Kuda Banda V. Dingiri Amma

Present: Lascelles, A.C.J.   Mar.16,1911

KUDA BANDA v. DINGIRI AMMA.

60-C. R. Kandy, 18,602.

Action under s. 247 of the Civil Procedure Code-Writ-holder not bound by judgment against debtor in action between debtor and claimant.

In an action under section 247 of the Civil Procedure Code, between an unsuccessful claimant and the writ-holder, the latter is not concluded by a judgment adverse to the judgment-debtor in a litigation between him (debtor) and the claimant.

THE facts in this case are set out in the order of the learned Commissioner of Requests (R. G. Saunders, Esq.): -

The facts in this case are as follows. In C. R. Kandy, 17,587, one H. Dingiri Amma (the defendant in the case C. R. Kandy, 18,602) instituted an action on a promissory note against Panikki Mudianselage Punchi Banda, and obtained judgment on November 18, 1908, in execution of which decree an undivided half share of the southern two pelas of the land Galalelakumbura was seized. On May 12, 1909, the Fiscal of the Central Province forwarded to Court a claim to the said land put in by one Nawaratna Mudianselage Kuda Banda (the plaintiff in this case, 18,602), which claim was inquired into on June 24, 1909, and dismissed; whereupon the said Nawaratna Mudianselage Kuda Banda instituted this action under section 247 of the Civil Procedure Code, asking the Court to declare him entitled to the portion seized under writ in C. R. 17,587. It is argued on behalf of the plaintiff that he was one of the four plaintiffs in D. C. Kandy, 10,931, in which Panikki Mudianselage Punchi Banda, the judgment-debtor in C. R. 17,687, was the second defendant. The said Punchi Banda was at the time of the institution of the District Court case a minor, but it was argued he was duly represented by a guardian ad litem, Girakurege Udage Ram Menika, and it is further argued that in D. C. 10,931 judgment was entered in favour of the plaintiffs (of which the plaintiff in this case was one) as against the defendants, including Punchi Banda, for certain lands, including the portion seized in C. R. 17,587, the subject-matter of this case. It is therefore argued on behalf of plaintiff that the decree in D. C. 10,931 is res judicata, and estops the defendant from setting up an antagonistic title in the said Punchi Banda.

The Commissioner then proceeded to discuss other points, and continued: -

This brings us to the question whether the decree in D. C. 10,931 did, or did not, entitle the plaintiffs to the entirety of the lands. A perusal of the record shows that on March 26, 1898, the District Judge, after recording evidence and giving reasons for his judgment, gave the following judgment: " I give plaintiffs judgment for the lands claimed,

with Rs.2. 50 nominal damages, and costs against the first and second defendants." Now, the second defendant is the said Panikki Mudianselage Punchi Banda, and it is therefore clear that by the judgment in D. C. 10,931 he was declared not entitled to any share of the lands- a judgment which I hold is res judicata, and estops the defendant in this case from setting up an antagonistic title in the said Punchi Banda.

I accordingly give judgment in favour of plaintiff, and direct that the land seized in C. R. 17,587 be released from seizure.

H. A. Jayewardene, for the defendant, appellant.-A decree against the judgment-debtor in a suit between him and the claimant does not estop the defendant in the present action under section 247 of the Civil Procedure Code from establishing the judgment-debtor's title. The judgment-debtor is not a privy to the judgment-creditor. The judgment-creditor does not represent the debtor, even though he has to rely on the debtor's title. Counsel cited Hukum Chand, p. 201,s. 93.

Bartholomeusz, for the plaintiff, respondent.-The judgment-creditor cannot in this suit be allowed to prove that the judgment in the action between the claimant and the debtor was wrong. It

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