.
The defect in the judgment-debtor’s title is that the Fiscal’sconveyance to his predecessor in title was not granted until after' hisaction under section 247 was brought.
Under the Roman-Dutch Law (Orotius, bk. II., chapter V., section13; Van der Linden 490-492) formality of conveyance of immovableproperty was' essential to give title. By Ordinance No. 9 of 1836,section 14, rule 24, the Fiscal had to give a conveyance. OrdinanceNo. 7 of 1§40, section 20, speaks of certificate of sale by the Fiscal,and Ordinance No. 4 of 1867, section 56, contemplated Fiscal’sconveyances.
I think therefore it is impossible to say that a legal title accruedto a purchaser under a Fiscal’s sale in 1885 in the absence of someformal transfer by the Fiscal.■f
The judgment-debtor had therefore no legal title to the propertyseized until after the decisipn in the claim inquiry and after actionbrought, when in January, 1906, he obtained an order of the Courtfor a confirmation of the sale and a Fiscal’s conveyance.
(1) (1903) 7 N. L. R. 195.
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If this is so, is the Court entitled under the wording of section 2471906.
to hold the property liable to be sold in execution on the strength November 19.of title accrued to the judgment-debtor pending action ?Middleton
This would be contrary to the general principle that a litigant’s J*claims in an action must be governed by his rights and the lawexisting at the date of action brought.
The property was in the judgment-debtor's possession as his ownproperty (which is the test under section 244 of the Civil ProcedureCode at the time of the seizure), but the defendants put in a claimof title, which was upheld, and no superior title was obtained to itby the judgment-debtor till after action brought. At the date ofseizure then the judgment-debtor had no title, and the action undersection 247 was brought in effect to set aside the order declaring hiswant of title.
I think therefore that the action must be decided on the judgment-debtor's rights at the date of seizure, and as he had no title then, theCommissioner of Bequests was right in dismissing this action, andI would join in dismissing the appeal with costs.
It was argued, however, that the Fiscal's conveyance then grantedenured to the benefit of the judgment-debtor as and from the dateof the actual sale to his predecessor in title, as laid down by BurnsideC.J. in 9 S. C. C. 32, and I conceded to that reasoning before referringthis case to the fuller argument it has received before this Court ofthree Judges.
Having, however, had the advantage of conferring with my Lordand my brother Wendt and hearing further argument, I feel boundt-o admit* that the principle cannot be held to apply in a case likethis, where a competing title was paramount at the date when thecontestatio began
Appeal dismissed.