( 295 )
Present : Lascelles C.J.
ROBSON v. FERNANDO.395—G. R. Panadure, 9,857.Concurrence—Application for satisfactionofdecree must have been made
to Court holding assets before realization—Civil Procedure Coderss. 350, 352.
Under a writ in D. C. Colombo, 30,538, a property was~ seized in'execution, but was not sold on account of a claim. Subsequently,under a writ in C. R. Panadure, 9,857, the same property was sold,and the proceeds lodged in the Court of Requests of Panadure.Thereafter the Court ofRequestsofPanadure received, aprohibit-ory notice under section232 oftheCivil Procedure Codedesiring
that the proceeds of thepropertybeheld subject to theorder o£
the District Court of Colombo.
Held, that the judgment-creditor under the Colombo writ was-not entitled to concurrence, as the application was not made to theCourt which held the assets prior to realization.
" The application in the Colombo action for the issue of a writcannot on any construction of the section be considered as anapplication to the Court by which the assets are held."
rjl HE facts are set out in the judgment.
Batva, K.C., for appellant.
A. St. V. Jayeu-ardene, for respondent.
May 15, 1912. Lascelles C.J.—
This in an appeal from an order of the Commissioner of Requestsof Panadure rejecting the appellant’s claim to concurrence in theassets of the defendant. The appellant having obtained judgmentagainst the defendant in D. C. Colombo, 30,538, on April 24, 1910,moved for execution, and his motion was allowed on May 14, 1910.
( 296 )
1912. A. writ then issued, under which certain property of the defendantT…n.„»Q was seized. The property was not sold then on account of a claimC.J. which had been preferred. Subsequently, on March 10, 1911, andBobaon v. May 26, 1911. the same property was sold in execution of the decreeFernando iu this case, and the proceeds lodged in the Court of Requests.
Panadure. The sale report in this case notes the fact that theproperty had already been seized .under the Colombo writ. OnJune 1, 1911, the Court of Requests, Panadure, received a prohibit-ory notice under Section 232 of the Civil Procedure Code desiringthe proceeds of the sale of the property to be held subject to theorder of the District Court of Colombo. On these facts the Com-missioner of Requests has rejected the application for concurrence,on the ground that under section 352 of the Civil Procedure Codethe application should have been made to the Court which holds theassets, that is, to the Court of Requests, -Panadure, prior to reali-zation. From this order the present appeal is taken. The difficultyof bringing section 352 into line with our procedure was discussedin Mirando v. Kiduru Mohamadu.' It was there pointed out bySampayo J. that section 352 has been borrowed from the IndianCode of Procedure, without the modifications which are required inorder to adapt the Indian section to our system. The sectionrequires application to be made prior to the realization “ to theCourt by which such assets are held for the execution of decrees formoney against the same judgment-debtor.” This provision, it waspointed out, was intelligible under the Indian system, where decreesmay be sent for execution from one Court to another, but the resultwould be, if the section were literally construed in Ceylon, wheredecrees cannot be transferred as in India, that claimants, in orderto obtain concurrence, must have obtained their decrees in thesame Court. This was held to be a derogation from the rights ofcreditors under the Roman-Dutch law, which was not contemplatedby the Code. The Court, therefore, construed the words “ forexecution of decrees ” as equivalent to ‘‘ for satisfaction of decrees,”so as to include the case of ” application for payment of moneyrealized by one Court in satisfaction of decrees of other Courts. ’'But can it be said in the present case that the appellant, prior to therealization, applied to the Court by which such assets were heldfor satisfaction of the decree? He clearly did not do so, for hisapplication in the Colombo action for the issue of a writ cannoton any construction of the section be considered as an application tothe Court by which the assets are held. The first application to thePanadure Court was the prohibitory notice of June X. The con- .struction of section 352 adopted in Mirando v. Kiduru Mohamadu,’liberal as it is, does not help the appellant, for he did not make theapplication to the Court which held the assets within the prescribedtime. Then, it is argued that the concurrence may be allowed under
i <1904) 7 N. L. Pi. m.
section 350, but in Mirando v. Kiduru Mohamadu1 the petitionerwas allowed to take this course because he had fulfilled the require-ments laid down in Konatnali v. Sivakula-nthu,- because, in otherwords, he had obtained a decree, and had prior to the realization ofthe proceeds applied to the Court for the execution of such decree.Mirando v. Kiduru Mohamadu1 is clearly no authority for theproposition that section 350 may be resorted to in a case like thepresent, where no application was made to the Court which holdsthe assets before realization. To hold that section 350 is applicablein such a case would be to sweep away the time limit imposed bysection 352. In my opinion the decision of the learned Commissioneris right, and in accordance with previous decisions of this Court.The appeal is dismissed with costs.
ROBSON v. FERNANDO