Byrde V. Carpen Chetty

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

BYRDE v. CARPEN CHETTY.

D, C., Kandy, 18, 152.

Sale of movable property-Contemporaneous verbal agreement to re-convey -Rights of purchaser-" Bill of Sale "-Ordinance No. 8 of 1871, s. 6-Sale of Goods Ordinance (No, 11 of 1896), s. 58 (3)-Civil Procedure Code, s. 247-Evidence Ordinance (No. 12 of 1895), ss. 92 and 99.

Where the owner of certain goods sold them to B by an instrument in writing, and by a contemporaneous verbal agreement B undertook to re-convey them to the owner on payment of the amount paid by him, and where the said goods were seized by a creditor of the owner as his property, -

Held, that B must be considered to be the absolute owner of the goods, and that he was entitled to have them released from seizure. Held, also, that a judgment -creditor is not the representative in interest of the judgment-debtor within the meaning of section 92 of the Evidence Ordinance; and that it is competent for a judgment-creditor under section 99 of the Evidence Ordinance to give evidence of any facts tending to show a contemporaneous agreement varying the terms of a written contract entered into between the judgment-debtor and a third party,

ACTION under section 247 of the Civil Procedure Code. The facts are sot out in the following judgment of the District Judge (F. R. Dias. Esq. ) (July 27, 1908): -

This is an action under section 247 of the Code, wherein the, plaintiff (Colonel Byrde) sought a declaration that he was the owner of certain articles seized in execution under the defendant's writ in case No. 17, 883 against one Pless Pol, and prayed for their release. The plaintiff has since died, and the executor of his will has been substituted in his place.

" The defence is that Colonel Byrde was never the owner of the property but only a mortgagee, and that the instrument under which he claims is null and void, as it was executed with his knowledge for the purpose of defrauding this defendant and other creditors of Pless Pol. For our present purposes the latter point is not in issue, and the only question before us is whether Colonel Byrde was the absolute owner of the goods or only a mortgagee.

" The facts were these. Pless Pol was the owner of a large quantity of hotel furniture and fittings which were deposited at. a place called the ' Savoy Hotel, ' a new hotel he was preparing to open. He was indebted to the defendant and several other creditors, including Colonel Byrde, and on. July 2, 1906, by a notarially executed deed (PI) he professed to grant, bargain, sell, assign, and set over unto that gentleman nearly all the things on the premises, including several valuable billiard tables, pianola, organ, electroliers, bevelled mirrors, iron safe, chairs, bar counter, &c. The schedule value of these goods was Rs, 13, 641, while the consideration for the deed was an alleged debt of Rs. 6, 500 due from Pless Pol to Colonel Byrde, but which at that date was not in fact due.

Admittedly Rs. 5, 000 out of that sum was only paid by Colonel Byrde nine months after the date of the deed to another creditor of Pless Pol in case No. 17, 801 of this Court, Colonel Byrde having stood security for Pless Pol in that case. Although Colonel Byrde was ostensibly the purchaser of these goods, he never got possession of them. They continued to be where they were, and in Pless Pol's possession, until the date of seizure by the Fiscal. In spite of these facts, it is contended that the title of Colonel Byrde to the goods under his deed is unquestionable, as it operated as an out and out transfer of the goods to him from the very moment that it was signed. I am unable to accept that contention. It cannot for a moment be denied that, no matter what the phraseology used in this deed may be, it was a bill of sale within the meaning of our Ordinance No. 8 of 1871, and registered as such.

" Now, the purpose of t

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