Samaranayake V. Mendoris Et Al.,

Present: Dalton and Drieberg JJ.

SAMARANAYAKE   v.   MENDORIS   et al.

336-D. C. Galle, 24,630.

Action under section 247 of the Code-Execution creditor against the claimant-Proof of judgment debtor's title-Requisites of plaint.

Where an action under section 247 of the Civil Procedure Code is brought by the. execution creditor Against the claimant, the plaint should set out the judgment-debtor's title, and the execution -creditor is bound to prove such title as fully as the debtor himself, if he were vindicating his title against the claimant.

 was an action under section 247 of the Civil Procedure J- Code brought by the plaintiff to have a certain share of a house seized by him declared liable to be sold in execution against first defendant. Second defendant, wife of the first defendant, claimed the house, and her claim was upheld. The learned District Judge gave judgment for the plaintiff.

N. E. Weerasooria, for defendant, appellant. L. A. Rajapakse, for plaintiff, respondent!

December 21, 1928.   Dalton J.-

This was an action brought under the provisions of section 247 of the Civil Procedure Code to have a house seized by the plaintiff declared liable to be sold -in execution for the debt of the second defendant. The second defendant, wife of the first defendant, claimed the house as her property, and her claim was upheld. The trial Judge found the house belonged to the first defendant and gave judgment for plaintiff.

The property seized by plaintiff under the writ issued in execution of his decree against the first defendant was an undivided 10/16 of the land called Makadugodakurunduwatta and an undivided 15/16 part of the house on it. The property claimed by the second defendant to the Fiscal was 15/18 of the land and 15/18 of the house. The claim was upheld, and plaintiff did not take any steps by action under section 247 in respect of the land, but his plaint in this action sets out that first defendant is entitled to the whole of the house " by right of construction," and he accordingly asked that first defendant be declared entitled to the house, and therefore that it

be liable to seizure and sale under his writ. It will be seen here there is very considerable scope for confusion in respect of the plaint as drawn.

Only two issues were framed :-

(1)       Is first defendant entitled to the house ?

(2)       Is it liable to be sold under plaintiff's writ ?

The evidence shows that the house in dispute is a stone masonry tiled house of 13 cubits. The trial Judge finds it was built by the first defendant, and he also finds that first defendant owned a share in the land on which it stands. This latter conclusion he based, upon the documents produced in the case (P 1, P 2, D 3, D 4). I can certainly find nothing in the documents which satisfactorily supports this latter conclusion. It is clear that the claim to the interests in this particular land seized was upheld, and plaintiff has done nothing further in respect of that. It would seem that the trial Judge has overlooked the fact that other land was referred to in the documents in which first defendant may have had an interest, but there is nothing to show he had any interest in the soil of Makadugodakurunduwatta. The verbal evidence would certainly appear to support the contention that first defendant had no share in the soil of this land although plaintiff does say he was entitled to 1/18 of the soil. How he comes to that conclusion he does not say.
It is admitted that the second defendant was only entitled to 15/18 of the land, but that first defendant was entitled to any share in the remainder plaintiff has entirely failed to prove. As his plaint was framed I doubt if he or his advisers ever had any intention of enter­ing upon such proof, although, as is now pointed out, it is not clear from the plaint if plaintiff wants only the materials comprised in the house, or the

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