SOERTSZ J.—Sellappa Chettiar v. Arumugam Chettiar.
1942Present: Soertsz and Keuneman JJ.
SELLAPPA CHETTIAR v. ARUMUGAM CHETTIAR.
60.—D. C. Colombo, 6,188.
Concurrence—Appellant obtains judgment against first defendant and takes outwrit—Petitioner-respondent obtains judgment—Failure to take outwrit—Right to concurrence—Civil Procedure Code, ss. 350 and 352.
Plaintiff in the present action sued the first defendant on November 20,1936, and obtained judgment on February 14, 1938.
In October, 1938, the petitioner-respondent sued the first defendantand his Brother, Mohamed, in case No. 9,165, as partners doing businessas Buhari Bros. On October 21, 1938, second defendant, Mohamed, con-sented to decree being entered against himself and the first defendant inthe case (who is also the first defendant in this case), jointly and severallyfor a sum of Rs. 3,095, with interest and costs, and also consented to plain-tiff being declared entitled to the sum of Rs. 2,233 lying to the credit ofdefendant with Messrs. Narottam & Pereira. On October 26, 1938,plaintiff in case No. 9,165 applied for writ, which was allowed. Butno writ was taken out- In the meantime, the plaintiff in this case appliedfor execution of his writ on October 20, 1938. Application was allowedonly to the extent of the amount due on his claim and interest. Writwas issued on October 21, 1938. On a notice issued to them by theFiscal under section 229 of the Civil Procedure Code, Messrs. Narottam& Pereira paid into the District Court a sum of Rs. 3,688, which'represents the amounts due to Buhari Bros.
Held, that the petitioner-respondent was not entitled to concurrenceunder section 352 of the Civil Procedure Code and that the plaintiff-appellant was entitled to the whole of the amount for which his writhad been allowed.
Konamalai v. Sivakolunthu et al. (9 S. C. C. 203) followed.
Held, further, that the petitioner-respondent was entitled to claim thebalance proceeds under section 350 of the Civil Procedure Code.
PPEAL from an order of the District Judge of Colombo.
H. V. Perera, K.C. (with ‘him F. A. Tisseverasinghe), for substitutedplaintiff, applicant.
N. Nadarajah, K.C. (with him V. K. Kandaswamy), for second respondent.
Cur. adv. vult.
October 7, 1942. Soertsz J.—-•
In this appeal, we have to deal with a matter 'of some difficulty, whichraises once again the question of the correct interpretation of section 352of the Civil Procedure Code. The material facts are as follows:—Theoriginal plaintiff in this case sued the first defendant on November 20,1936. He obtained judgment on February 14, 1938. An appeal wastaken on February 15, 1938. Early in October, 1938, the present peti-tioner-respondent sued the first defendant in this case and his brother,JMona Mohamed, as partners doing business as Buhari Bros. . On October 7,1938, he obtained a mandate of sequestration. On October 21, 1938,the second defendant in case No. 9,165, that is tp say Mona Mohamed,who alone had signed the proxy given to the proctor purporting to act for-
SOERTSZ J.—Sellappa Chettiar v. Arumtigam Chettiar.
Buhari Bros., consented to decree being entered against himself andHabubu Mohamed, who is first defendant in that case as well as in this,jointly and severally for a sum of Rs. 3,095 and interest and costs and healso consented to the plaintiff in case No. 9,165 “ being declared entitledto the sum of Rs. 2,233 more .or less lying to the credit of defendantswith Messrs. Narottam & Pereira ”. On October 26, 1938, the plaintiffin case No. 9,165 applied for writ. That application was allowed, butno writ was actually taken out.
In the meantime, the plaintiff in this case applied for execution of hiswrit on October 20, 1938. This application was allowed only in respect ofthe amount due on the claim and interest. Writ was issued on October 21,1938, and the Fiscal made his report on October 24, 1938, to the effectthat he had taken action under section 229 of the Civil Procedure Code.On being served with this notice, Messrs. Narottam & Pereira paid intothe District Court a sum of Rs. 3,688.15 on October 26, 1938, and afurther sum of Rs. 91.42 on November 22, 1938. In bringing thesesums into Court, they said they represented amounts due by them toBuhari Bros. The plaintiff-respondent claims that he is entitledto draw the entire amount decreed to him in case No. 9,165 out of thissum under section 350 of the Civil Procedure Code or, alternatively, thathe is entitled to concurrence with the substituted-appellant undersection 352. The substituted-appellant contests both these claims.
Xn these circumstances, two questions have been submitted to us forconsideration and determination, namely: —
what are the rights of the two parties under section 352 of the
Civil Procedure Code?
if the plaintiff in D.C. 9,165, that is the petitioner-respondent
in this appeal, has no right to any part of this money undersection 352 of the- Civil Procedure Code, hag. he a preferentclaim or any claim at all to the money under section 350 of theCivil Procedure Code?
In regard to the first question, we are fettered by the authority of aCollective Court. In the case of Konamalai v. Sivakolunthu, and Saba-pathipillai—claimant', Burnside C.J., Clarence and Dias JJ., held,on facts almost exactly the same as the material facts in this case,that no judgment-creditor who had no writ in the hands of the Fiscal atthe time of the realization of the assets, is entitled to claim concurrence.It is difficult to follow the ratio decidendi in that case. Not one of theJudges stated in express terms that a writ in the hands of the Fiscal atthe instance of a particular judgment-creditor is a condition precedentto a claim by him for concurrence. But that was the effect of theirjudgments.
Section 352 appears to be susceptible of an interpretation* morefavourable to the respondent in this case as would appear from thejudgment delivered-by de Sampayo.J. in Mirando v. Kidura Mohamadu ’and in Mendis v. Pieris’. But, the Collective Court judgment, alreadyreferred to, is binding upon us. It has been followed, as was pointedout by Layard C.J. in his judgment in Raheem v. Yusoof Lebbe *, “ for1 9 S. C. C. 203.3 is N, L. R. 310.
t 7 X. L. R. 280.* 6 N. L. R. 169.
5J0SOERTSZ J.—Sellappa Chettiar v. Arumugam Chettiar.
so‘many yearsThat was in 1902. It has been followed since then too,
as pointed out by Shaw A.C.J., in “ numerous other cases ”, for instancein Muttiah v. Abdulla' ; Letchiman v. Arunasalam Chetty – ; SadayappaChetty v. Siedle"; and as already observed by me, it was followed inMendis v. Pieris (supra) and in Meyappa Chetty v. WeerasooriyaIn thecase of Mendis v. Pieris (supra) Wood-Renton C.J.and Shaw J, de Sampayo J.taking a different .view, followed Konamalai v. Sivakolunthu (supra),and allowed the appellant in the case they were considering the right toconcurrence in regard to two writs of his, on the ground that, at the timeof the realization of the assets, the Fiscal had in his hands those two writs,as well as the writ of the other Iparty in that case. They refused toallow him concurrence in regard to a third writ he held on the groundthat that writ was not in the hands of the Fiscal at that time. DeSampayo J. was of opinion that the appellant in that case was entitled toconcurrence in respect of all three writs. Again, in the case of MeyappaChetty v. Weerasooriya (supra), Shaw A.C.J. and Ennis J. followed Kona-malai v. Sivakolunthu (Supra). Shaw A.C.J. observed as follows.—“ InMendis v. Pieris, following the decision in Konamalai v. Sivakolunthu,it was held that a creditor who had applied for execution after theprocedure of the execution had been paid into the Kachcheri is not entitled toshare in the proceeds, and the reason given by the Judges who constitutedthe majority of the Court was that such creditor had no writ in the handsof the Fiscal at the date of the sale ”. Ennis J., in a separate judgment,to.bk the same view and both Shaw A.C.J. and Ennis J. were of opinionthat “ the object of the enactment contained in section 352 of the Codewas clearly …., that stated in the judgments in Konamalai v.
1 Sivakolunthu, namely, to give the creditors who had been to the troubleof realizing the assets of the debtor an advantage over more dilatorycreditors ”. (Per Shaw A.C.J. at p 82) . “ The whole object of the sectionseems to me to be to give a creditor who has been vigilant a preferenceover other creditors who have been less vigilant ”… (per Ennis J.•at p 96). De Sampayo J., who was associated with Shaw A.C.J. andEnnis J. in that case, took a different view on the point raised inthat case and, in the course of. his judgment, referred to the full court case as'follows:—“The sheet anchor of the Counsel for the respondent for thisargument is Konamalai v. Sivakolunthu, to which all the other cases cited
are referable. That case is very difficult to understand
•my impression is that the learned Judges who decided that case did notmean to construe section 352 of the Code when they made the observa-tions now depended on. Indeed, there is hardly any reference to itsterms, and certainly' there is none to the numerous difficulties which-.surround that section and with which this Court has since had from timeto time to grapple ”. There can be no doubt as to the difficulties createdby section 352. Shaw j. has drawn attention to them in his judgmentsin both Mendis v. Pieris (supra) and Meyappa Chetty v. Weerasooriya(supra) and has pointed out the urgent need for amendment. That was■over twenty-five years , ago. But-nothing has been done and there is noalternative open to us but to continue to grapple with section 352 in the
. * 1 c.w. R. 180.
« o A t nr n v m
2 Bt. 3.
io v r. R. 7<J.
SOERTSZ J.—Sellappa Chettiar v. Arumugam Chettiar.
way in which it has been grappled with ever since the judgments inKonamalai v. Sivakolunthu were delivered.
I would, therefore, hold that the respondent was not entitled toconcurrence under section 352.
The next question is in regard to the position of the petitioner-respondentunder section 350 of the Civil Procedure Code. That is a muchwider section than section 352 and deals with “ money in court, whetherrealized in execution of a decree or not ”, and it appears to me that thepetitioner-respondent is entitled to have his claim investigated underthis section. That he did make a claim that he was entitled to themoney in Court to the exclusion of the present appellant appears fromthe proceedings of November 23, 1938. He has also, filed cross-objections,on this appeal, in which he makes the same claim.
For the purpose of considering this claim, the following facts arematerial. On February 14, 1938, decree was entered in favour of thepresent appellant for Rs. 2,240, with interest thereon at 9 per cent, perannum from the date of decree and for costs of suit. When the appellantasked for writ on October 20, his application was allowed to. the extentof the claim and interest only. That amounted to Rs. 2,240 plus interestRs. 128.60.
Although Messrs. Narottam & Pereira, on the notice issued to them,brought into Court the sum of Rs. 3,688.15 and Rs. 91.42, that is to sayRs. 3,779.57, the only assets realized, in virtue of the appellant’s "writ,must be taken to be Rs. 2,368.60 for the recovery of which writ hadbeen allowed. It seems to me that the appellant is entitled to the wholeof that amount, inasmuch as Messrs. Narottam & Pereira did not disputethe debt alleged to be due by them to the first defendant as they wereentitled to do under section 230 of the Civil Procedure Code. The factthat in bringing the money into Court they referred to the two sums asmoney due to Messrs. Buhari Bros, does not, in my opinion, amountto showing cause within the meaning of section 230. The positiontherefore, is, I think, what it would have been if Messrs. Narottam& Pereira had paid this sum of Rs. 2,368.60 into the hands of the-appellant himself.
In that view of the matter, the investigation under section 350 of the-Code must be limited to the sum of Rs. 1,410.97, which is the amountover and above the amount for which the appellant’s application forwrit was allowed.
In regard to that amount it represents less than half the amount due byMessrs. Narottam & Pereira to Buhari Bros. The trial Judge has foundthat Moona Mohamed was a partner of that Firm. I see no reason fordiffering from that view. It follows that that sum is now in Court asthe amount left over after the appellant’s writ had been satisfied to theextent to which it was limited by the order of the Judge and may fairlybe regarded as Mona Mohamed’s share of the money to which the plaintiff-respondent is entitled on the consent decree in case No. 9,165.
I set aside the order of the District Judge and make-order as statedabove. Each party will bear his costs of appeal.
Keunf.man J.—I agree.Appeal allowed.
SELLAPPA CHETTIAR v. ARUMUGAM CHETTIAR