KAVIN POLYMERS (PVT) LTD

Vs.

KAHANDAWELA KNITWEAR INDUSTRIES (PVT) LTD AND ANOTHER

SUPREME COURT
ALUWIHARE, J.
DEHIDENIYA, J.
THURAIRAJA, J.
SC/APPEAL/186/2018
WP/HCCA/MT/44/2017/LA
DC MT LAVINIA 4116/03/M
JANUARY 14, 2020

Seizure of property in the execution of a decree-Claim inquiry-Civil Procedure Code, sections 241, 243, 245, 247, 754(2)

When section 245 of the Civil Procedure Code is read with section 247, it is clear that an order made by the court under section 245 is conclusive, subject to the right of the party against whom the order is made to institute a separate action within 14 days of the order to vindicate his rights. No appeal lies against an order made under section 245.

Cases referred to:

1. Marikkar v. Marikkar 22 NLR 438 at 441

2. Muttu Menika v. Appuhamy 14 NLR 329

3. lsohamine v. Munasinghe 29 NLR 277 at 281

4. Marikkar v. Vanik Incorporation Ltd and others [2006] 1 Sri LR 281

5. L.B. Finance Company v. Walisinghe and others [2012] BLR 294

6. Hatton National Bank v. Jayawardane and others [2007] 1 Sri LR 181 at 183

APPEAL from the Judgment of the High Court of Civil Appeal of Mount Lavinia.

Chandana Liyanapatabendy, P.C., with Hansini Bandaranayake and Sanduni Madubashini for the Claimant-Petitioner-Appellant.

Nuwan Bopage with Chathura Weththasinghe for the Plaintiff-Respondent-Respondent-Respondent.

cur. adv. vult.

December 8, 2021

DEHIDENIYA, J.

Plaintiff-Respondent-Respondent-Respondent (herein after sometimes referred to as the "Respondent") instituted action for the recovery of money amounting to 320, 325 USD against the Defendant-Respondent- Respondent-Respondent-Swan Feather (Pvt) Ltd (hereinafter sometimes referred to as the "Defendant"). The District Court of Mount Lavinia delivered the judgement dated 05.04.2011 in favour of the Respondent. The Defendant subsequently filed a notice of appeal but had not filed the petition of appeal. Thereafter the Respondent filed an application to execute a writ against the Defendant. The Defendant objected on the basis that the Defendant Company is not functioning. The learned District Judge, upon an inquiry, issued an order enabling the execution of the writ against the Defendant. At the instance where the writ was to be executed, the fiscal had been informed about the non-functioning of the Defendant Company and that the specific address given by the Defendant Company namely No. 566, Lake Road, Boralesgamuwa is already occupied by the present occupants who claimed that they had no connection with the Defendants. Subsequently, the Respondent again made an application to execute the writ to seize the property; the District Court, after an inquiry, issued the writ. The fiscal, on the said writ, seized 02 vehicles parked

at the same premises. Kavin Polymers (Pvt) Ltd, Claimant-Petitioner- Petitioner (herein after sometimes referred to as the "Petitioner") claims that the said vehicles belong to the Petitioner and made a claim under sections 241 and 839 of the Civil Procedure Code. The learned District Judge, after an inquiry, dismissed the application filed by the Petitioner. Subsequently, the Petitioner filed a leave to appeal application in the High Court of Civil Appeal under section 754(2) of the Civil Procedure Code against the order issued by the learned District judge.

At the stage of considering whether the leave to appeal should be granted, a preliminary objection was brought forth by the Respondent on the ground that, an appeal is not available against the order made under section 245 of the Civil Procedure Code and the Petitioner is not entitled to maintain a leave to appeal application under section 754(2). The learned judges of the Civil Appellate High Court upheld the preliminary objection of the Respondents. Being aggrieved by the very decision of the learned judges of the Civil Appellate High Court, the Petitioner instituted a leave to appeal application from the sai