Ramanathan Chetty V. Tambyah Et Al.,

April.5,1911   Present: Middleton J. and Van Langenberg A.J.

RAMANATHAN CHETTY v. TAMBYAH et ah

31-D.C. Jaffna 7,310.

Writ of sequestration-Seizure of movables-Manual-Private sale after seizure-Purchaser buying without knowledge of seizure-Civil Procedure Code, ss. 227, 236, 653, 657, and 661.

The Fiscal, entrusted with a writ of sequestration, did not place the property sequestered-a brig-in the custody of one of his officers, and there was nothing to indicate that the brig was under seizure. The judgment-debtor sold the ship after the " seizure " to a person who had no knowledge of the seizure.

Held, that the provisions of section 236 of the Civil Procedure Code did not affect the purchaser's title.

Middleton J.--The seizure of movable property under section 227 of the Civil Procedure. Code must be manual, i.e., there must be an actual and effective seizure sufficient to show to any person inspecting the ship for the purpose of purchase that the ship was in custodia legis.

THE facts are fully set out in the judgment of Middleton J.

Bawa, for the plaintiff, appellant.-There was no proper sequestration of the brig. Form No. 38 of the Civil Procedure Code (Schedule II.), which has to be read with Form No. 104, commands the Fiscal receiving a writ of sequestration to retain and secure the goods sequestered. The Fiscal did not do so. There was nothing in the brig to show that it was under seizure.

Under section 227 the seizure of movable property has to be manual; there must be actual seizure, and the attaching officer must keep the property in his custody or in the custody of his officers. See Pereira's Institutes of the Laws of Ceylon, vol. I., p. 327.

The plaintiff bought the ship without any notice of the seizure. The maxim mobilia non habent sequalam applies. See Ramen Chetty v. Campbell1.

Balasingham, for the first defendant, respondent.-Sequestration of movables has to be effected in manner provided by section 227 (see section 657).

Section 227 gives the Fiscal the liberty to do one of three things: (1) The Fiscal may keep the property in his own custody, if either the writ-holder or the debtor advances or secures the necessary expenses

1 (1896) 2 N. L. R. 94.

therefore (2) the Fiscal may, if the owner or possessor or writ-holder give security, permit him to take charge of the property until sale; or (3) the Fiscal may, if such expenses are not advanced or secured, or if the security is not given, make a special return thereof to the Court; in such a case the Fiscal is not responsible for the due custody of the property.

It is clear, therefore, that for a seizure to be "manual" within the meaning of section 227 it is not necessary that the attaching officer should keep the property in his custody.

The Legislature has purposely modified the words of the corresponding section (269) of the Indian Code, which runs as follows: " The attachment shall be made by actual seizure, and the attaching officer shall keep the property in his own custody." But even under the Indian Code it was held that actual seizure was not necessary. See Toolsa v. The Bombay Tramway Co.,1 Multan Chand v. Bank of Madras.3

The word " retain " in Form 38 of the Civil Procedure Code cannot have the meaning of keeping in actual possession, for in the form the word " retain " refers to lands as well as goods. In the case of lands the Fiscal never remains in possession after seizure.

The maxim mobilia non habent sequalam does not affect to section 236 of the Civil Procedure Code.

Bawa, in reply.

Cur. adv. vult.

April 5, 1911. Middleton, J.-

This was an action under section 247 of the Civil Procedure Code by a claimant against a judgment-debtor, seeking that he may be declared the owner of the brig No. 144 called " Santhanamaria Nayaki," and for damages at Rs. 75 per mensem from April 11,1910, till restoration for the seizure.

In action No. 6,979, D. C, Jaffna, the first defenda

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