NARAYANAN CHETTY v. ELLIS.

NARAYANAN CHETTY v. ELLIS.

D.C., Colombo, 11,003.

Action against Fiscal-Damages for negligently allowing property seized to be removed-Right of Fiscal to plead that such property was not the execution-debtor's property- Civil Procedure Code, s. 226.

To an action for damages brought against a Fiscal for negligently allowing the properly which had been seized by him to be removed by a third party, it is a good defence to show that the property which be had failed to sell was not the property of the execution-debtor.

THE plaintiff in this case, obtained a money decree against one Gauder, a livery stable-keeper of Colombo, and on the 22nd September, 1897, pointed out to the Fiscal for seizure certain horses and carriages then in his possession. The Fiscal seized all the property so pointed out and placed guards in possession and advertised the sale for the 23rd October. On the 29th September another creditor, who had a mortgage decree against the same property, save a hansom carriage which was under seizure. caused the Fiscal to make a second seizure. The sale of the articles thus seized was fixed for the 22nd October, and was duly carried out; but when, the following day, the Fiscal's officer went to sell, under the plaintiff's writ, the hansom carriage left unsold at the previous sale, it had disappeared.

The plaintiff turn sued the Fiscal for the value of this carnage, in that by his gross negligence and irregularity of proceeding be permitted the removal of the said carriage, and the plaintiff thereby lost the benefit of the seizure made, and in consequence he was unable to recover the amount of the said judgment. By reason of the promises plaintiff alleged that he had incurred loss and damages to the extent of Rs. 600.

Defendant pleaded that the plaint discolsed no cause of action, because there was no averment that the carriage in question was, at the time of the seizure, the property of either of the execution debtors and as such liable to be sold in execution of the decree in plaintiff's favour. He denied negligence and irregularity.

The Additional District Judge entered judgment for plaintiff for Rs. 250, as the fair market value of the carriage in question at the time of its seizure, holding that the English cases cited for the defendant-namely, Stimson v. Farnham (7 L. R. Q. B. 175) and Sevi v. Hall (29, L. J. C. P. 127)-were not authorities in support of the proposition that the debtor's ownership of the property seized was an indispensable averment in the plaint; and that even if they were so, the liabilities of the Fiscal, being clearly defined by the local Ordinances, could not be affected by decisions pronounced in England.

Defendant appealed.

Van Langenberg (with Allan Drieberg), for defendant, appellant.

Sampaya (with De Saram), for respondent.

Bonser, C.J.-

I am unable in this case to agree with the law as laid down by the Additional District Judge of Colombo. The case is one of some importance as regards the duties and liabilities of Fiscals.

The plaintiff in this action had recovered judgment against one Gauder, who was apparently a livery stable-keeper, having horses and carriages which he let out for hire. The plaintiff pointed out to the Fiscal for seizure a number of horses and carriages, which he alleged to be the property of his execution-debtor. Amongst these was the carriage, which is the subject of the present action. Whilst this was in the custody of the Fiscal, another creditor who had a conventional mortgage over all this property other than the last-mentioned carriage placed his decree in the hands of the Fiscal for execution, and we are told that the Fiscal went through the interesting process of seizing the property again which was already in his own custody, and thereupon double the number of guards were placed over the property. It seems to me that this was a very useless proceeding, and only resulted in additional expense to

Click Here to Read the rest of this document