Raki Et Al. V. Casie Lebbe Et Al.,

Present: Middleton J. and Wood Renton J.   Aug.4,1911

RAKI et al. v. CASIE LEBBE et al.

225-D. C. Kandy, 20,358.

Fiscal's sale-Action for declaration of title by owner against purchaser and debtor-Plaintiff has a cause of action even through his physical possession was not disturbed.

The first defendant on a writ, against the second defendant caused the Fiscal to seize and sell the land in dispute as a land belonging to the second defendant, and bought it himself. The plaintiff claiming the land as his, brought the present action for declaration of title against the two defendants.

Held, that plaintiff had a cause of action against the defendants even though his physical possession was not disturbed, and though the first defendant had not obtained a Fiscal's transfer.

THE facts appear from the judgment.

Bawa, for appellants.

Allan Drieberg, for respondents.

Cur. adv. vult.

August 4, 1911. Middleton J.-

In this case the first defendant, as judgment-creditor of the second defendant, seized and sold in execution certain lands as the property of the second defendant, which the plaintiffs now seek to vindicate in this action. The sale was not confirmed, nor the Fiscal's conveyance issued to the first defendant who was the purchaser.

The first issue settled was whether the plaint disclosed a cause of action, and upon that issue, and on the ground that the plaintiffs had no present cause of action, the District Judge dismissed the plaintiffs' action, holding on the authority of Fernando v. Silva et al.1 that the plaintiffs had misconceived their action, and should have proceeded under section 247 of the Civil Procedure Code.

The plaintiffs appealed, and for them it was argued that the plaint disclosed there was a seizure and sale of their property by the first defendant, which amounted to a denial of their right, and gave them a cause of action under section 5 of the Civil Procedure Code. Ismail Lebbe v. Omer Lebbe2 decided that a seizure by the Fiscal amounted in law to dispossession. Further, that the plaint showed that there was a real ground for apprehension of prospective injury by estoppel, and that the action would lie quia timet.

1 (1878) 1 S. C. C. 27.

2 (1899) 3 N. L. R. 303.

It was urged for the respondent that there was a strong probability that the second defendant might pay his debt, when the sale would fall through; and that the action was against the first defendant as a purchaser who had no formal dealing with the property, and could not in fact oppose his title to that of the plaintiff, as no title had passed to him. The plaint avers that the plaintiffs are and have been in possession; but the answer traverses this averment, and alleges that the plaintiffs' predecessor in title was a servant of, and worked on the land under, the second defendant's predecessor in title.

There is no question that actions quia timet are maintainable in Ceylon, per Wood Renton J. in The Ceylon Land and Produce Co. v. Malcolmson,1 Soysa v. Sanmugam.2 I think, however, it is not necessary here to hold that this is a quia timet action which lies, and may be prosecuted, although I think much is to be said in favour of that proposition.

In my opinion there is a substantive cause of action disclosed in the plaint under section 5 of the Civil Procedure Code in the denial of the plaintiffs' right by the seizure of the Fiscal at the suit, and instigation of the first defendant, who is much more likely to obtain his Fiscal's transfer than not to do so, owing to the payment of his debt by the second defendant. I cannot see that the procedure contemplated under sections 241 to 247 of the Civil Procedure Code is exclusive, and prevents a suitor vindicating his rights by an ordinary action if he chooses to do so, and this, I think, has always been held by this Court. I would allow the appeal, with costs here and of the argument in the District Court on the first issu

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