SADRIS APPU et al. v. CORNELIS APPU et al.

SADRIS APPU et al. v. CORNELIS APPU et al.

D. C. Galle, 7,096.

Estoppel-Judgment-creditor allowing his own property to be sold as . property of his judgment-debtor-English Law-" Intentionally " -Evidence Act, section 115.

Some of the plaintiffs in this case were the execution-creditors, and the first defendant was the execution-debtor in another case. On a writ issued against him by his execution-creditors in the other case the first defendant pointed out for seizure and sale by the Fiscal a land belonging to the execution-creditors themselves. The execution-creditors did not object to the sale, but allowed it to proceed, and the property was purchased by the second defendant at the Fiscal's sale, and he sold it to the first defendant. In an action by the plaintiffs against the defendants to vindicate the said land-

Held (affirming the judgment of the District Judge), that the plaintiffs who were execution-creditors in the previous action were estopped by their conduct from showing that the property, at the date of sale, was their property and not the property of their judgment-debtor, the first defendant.

LAYARD, C.J.-Section 115 of "The Evidence Act" enacts the same law as the English law on the subject of estoppel.

APPEAL from a judgment of the District Judge of Galle.

Some of the plaintiffs in this case were the execution-creditors, and the first defendant the execution-debtor in another case. When writ issued at the instance of the execution-creditors in that case the judgment-debtor pointed out to the Fiscal for seizure and sale a land belonging to the execution-creditors, who allowed the sale to proceed without any objection, and the property was purchased by the second defendant, who sold it to the first defendant. The plaintiffs instituted this action against the defendants to vindicate the land sold by the Fiscal. The District Judge held that as many of the plaintiffs as were execution-creditors in the previous action, were estopped by their conduct from claiming their shares in the land. The plaintiffs appealed.

H. J. C. Pereira, for plaintiffs, appellants

 H. A. Jayewardene, for defendants, respondents.

12th October, 1905, LAYARD, C.J.-

The plaintiffs, twenty-nine in number, who are co-owners, instituted this action to recover the land claimed in the plaint, and the District Judge on the 29th day of March, 1905, gave judgment for plaintiffs, excepting the shares claimed by the appellants, the first, third, eleventh, sixteenth, and eighteenth plaintiffs, and the first defendant was decreed entitled to these shares. The District Judge has decided that the first defendant surrendered for seizure and sale under a writ issued against him at the instance of the appellants the land claimed by the plaintiffs in this suit, although the first defendant had no title to the same, it being the property of the plaintiffs. The land was sold under the appellants' writ, and at the Fiscal's sale was purchased by the second defendant, who subsequently sold it to first defendant. The District Judge has held that the appellants cannot now claim their interest in the land sold under the writ, as the sale was confirmed by the Court and is therefore binding on the appellants, who were parties to the suit under which the execution issued. The respondents' counsel supports the judgment of the District Judge on the broad principle that the appellants have by their act in allowing the property to be sold under their writ, and by their omission in not staying the sale under their writ, caused or permitted the purchaser at such sale to believe that the property was not the appellants' property, and to act upon such belief, and that they cannot be allowed, in this suit between themselves and the purchaser at the Fiscal's sale and his vendee, to say that the property is their property and not the property of their execution-debtor, the firs

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