064-NLR-NLR-V-12-LETCHIMANEN-CHETTY-v.-ABDUL-RAHEMAN.pdf
( 254 )
1909. Present: The Hon. Sir Joseph T. Hutchinson. Chief Justice,August 19.and Mr. Justice Middleton.
LETCHIMANEN CHETTY v. ABDUL RAHEMAN.
Ex parte Kannasamy, Applicant (Appellant).
D. C., Colombo, 27,271.
Concurrence, when allowed—Application for execution of decree—Realization oj assets—Set-off- -Civil Procedure Code, ss. 272,350, awl 352.
A judgment-creditor is not entitled to claim concurrence undersection 352 of the Civil Procedure Code, unless, prior to realization,lie has applied to the Court by which the assets are held for execu-tion of his decree.
A person who claims to be interested in the proceeds of a sale inexecution must give notice of his claim under section 350 of theCivil Procedure Code to the Court from which execution issues andnot to the Fiscal.
A
PPEAL by the intervenient whose claim to concurrence undersection 352 of the Civil Procedure Code was disallowed by
the Court. The facts are fully set out jn the judgment of theDistrict Judge (H. A. Loos, Esq.), which was as follows :—
“ The plaintiff in this case obtained judgment against the defend-ant on August 26, 1908, and on August 28 he applied for executionof the decree. On September 3, 1908, writ was issued, and certainmovable property of the first defendant was seized in liis boutiqueat Dehiowita. On September 14, 1908, a claim was made to theproperty seized by one Mohamado Haniffa. After inquiry thatclaim was disallowed, and the claimant has instituted an actionunder section 247 of the Civil Procedure Code, and summons wasserved on the plaintiff in this case in January last.
“ On September 16, 1908, the plaintiff had applied for permissionto bid for and purchase the property seized, and for credit to beallowed him to the extent of his claim in the event of his becoming thepurchaser of any of the property so seized at its sale by the Fiscal.
“ The property was sold on November 6 and 7, 1908, and theplaintiff purchased some of it, and was allowed credit to the extentof Rs. 535'15. A total sum of Rs. 678*58 was realized.by the sale. of the property, but the Fiscal’s charges swallowed up the balanceof Rs. 143-43 apparently.
•“ On November 24,1908, the plaintiff’s proctor moved, in termsof section 272 of the Code, that the said sum of Rs. 535 15 be setoff against the amount due to plaintiff on the decree, and thatsatisfaction of judgment be entered to the extent of Rs. 535*15,and that application was allowed.
“ It would appear that the plaintiff in C. R., Colombo, caseNo. 11,152, had also obtained a judgment against the first defendantin that Court on September 30, 1908, had applied for execution of
( 256 )
his decree on October 30, and writ was issued on November 2, 1908.The writ apparently reached the Deputy Fiscal of Kegalla onNovember 5, and the Deputy Fiscal of Avisawella on November 6,1908, as appears from the progress report of that Deputy Fiscal,and as also appears from that report a part of the goods seized bythe plaintiff in the present case had been sold already before thewrit of the plaintiff in C. R., Colombo, case No. 11,152, reachedthat Deputy Fiscal.
“On December 11, 1908, the proctor for plaintiff in C. R.,Colombo, case No. 11,152, moved, after notice to the presentplaintiff’s proctor, that the plaintiff be directed to bring into Courtthe sum of Rs. 535-15 to be divided rateably between himself andthe plaintiff in C. R., Colombo, case No. 11,152.
“ No prohibitory notice was received by this Court from theFiscal in execution of the writ of the plaintiff in C. R., Colombo,case No. 11,152, and there was nothing before this Court on Novem-ber 24, 1908, when it made order under section 272 of the Codesetting off the purchase money against an equivalent proportionof the decree and entering up satisfaction of the decree pro tanto,to indicate that there was any other party interested or entitled tobe heard before allocating the money to the plaintiff alone, and sofar as appeared there was no such party. It appears to me, there-fore, that it cannot be said that the order of November 24, 1908,was not duly made, and the purchase money must be regarded ashaving been finally adjudged to the decree-holder and placed beyondthe further control of this Court, as laid down by the SupremeCourt in the case of Oduma Lebbe v. Sahib.1
“ It was argued, however, that the writ of the plaintiff in C. R.,Colombo, case No. 11,152, having been in the hands of the Fiscalat the time of the sale of the property by him under the writ of thepresent plaintiff, the order of November 24, 1908, must'be subjectto the provisions of section 352 of the Code, and that accordinglyplaintiff in C. R., Colombo, case No. 11,152, was entitled to askthat the present plaintiff be ordered to bring into Court a rateableamount of the purchase money.
“ It is clear, however, from the progress report of the DeputyFiscal of Avisawella that the writ of the plaintiff in C. R., Colombo,case No. 11,152, was not in his hands at the time of the sale of aportion of the property—what portion there is nothing to show—and as regards that portion, there is no question that the plaintiffin C. R., Colombo, case No. 11,152, cannot claim concurrence.
“ It does not appear to be absolutely clear that the provisions ofsection 352 of the Code would apply in the present case at all, forthat section contemplates a rateable division of assets realized bysale or otherwise in execution of a decree only among such personsas have prior to realization of such assets applied to the Court by1 (1906) 1 Appeal Court Reports 109.
1909.
August 19.
( 266 )
1909. which such assets are held for execution of decrees for money againstAugust 19. the same judgment-debtor. In this instance the assets are held bythis Court, and admittedly no application was made to this Court,prior to the realization of the assets, for execution of his decree bythe plaintiff in C. R., Colombo, case No. 11,152. A.striet construc-tion of the section in question would appear to indicate that it isnot competent for a plaintiff in a. Court of Requests case to claimconcurrence with a plaintiff in a District Court case in the way inwhich the plaintiff in C. R., Colombo, case No. 11,152, seeks to doin respect of assets realized by a District'Court.
“In addition to the above reasons, it appears to me that thisapplication of tire plaintiff in C. R., Colombo, case No. 11,152,cannot be allowed, for, as stated above, the claimant, whose claimin respect of the property sold was rejected, has instituted an actionunder section 247, and it is not impossible that his action maysucceed, and that the present plaintiff may have to refund to him thesum of Rs. 515 35, and any such application as that now made bythe.plaintiff in C.R., Colombo, case No. 11,152, must, in my opinion,necessarily be disallowed pending the decision of the claimant’saction under section 247.
“ The application is disallowed with costs.”
Tire applicant appealed.
Sampayo, K.C. (F. M. de Saram with him), for the appellant.
H. A. Jayewardene, for the respondent.
(Mirando v. Kiduru Mohamadu1 was referred to in the course of.the argument.)
August 19, 1909. Hutchinson, C.J.—
The appellant cannot succeed under section 352, because he didnot apply to the Court by which the assets were held, i.e., the DistrictCourt, before the realization by sale in execution of the respondent’sdecree. And I do not think he can succeed under section 350. Thedebtor’s goods were seized by the Fiscal under the respondent’swrit; and on November 6, before, they were all sold, the Fiscalreceived notice from the appellant’s proctor requesting that thegoods seized under the respondent’s writ may also be seized underthe appellant’s writ. After the receipt of that notice the goods weresold and the proceeds were paid into the District Court, and were ineffect paid to the respondent by the order of the District Court madeon November 24. At^that date no notice had been received by theDistrict Court of the appellant’s claim, and I think that it was theduty of the appellant and not of the Fiscal to give notice to theDistrict Court under section 350. In my opinion the order of theDistrict Court is right. The appeal is dismissed with costs.
Middleton J. concurred.
1 (1904) 7 N. L. B. 20H.
Appeal dismissed.