Silva V. Nona Hamine

[ Full Bench]

Present : Sir Joseph T. Hutchinson, Chief Justice, Mr. Justice
Wendt, and Mr. Justice Middleton.

SILVA v. NONA HAMINE.

D. C, Kalutara, 4,714.

Fiscal's sale-Necessity for conveyance-Seizure-Claims-Action under s. 247-Right at the date of seizure-Ordinance No. 4 of 1867 -Civil Procedure Code, ss. 241, 242, 247, and 289.

    A Fiscal's sale held under the provisions of Ordinance No. 4 of 1867 cannot be proved except by the production of a conveyance duly executed by the Fiscal.

    An unsuccessful claimant to property seized cannot maintain an action under section 247 of the Civil Procedure Code, if he had no right to such property at the date of seizure, even although he might have acquired title subsequently.

    As a general rule, the claims of a litigant must be determined according to his rights and the law existing at the date of action-brought.

THE facts and arguments sufficiently appear from the judgments. Bawa (with him Akbar and V. M. Fernando), for the plaintiff, appellant.

    Wadsworth (with him Elliott), for the defendant, respondent.

Cur. adv. vult.

19th November, 1906. HUTCHINSON C.J.-

    This is an appeal by the plaintiff from the judgment of the .Kalutara Court of Requests.

    The plaint stated that Dona Katherina and her son Don Simon Appu were owners of certain land; that under a writ of execution against Dona Katherina and the heirs of her said son (who are the defendants in this action) the property was duly seized and sold by the Fiscal in 1886 and was bought by Weerasinghe, who sold it to Weerakoon, who mortgaged it to the plaintiff; that the plaintiff sued Weerakoon on the mortgage and obtained a decree against Weerakoon, and thereupon took out execution and caused the property to be seized under the writ of execution; that the defendant then set up a claim to the property, which was upheld by the-Court on 19th July, 1905; and that thereupon the plaintiff brought

this action, in which he asks that the defendant's claim be set aside and that Weerakoon may be declared entitled to the property, and that it may be sold in execution under the plaintiff's writ in his action against Weerakoon.

    The seizure in the action against Weerakoon was in 1905. The present action was commenced on 1st August, 1905. Up to that time no Fiscal's conveyance had been obtained in pursuance of the sale to Weerasinghe in 1886, but in January orders were obtained confirming that sale, and a Fiscal's conveyance was executed to Weerasinghe.

    The Commissioner held that the only question in this action is whether at the date of the seizure in the plaintiff's action on his mortgage the property belonged to the judgment-debtor (Weerakoon), and that so far as the documentary title was concerned it clearly did not.

    The plaintiff's advocate therefore did not form the other issues which had been raised as to Weerakoon's prescriptive title by possession, and the Commissioner accordingly dismissed the action.

    In my opinion the judgment was right. It was argued for the appellant that he had a good title, that Weerasinghe had a good title before the Fiscal's conveyance, and that that conveyance was a mode of proving his title; that under the Ordinance No. 4 of 1867, under which the sale took place, no conveyance was necessary; that the order upholding the defendant's claim may have been right on the evidence then before the Court, but that now the plaintiff on producing the further evidence of the Fiscal's conveyance is entitled to succeed. He would argue, if I rightly understand him, that the knocking down of the land to the highest bidder has the effect under the Ordinance of 1867 of vesting the property in him. I cannot find that that Ordinance gives such effect to a purchase from the Fiscal, and in the absence of any such provision in the Ordinance, I think a purchase from the Fiscal required to be perfected in the same way as any ot

Click Here to Read the rest of this document