Yapahamine Et Al V. Weerasuriya

Present; Pereira J. and De Sampayo A.J.

YAPAHAMINE et al v. WEERASURIYA.

458-D. C. Matara, 5,832

Seizure of properly in execution-Removal of seizure does not validate an alienation void under s. 238, Civil Procedure Code-Is fresh seizure. necessary when writ is re-issued ?-Extension of time for execution applied for by Fiscal-Is application under s. 224 necessary ?

The removal of the seizure of any property once seized in the execution of a writ does not validate an alienation of the property which was originally void by operation of section 238 of the Civil Procedure Code.

Per Pereira J. (De Sampayo A.J. dissentiente).-That in the case of a writ issued on an order on an application expressly made under section 224 of the Code, it is necessary that in terms of section 226 there should be a proper seizure of the property of the judgment-debtor on the particular writ so issued. A seizure on a prior writ cannot be availed of for the purpose of the sale of the property.

When a Fiscal having seized property under a writ sends it to the Court for an extension of the time allowed for execution, an application under section 224 is not necessary. All that the Court has to do is to make an order extending the time and return the writ to the Fiscal to continue execution.

THE facts are set out in the judgments.

A. St. V. Jayewardene, for plaintiffs, appellants.

Allan Drieberg, with him Canekeratne, for first defendant,, respondent.

Cur. adv. vult.

March 12, 1914. Pereira J.-

The subject-matter in dispute in this case is a 239/896th share of the tw6 parcels of land described in the plaint. For the purposes-of the contention in this case Charles William may be taken to have been the original owner of the share in claim. On a writ against Charles William the share was seized on August 9, 1911, and eventually sold to the first defendant on March 12, 1912. The seizure was duly registered, but between the seizure and the sale by the Fiscal, that is to say, on February 22, 1912, Charles William conveyed the land to the plaintiffs. It has been said that the conveyance in favour of the plaintiffs was not a " private alienation, " and it was therefore not affected by the provision of section 238 of the Civil Procedure Code. It is not necessary that I should enter into the facts upon which this contention is based. They are set forth in the judgment of the Court below, and I need only say that I am in

entire agreement with the learned District Judge in thinking that the conveyance was a " private alienation, '' and I have no hesitation in endorsing the reasons given by him.

It has also been said that the conveyance is saved from the operation of section 238, because it is a conveyance in pursuance of an agreement prior to the seizure; but, as to this, it is clear that there was no agreement valid and enforceable in law for the conveyance to the plaintiffs of the share of land in claim.

The point that was most seriously pressed and debated at length at the bar was that the writ (a writ issued in case No., 5, 154 of the District Court of Matara) on which the property was seized was not the writ on which the property was eventually sold to the first defendant. I have looked into the record of case No. 5, 154 and I have found it difficult to discover what really has happened to the writ on which the property was seized. It is pretty certain that a' fresh writ was applied for under section 224 of the Civil Procedure Code on January 28, 1912, for the recovery, " by seizure and sale of the property of the defendant, " of Rs. 1, 478. 90, and in terms of the order on that application a fresh writ was issued on February 2, 1912. The amount of this writ included the amount that was recoverable on the old writ. There was no seizure of the property on the new writ, but apparently the Fiscal sold the property in claim on the footing of the seizure on the old writ. It was argued that that could

Click Here to Read the rest of this document