1955 Present: Gratiaen, J., and Sansoni, J
.
T. RAMAN Appellant, and N. MANICKAM et al., Respondents

 S. C. 129-D. C. Jaffna, 6,780

Res judicata -" 247 action "-Attachment of property-Previous litigation as to title between judgment-debtor and claimant-Rights of judgment-creditor- Execution purchaser is "privy" of judgment-debtor-Civil Procedure Code, .s. 247.

When property attached by a judgment-creditor is the subject of a claim in a "247 action", an earlier judgment upholding the claimant's title to it as against the judgment-debtor would operate as res judicata in favour of the claimant,

Kuda Banda v. Dingiri Banda (1911) 14 K. L. R. 145 and Sandrasegara v, Coomaraswamy (1917) 4 C. W. R. 378, overruled.

APPEAL from a judgment of the District Court, Jaffna.

C. Ranganathan, for the plaintiff appellant. Joseph St. George, for the defendant respondent.

Cur. adv. vult.

 March 14, 1955. GRATIAEN, J.-

This action was instituted under Section 247 of the Civil Procedure Code concerning a property which a judgment-creditor (the 1st respondent) had caused to be seized in execution of a money decree against his two judgment-debtors. The appellant objected to the seizure on the ground that he was its absolute owner. In due course, he instituted this action for a declaration inter alia that the property belonged exclusively to him and was not liable to be sold in execution of the 1st respondent's decree. The learned trial Judge dismissed the action and held that the property belonged to the 3rd respondent (the 2nd judgment-debtor) by virtue of a purchase in 1946 from the 2nd respondent (the 1st judgment-debtor).

The attachment of the property in dispute had been secured by the 1st respondent on 22nd March 1950. Nevertheless the learned Judge rejected the appellant's plea of res judicata based on a decree in his favour dated 16th September 1948 of the District Court of Jaffna (affirmed in appeal on 13th September 1949) in an action in which he had successfully vindicated his title to the property as against the 3rd respondent.

The state of the earlier decisions as to whether an attaching creditor in a "247 action" is bound by a judgment previously declaring the claimant entitled to the property as against the judgment-debtor is far from satisfactory.. In Kuda Banda v Dingiri Banda [(1911) 14 N.L.R. 145] Lascelles, J., sitting alone, held that in such a situation the creditor (even though the seizure was effected after the date of the decree relied on as res judicata)

was nevertheless entitled to a fresh adjudication on the merits as to his judgment-debtor's title. Six years later, in Pedrupillai v Dionisa [(1917) 20 N. L. R. 143.], Ennis, J., also sitting alone, expressed a strongly-worded opinion to the contrary, but ultimately disposed of the appeal on other grounds. Ennis, J. pointed out that certain English decisions relied on by Lascelles, J. related only to " estoppels by conduct" which bound the judgment-debtor personally but not his judgment-creditor "who was not a party to the estoppel ". I respectfully agree that Lascelles, J. appears to have lost sight of the distinction between an estoppel which merely " gives rise to the application of equitable principles between man and man ", and a so-called " estoppel by record " which, on grounds of public policy, prohibits in limine a second adjudication between the same parties (or their "privies ") on the subject matter of the earlier lis

Six days after Pedrupillai's case (supra) had been decided, a similar case came up before de Sampayo, J., also sitting alone, in Sandrasegara v Coomaraswamy[(1917) 4 C. W. R. 378.]. Unfortunately, his attention was not drawn to Ennis, J.'s recent dissent, and he followed Kuda Banda's case (supra) on the assumption that there was no judicial pronouncement to the contrary.

The rule of stare decisis does not require a Bench of two Judges to accept any of these conflicti