1928 Present: Garvin, Dalton, and Lyall Grant JJ,

ISOHAMINE v. MUNASINGHE.

144-D. C. Kalutara, 13,275.

Action under section 247-Action-Claim inquiry-Absence of claimant-Order made after investigation-Civil Procedure Code, ss. 241, 243, 245 and 247.

An order disallowing a claim, in 'he absence of the claimant on the date fixed for inquiry, of which the claimant had notice, is an order to which the conclusive character given by section 247 of the Civil Procedure Code attaches.

APPEAL from a judgment of the District Judge of Kalutara.

The facts are stated by the learned Judge as follows: -

The property in dispute was seized on January 29, 1921, under writ issued in C. It. case No. 8,861. The plaintiff preferred a claim to it on March 2. 1921, the Court fixed the matter for inquiry for

April 22, 1921, and directed that the execution-creditor be noticed. The notice was duly taken out by the claimant; on the date fixed for inquiry the plaintiff (claimant) was absent. There was no return to the notice on the execution-creditor. The Court made order dismissing the claim. The plaintiff did not bring an action under section 247 of the Civil Procedure Code. The property in dispute was sold and purchased by the defendant in the present suit. The learned District Judge held that the order in the claim-inquiry was conclusive against the plaintiff.

F. de Zoysa (with .A, L. Jayasuriya), for plaintiff, appellant.-The proceedings of April 22, 1921, are recorded thus: " No return to notice; claimant absent; creditor absent; claim dismissed." Beet ion 247 gives a conclusive effect only to orders made under section 244-245. These sections contemplate an investigation being held. It is submitted that these proceedings show that there was not and could not be an investigation as both parties were absent on that date. Hence the dismissal of the claim does not operate as res judicata. Section 242 indicates that there is a possibility of a claim on which no investigation takes place. The case on which the learned Judge relies has no application to the facts of the present case. In that case Mariachi v. Marcia 1 the date was duly notified to both parties. Here the creditor did not receive notice and hence both parties were absent. It could not be said in the present case that it was ripe for investigation. The furthest Courts have gone is to hold that there has been a constructive investigation (Chelliah r Sinnacutty2; Silva r. Wijeysinghe.3 )

M. T. de S. Ameresekere, for respondent, relied on Maracair. r. Maricair (supra).

January 27, 1928. GARVIN J.-

The short point for decision in this case is whether an order dismissing a claim to property seized in execution of a writ made tinder the circumstances hereafter set forth is one which is conclusive inasmuch as no action was brought by the claimant to establish the right which he claimed within the period specified in section 247 of the Civil Procedure Code.

The material facts as found by the learned District Judge are set out in his judgment as follows: -

" The property in dispute was seized on January 29, 1921, under writ issued in C. R. case No. 8,861. The plaintiff preferred a claim to it on March 2, 1931. The Court fixed the matter

1 22 N. L. R. 441.
2 18 N. L. R. 65.
3 2 C. L. R. 143

for inquiry for April 22, 1921, and directed that the execution-creditor be noticed. The notice was duly taken out by the claimant. On the dote fixed for the inquiry the plaintiff (claimant) was absent. There was no return to the notice on the execution-creditor. The Court made order dismissing the claim. The plaintiff (claimant) did not bring an action under section 247 of the Civil Procedure code. The property in dispute was sold and purchased by the defendant in the present suit."

It will thus be seen that the claimant with notice of the date appointed by the Court for the investigation of his claim failed to attend