1930    Present: Dalton J.

KARONISA v. SINGHO

164-C. R. Kegalla, 2,744.

Claim-inquiry-Duty of Court to notice parties-Power to vacate order of dismissal-Civil Procedure Code, s. 823.

When a claim is reported to Court by the Fiscal, it is the duty of the Court to fix a day for inquiry and give notice to the parties. A Court has no inherent power to vacate an order dismissing a claim on account of the absence of the claimant on the day fixed for inquiry.

APPEAL from an order of the Commissioner of Requests, Kegalla.

Weerasooria, for appellant.

Abeyesekera, for respondent.

February 24, 1930. DALTON J.-

This is an appeal from an order of the Commissioner of Requests, who vacated an earlier order of his Court, whereby the claim of a claimant under section 241 of the Civil Procedure Code had been dismissed.

The facts are shortly as follows: The judgment-creditor (present appellant) issued writ, and on February 14, 1929, seized certain property as belonging to his judgment-debtor. On February 18 a claim was made to it by .the present respondent, his claim being made to the Fiscal in the usual way. The Fiscal reported this claim to the Court in the usual way on February 21. On receiving this report, the Commissioner on February 22 made an order in the following terms: -

Claimant to notice J. C. (judgment-creditor) for inquiry for 4/4 (April 4).

No parties were present on February 22, when that order was made, and the order does not state how the claimant is to have it brought to his notice.

On April 4 the journal entry shows that notice on the judgment-creditor had not yet issued and the claimant was not present. The judgment-creditor's proctor, however, it appears, was present in Court presumably in connection with some other matter, as no notice had been given of this claim, and he moved that the claim be dismissed with costs. This was done.

On May 4 the claimant (respondent) moved to have his claim reopened and that he be given time to serve notice on the judgment-creditor. In support of his application he filed an affidavit stating that he was ignorant of the order of the Court of February 22, and was waiting for a notice from the Court in respect of his claim. He

does not state how or when he became aware of the order dismissing his claim, but I do not think he has been guilty of any laches in presenting this application of May 4.

The Commissioner on May 8 allowed notice of the motion to be Singho served on the judgment-creditor, stayed the sale, and on July 9, after hearing the parties, set aside the order of April 4, and directed that an investigation be held on the claim.

The judgment-creditor appeals from that order. It is conceded that there has been no investigation of claimant's claim, but it is urged that the Commissioner had no power to set aside the order of April 4, and if he had, he should not have done so, as it was claimant's duty to ascertain the date fixed for the claim inquiry.

The Commissioner does not state under what powers he sets aside the order of April 4. That order, it might be stated, was not made by him but by his predecessor in office, although this fact is not, in my opinion, material to the question under consideration. After considering the facts, as he said it was not a matter inter partes, as there was no investigation, and as claimant had no notice of the date fixed for the inquiry, he set aside the order, apparently as he thought . it unjust to claimant that the order should stand.

In supporting this order Counsel for respondent has sought to apply the provisions of section 823 of the Code, arguing that the word " action " there includes a claim made under section 241. He urges that such a claim comes within the term " action " as defined in section 5 of the Code, that definition being wider than the definition given in section 6. It is true his claim is made to the Fiscal, but it is referred by the Fiscal