LETCHIMANEN CHETTY v. MUTTUSAMY PILLAI.

 

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

and Mr. Justice Middleton.

 

LETCHIMANEN CHETTY v.  MUTTUSAMY PILLAI.

 

D. C., Colombo, 25,257.

 

    Seizure by Fiscal-Property already in his custody under another writ- What amounts to seizure under another writ-Action under s. 247, Civil Procedure Code-Purchase pending seizure-Invalidity- Civil   Procedure   Code,   ss.   236,   241,   247,   657,   659,   660,   661.

 

Where at the instance of the plaintiff in a case the Fiscal had taken into his custody certain movable property on a mandate of sequestration issued against the property of the defendant in the case, and, where pending such sequestration, another judgment-creditor of the same defendant placed in the hands of the Fiscal a writ against the said defendant's property with a request to seize the sequestered  goods,-

 

Held, that the placing of the writ of execution in the hands of the Fiscal ipso facto amounted, in the circumstances, to a valid seizure of the goods, and a sale of the goods after that by the judgment-debtor was void as against such seizure, under section 236 of the Civil Procedure Code.

    Jones v. Atherton,1 Johnson v. Evans,2 Hutchinson v. Johnston,3 Murgatroyd v. Wright,4 and Narayan Chetty v. Ellis 5 followed.
 
    THIS was an action under section 247 of the Civil Procedure Code by the unsuccessful claimant to certain movable property seized under writ in D. C., Colombo, 24,798 C. The facts
 

1 7   Taunton  56.                                                         

2 7 M.  &  G. 240-47.   

3  7 Term Reports 729. 

4 (1907) 2 K. B. 333.

            5 4 N. L. R. 367.

 

 

which  gave   rise  to  the  claim   and  the  proceedings  thereunder are set out  in the following   order of the District Judge (P. E. Pieris, Esq.) adjudicating on the claim (July 15, 1907): -

 

"On March. 18, 1907, certain shop goods valued at Rs. 1,628.67, and which formed the subject-matter of the present claim, were seized on a mandate of sequestration issued in D. C., Colombo, 24,694 C, and were removed and kept for safe custody in the office of the Deputy Fiscal of Kalutara. Shortly after the present writ-holder obtained a judgment in D. C., Colombo, 24,798 C, against the very party against whom the mandate had issued in the previous case, and on April 17, 1907, he took out writ of execution. This he delivered to the Deputy Fiscal of Kalutara on May 3, 1907, with a letter from his proctor, pointing out these very goods at the time in the Deputy Fiscal's office for seizure. On May 6, 1907, the writ was forwarded to the Fiscal's officer of the division where the judgment-debtor resides, and payment was demanded; on May 15 the officer reported that no payment was made, and that he had seized some immovable property belonging to the judgment-debtor. Regarding that seizure, the Fiscal's officer has stated in the box as follows:-' A Chetty pointed out the lands on behalf of plaintiff. I do not know that Chetty's name; he said he came on behalf of plaintiff. '

 

"Cross-examined.-' I questioned Abdul Raheman at the time of the seizure. He admitted some shares of the lands were his. I seized accordingly.?

 

" The value of the immovables seized was estimated at Rs. 2,650; the writ was for Rs. 3,546, to which has to be added interest and costs. The Fiscal has thus strictly carried out the provisions of section 226 of the Code; the demand for payment was not complied with; the judgment-debtor was given the opportunity of pointing out property, at the least he acquiesced in the seizure of certain properties which were pointed out on behalf of the plaintiff; that property fell considerably short in value of the amount of the claim; under section 226, therefore, the writ-holder had the right to point out any further property of the judgment-debtors; this he had already done by his

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