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SILVA v. MENDIS
NLR5V252
SILVA v. MENDIS.
D. C., Galle, 5,342.
Civil Procedure Code. ss. 247, 363-Action by claimant in execution-Refusal of Court to stay gale pending result of trial-Sale of property before trial of claimanl's action-Proper course to follow when claimant's title is good.
Where plaintiff's immovable property has boon wrongfully seized under a writ, in execution of a judgment in favour of a third party, and the plaintiff sues the execution-creditor, but before the case comes on for trial the property is sold under the defendant's writ,-
Held, that plaintiff is entitled to a declaration that at the date of the action the property was not liable to be sued and sold in execution of the defendant's writ, so as to leave the plaintiff to have such benefit from the declaration as he could.
Abdul Cader v. Annamalay. 2 N. L. R. 166. explained.
ACTION that four-fifths of a house be declared not liable to be sold in execution of defendant's writ, and for damages. It appeared that the house belonged to one Andris, who died intestate, leaving him surviving his widow and five children, one of whom was Carolis alias Kaluappu. The widow died intestate, and each of her children inherited one-fifth of the house. All of them, except Carolis, by deed dated 6th February, 1896, purported to convey nine-tenths of the house to Andris, who, by deed dated 12th June, 1806, conveyed the same to plaintiff.
Defendant, having obtained judgment against Carolis in suit-No. 3,820 of the District Court of Galle, pointed out for seizure and sale in execution four-fifths of the house as the property of Carolis. Plaintiff, having unsuccessfully claimed it, sought now to establish his title to it under section 247 of the Civil Procedure Code, and to recover damages consequent upon the disallowance of his claim.
The District Judge (Mr. F. J. de Livera) held as follows: -
Though at the date of the cause of the present action plaintiff was entitled to four-fifths of the house, yet after plaintiff's claim was disallowed and before the trial of the present case, the property claimed by plaintiff was sold in execution under defendant's writ in D. C. 3,820, notwithstanding the institution of this suit. In these circumstances, what order am I to make ?
" Bonser, C.J., in D. C, Kandy, 7.816 (2 N. L. R. 166), held that the words in section 247--'the right which he claims to the property in dispute"-means not his right to the property, but the right which he claims in the execution proceedings, namely, the right to have the property released from seizure. Bonser, C.J., further held that the prayer in an action under section 247 should be that
plaintiff is entitled to have the property released from seizure and to have an order on the Fiscal to release the same.
" But the seizure being now merged in the sale, how can. I declare plaintiff entitled to have the property released from seizure and order the Fiscal to release the same ?
I therefore dismiss this action. Parties will bear their own costs. "
The plaintiff appealed, praying for judgment in his favour. The defendant also appealed for payment of his costs.
H. Jayawardene. for plaintiff.-The District Judge ought to have declared that the seizure and sale complained of was bad. In such a case the purchaser would get nothing (Bellamy v. Sobine, 1 De G. & J. 566: Hukm Chund on Res Judicata, p. 682), [Bonser. C.J.-The decree would not bind the purchaser.] Without such a declaration, plaintiff cannot sue the Fiscal or the purchaser. [Bonser, C.J.-I am inclined to think that you are entitled to a declaration for what it is worth.]
Van Langenberg, for defendant_ Plaintiff cannot have such a declaration. Abdul Cader v. Annamalay (2 N. L. R. 166) bars such a course. Plaintiff's only right who to have the property released from seizure, which however did not exist at the time of the trial of this action, because the property had then been sold. It is now impossible to give him the
