Haramanis V. Haramanis

[FULL BENCH.]

Present : The Hon. Sir Joseph T. Hutchinson, Chief Justice,

Mr. Justice Middleton, and Mr. Justice Wood Renton.
HARAMANIS v. HARAMANIS.

D. C, Negombo, 6,525.

Action under s. 247, Civil Procedure Code-Question of fraudulent alienation-Adding of judgment-debtor as a party-Pauliam action- Civil Procedure Code, ss. 14, 18, and 243-247.

    Held (by HUTCHINSON C.J. and MIDDLETON J., dissentients WOOD RENTON J.), that in an action under section 247 of the Civil Procedure Code, where the claimant bases his title to the property seized on a deed of transfer executed by the judgment-debtor, it is competent for the judgment-creditor to claim a declaration that such deed was executed by the judgment-debtor with a view to defraud creditors, and is therefore null and void.

    In such a case the grantor of the deed (judgment-debtor) should be joined as a party to the action, and where he is not already joined, the Court may add him as a party, under section 18 of the Civil Procedure Code.

    ussen Lebbe v. Daniel Dias1 and Fernando v.. Joodt 2 over-ruled.

    Thedefendant obtained judgment against one Ungappu in C. E., T. Pasyala, 3,200, and issued writ and seized certain immovable property on May 15, 1906, which was claimed by the plaintiff, who

Foot Notes:

1 (1906) 2 Bal. 41
2 (1906) 2 Bal. 139.

based his title on a transfer (No. 6,580) executed by the said Ungappu on May 14, 1906. At the claim inquiry it was agreed that as the judgment-debtor was in possession of the property that the claim should be dismissed. Thereupon the claimant brought this action under section 247 of the Civil Procedure Code for a declaration that the property was not liable to be seized and sold under the above writ. The defendant (judgment-creditor) alleged the said transfer was executed by the judgment-debtor fraudulently and without consideration, with the object of defeating his creditors.

    At the trial the following issues were framed: -

    (1) Did the plaintiff acquire title by the deed pleaded in the first paragraph of the plaint?

    (2) Was the transfer in favour of the plaintiff fraudulent and executed without consideration and with the object of       defeating the defendant in executing his writ in case No. 3,200 of the Court of requests of Pasyala?

    (3) Has the plaintiff sustained any damages?

    The District Judge (A. de A. Seneviratne, Esq.) held that it was not competent for the defendant to raise the second issue in this action, and that the answer disclosed no defence. He accordingly entered judgment in favour of the plaintiff as claimed with costs.

    The defendant appealed.

    H. A. Jayewardene, for the defendant, appellant.

    A, St. V. Jayewardene, for the plaintiff, respondent.

Cur. adv. vult.

    October 10, 1907. HUTCHINSON C.J.-

    The appellant, who is the defendant in this action, was execution-creditor in a previous action; in that action he took out a writ of execution, under which a certain land was seized in execution on May 15, 1906. The respondent thereupon put in a claim to the land under section 241 of the Civil Procedure Code; at the investigation of the claim it was agreed that as the judgment-debtor was in possession of the land the claim should be dismissed, and it was dismissed accordingly. The respondent then brought this action against the execution-creditor in accordance with section 247 of the Civil Procedure Code, alleging that he was the owner of the land by virtue of a deed dated May 14. 1906 (the day before the seizure), and claiming a declaration that he was entitled to have the land released from seizure.

    The defendant filed an answer admitting the bare execution of the plaintiff's deed, but denying that the plaintiff thereby became the owner of the land, and alleging that the deed was fraudulent and

without consideration, and executed with the object of defeating him in the execution of his writ; a

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