ABDUL CADER v. ANNAMALAY

ABDUL CADER v. ANNAMALAY.

D. C., Kandy, 7,816.

 

Civil Procedure Code., s. 247-Action there under-What plaintiff should prove and pray for-Court in which action is to be brought-Form of order in claim inquiry.

Where property seized in execution is claimed, and the claim after investigation is disallowed, and the claimant brings an action under section 247 of the Civil Procedure Code, his prayer in the plaint should be for a declaration that he is entitled to have the property released from seizure, and for an order on the Fiscal to release the same accordingly. If he proves that he was in possession of the property at the time of the seizure, he will be entitled to the declaration and order prayed for, unless the defendant counterclaims for a declaration that he is entitled to have the property seized and sold for payment of his judgment debt, and proves that his judgment debtor is the owner of the property.

Per Bonser, C.J.-The action under section 247 of the Civil Procedure Code need not necessarily be brought in the Court which held the inquiry into the claim. If the value of the property seized does not exceed Rs. 300, the action should be brought in the Court of requests, although the original action in which execution issued was in the District Court.

Per Withers, J.-The order in a claim inquiry, being an order like a judgment, should contain a concise statement of the case, the points for determination, the decision, and the reasons. The claim or objection should be clearly defined, and the facts on which the decision is based clearly found.

THE plaintiff in this case claimed certain property seized in execution of a writ sued out by the defendant against a third party. The claim was inquired into and disallowed. He brought the present action under section 247 of the Civil Procedure Code to establish his right to the property seized. He pleaded title acquired by prescriptive possession, but failed to prove such possession, and the District Judge entered judgment against him. The plaintiff appealed.

Sampayo and Wendt, for appellant.

Dornhorst, for respondent.

Cur. adv. vult.

6th October, 1896. Bonser, C.J.-

I am of opinion that the District Judge rightly decided the issue agreed on by the parties, viz., ?whether the plaintiff is entitled to the lands claimed." The plaintiff failed to establish a prescriptive possession.

We sent for the proceedings on the claim inquiry to ascertain who was then found by the District Judge to have been in possession of the property at the time of seizure. They do not assist us.

The District Judge seems to have rejected the plaintiff's claim without assigning any reasons. The question who was in possession at the time of seizure is all important in claim inquiries. If the plaintiff was in possession either by himself or another, the property ought to have been released from seizure, and the plaintiff ought not to have been driven to an action to assert his rights. He was entitled to retain possession of the property until he was evicted by some one with a better title.

In this case the plaintiff has misconceived his rights and placed his claim too high. The " right which he claims to the property in dispute " (section 247) has been held-and in my opinion rightly held-by the Calcutta High Court (15 Calc. 674) to mean not " his " right to the property," but the right which he claims in the execution proceedings, viz., the right to have the property released from seizure.

The prayer therefore of a plaintiff in an action such as this under section 247 should be for a declaration that he is entitled to have the property released from seizure, and for an order on the Fiscal to release the same accordingly.

If the plaintiff proves that he was in possession of the property at the time of the seizure, and that therefore the Court ought not to have refused to release the property, he will be entitled to the

declara

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