Present: Ennis J.

PEDRUPILLA v. DIONISA.

247-C. R. Jaffna, 11,891.

    Action under s. 247, Civil Procedure Code-Writ-holder Round by judgment against debtor in action Between debtor and claimant.

Obiter.-In an action under section 247 of the Civil Procedure Code, Between the unsuccessful judgment-creditor and the successful claimant, the judgment-creditor is concluded by a judgment adverse to the judgment-debtor in a litigation between the debtor and the claimant.

Kuda Banda v. Dingiri Amma 1[1 Ram. (1843-1855) 132.] doubted.

THE facts are set out in the judgment.

A. St. V. Jayawardene (with him Arulanandan), for appellant.- The learned Commissioner has found that the land belonged to the second and third defendants, and not to the first defendant-respondent. That being so, he should have declared the land liable to seizure in execution of our decree against the second and third defendants. It is not open to the first defendant-respondent to say in these proceedings that the decree in the District Court case No. 11,043, in execution of which the land was seized, was obtained by fraud and collusion between the plaintiff-appellant and the second and third defendants-respondents.

[Ennis J.-but this case has been the subject of litigation Between the first defendant on the one side and the second and third defendants on the other, and the first defendant has been successful. Is not the judgment-creditor concluded by that judgment against the judgment-debtors ?]

No. See Kuda Banda v. Dingiri Amma.2[2 (1911) 14 N. L. R. 145.]

[Ennis J.-In that case the distinction between an estoppel brought about by an adverse judgment was not drawn.]

Counsel cited Richards v. Jenkins,1 Richards v. Johnstone,2 Shivapa v. Don Nagaya,3 Perera v. Perera.4

J. Joseph, for respondent.-The decree. D. C. 11,043 was obtained by fraud and collusion between the appellant and the second and third defendants-respondents, and the appellant cannot avail himself of that decree against us.

[Ennis J.-Is it open to you to prove in this case that the decree in D. C. 11,043 is fraudulent and collusive ?]

Yes. See Don Cornelis v. Don Carolis.5 There is ample evidence to support the finding of the Judge on this point.

A. St. V. Jayawardene, in reply.

Cur. adv. vult.

November 6, 1917. Ennis J.-

This was an action under section 247 of the Civil Procedure Code by the decree-holder in case No. 11,043, D. C. Jaffna, who, in execution of the decree, had seized the land in dispute, which was subsequently successfully claimed by the first respondent. The second and third respondents are the judgment-debtors in case No. 11,043. The learned Judge has found for the appellant as regards the title to the land, which he holds belonged to the judgment-debtor, Rut he has further found that the decree in No. 11,043 was obtained by fraud and collusion, to deprive the first defendant of the benefit of a judgment in his favour in D. C. Jaffna, No. 10,109 ; and the plaintiff's action was dismissed, with costs.

It appears that there have been a series of actions between the first respondent and the second and third respondents respecting title to the land in dispute, beginning in 1909 with D. C. Jaffna, No. 6,532, followed by C. E. Jaffna, No. 9,507, and D. C. Jaffna, No. 10,109, the last of which was decided in appeal on October 4, 1915. In these actions the first defendant was successful.

It was urged on the authority of Kuda banda v. Dingiri Amma6 that a judgment-creditor is not concluded by an adverse judgment against his debtor, and that it is open to him to show that the property belongs to his debtor. I am doubtful as to the soundness of this contention. In the case of Dinendromath v. Ramkumar7 the Privy Council judgment said : ''' There is a great distinction between a private sale in satisfaction of a decree and a sale in execution of a decree. Under the former a person derives title through the