016-NLR-NLR-V-19-MEYAPPA-CHETTY-v.-WEERASOORIYA.pdf
( TO )
[Fut,l Bench.]
Present: Shaw A.C.J. and Ennis and Da Samp ay o JJ.
MEYAPPA CHETTY i>. WEERASOOBIYA.
69—D. C. Colombo, 48,694.
Concurrence—CivilProcedure Code, a.352—Applicationfor execution
after tale t'nexecution of debtor's propertyby another creditor—
Payment of balancemoney bypurchaser bycheque—“ Realization ”
—“ Assets "—Omissionofthe name of an appellantfromthe
caption~~Appeal.
On November X. 1915, certain lands were sold in .execution of adecree in favour of the plaintiff against W, and one-fourth of thepurchase moneywaspaid. OnNovember 17the purchaser gave
the Fiscal a cheque for the remaining three-fourths of the purchasemoney. On November 20 this' was deposited in the Kachcheri. OnNovember 80 the matter was reported to the Court. On November19 the 1st, 6th, and7thappellants, who had decreesagainstW.
in the sameCourt, appliedfor executionof their .respective
decrees, and notices of their applications were given in this case.On November 29 4th and 6th appellants applied for executionagainst W. The 2nd and J3rd appellants applied for execution onDecember 16.
Held, that the appellants were not entitled to concurrence.
Payment by chequeisa conditional payment, andwhenthe
cheque ’is honoured, that operates as a payment as from the dateof the giving of the cheque.
Per Shaw A.C.J. and Ennis J.—Assets are realized in execution,within the meaning of section 862 of the Civil Procedure Code, atthe moment of sale, and not when the money is paid.
De Sampayo J.—The words' “ prior to realization ” in section352 means “ before the receipt‘of the* assets.’*
rpHE facts are set out in the judgment.
Drieberg (with him F. H. B. Koch), for appellants.—The appellants(1st, 6th, and-7th) are entitled to concurrence as-they had applied. for execution of their decrees on November 19—before the moneywas sent to the Kachcheri by – the Fiscal. These appellants hadapplied for execution prior to realization of the assets." Assetscannot be said to be realized in this case before the entire purchasemoney was paid.
A cheque should not be regarded as a realization of money. Acheque is not money. In all statute law where the word “ money ”is used the purposes of the section are not satisfied by the tender ofa cheque. The cheque may be dishonoured by the bank. [DeSampayo J. referred to 86 Mad. 179.“ Assets ” means proceeds
of the sale of property.]
[Shaw A.C.J. referred to 18 Cal. 317.)
1916.
( 80
/
1916.. The stage contemplated by the section is not reached, until the
Meyappa assets are before the Court. How is the Court going to divide acheque or a promissory note? The Code contains no provision■ for payment by cheque. In essence a cheque and a promissorynote are the same.
[Shaw A.C.J.-r—Would it be right to take away the remedies of thejudgment-creditor because the Fiscal accepts a cheque?] Counselcited Stroud on the meaning of the word ’* money.”
The Court did not hold the assets until it received an intimationfrom the Fiscal of the deposit in the Kachcheri. All the appellants,therefore, are entitled to concurrence.
Counsel cited 2 C. L. R. 178; 28 Bom. 264; 18 N. L. R. 310;7 N. L.'R. 280; 9 8. C. C. 203.
W. Jayewardene, 'for respondent.—The Fiscal accepted thecheque on November 17. The Fiscal is an officer of the Court.Once the cheque is accepted and it is honoured it is payment;payment to the Fiscal after the sale is payment to the Court.
“ Realization ” means the sale of the property by the Fiscal inthe case of immovable property.
In Konamalai v. Sivakolwnthu1 the appellant had his writ reissuedbefore the money was deposited in the Kachcheri, and yet theFull Court held that he was not entitled to concurrence. Thatcase is a binding authority. Counsel referred to 6 N. L. R. 169;2 C. W.' R. 130; 1 C. W. R. 180; 2 Br. 3; 1 A. C. R. 109; 3 Bed.258; 18 N. L. R. 310. If a cheque is accepted and it is subsequentlyhonoured the payment dates back to the -date of the acceptanceof the cheque. Counsel cited (1898) 2 Ch. 680; 16 Bom. 97; 11 N.
Li. R. 83.
There is no proof when this cheque was cashed, although theproof is that the money was deposited on November 20.
Drieberg, in reply.
Cur. adv. vult.
July 10, 1916. Shaw A.C.J.—
The respondent, having obtained judgment in the ^District Courtof Colombo against H. P. Weerasooriya, took out a writ of executionagainst him on September 25 „ 1915.
The Fiscal, on the day of the issue of the writ, seized certainimmovable property of the judgment-debtor and sold it on Novem-ber 1. At this date he had three other writs in his hands for otherjudgment-creditors against the same debtor in cases Nos. 42,498,42,704, and 41,094, D.C. Colombo.
Twenty-five per centum of the purchase money was paid to theFiscal on the day of sale, which amount was deposited by him inthe Colombo Kachcheri‘xm November 8, and he made return to thewrit on November 15.
» 9 8. C. C. 203.
( 81 )
TtiA -balance of the purchase money was! paid to the Fiscal by thepurchaser’s cheque on November 17, and was deposited by theFiscal in the: Sachcheri on November 20, and on November 90 hereported the payment to the Court.
On November 19 the 1st, 6th, and 7th appellants had applied totlifl District Court for 'writs against the same judgment-creditors insuits Nos. 43,277, 43,266, and 43,267. On November 29 the 4thand 5th appellants similarly applied in suits Nos. 48,025 and 48,393,as also did the 2nd and 3rd appellants on December 15 in suitsNos. 43,393 and 43,436. These creditors all gave prohibitorypnfaVM against the proceeds of the execution being parted withwithout their claims bong dealt with. –
On February 3, 1916, the respondent hied a scheme of distribution,by which he reteably divided'the proceeds of the execution betweenhimself and the other three writ holders, whose writs had beenapplied for and were in the hands of the Fiscal at the time of thesale, and moved for an order for payment to him of his proportion.The District Judge, having heard the appellants contra, made theorder asked for, and from his order the present appeal is brought.
I will first deal with an incidental point which arose.
During the hearing of the appeal it was discovered that the nameof tiie 7th appellant had been omitted from the caption of thepetition of appeal, and it was contended on behalf of the respondentthat no appeal by him could be heard. The 7th appellant is, however,mentioned throughout the petition of appeal as one of the partiesaggrieved by the order desiring to appeal, and the omission of hisname in the caption is obviously a clerical error, which has causedno prejudice to any one, and I think the caption should be amendedby the .insertion of his name.
The appeal brings up again a matter which has been the subjectof great controversy in the Courts of this Island, namely, the rightsof rival creditors to participate in the proceeds of an execution leviedon’the property of a common debtor.
By the Roman-Dutch law all creditors were entitled to claimconcurrence, regardless of the dates of their decrees or applicationfor execution, or, indeed, whether they had obtained decrees at all.This was, perhaps, suitable to mediaeval times, when litigation wasinfrequent and financial transactions comparatively few in number,but it was entirely inappropriate' to modern conditions, and therights of execution-creditors were accordingly specifically dealt withby our Code of Civil Procedure.
After strenuous opposition it has been definitely settled by twodecisions of the Full Court, in Konamalai v. Sivakolunlhu1 andMendU v. Peris* that the Roman-Dutch law .of concurrence is nowno part of the law of this Island, and the rights of rival claimants to
» 9 8. C. C. 208.* (1916) 18 N. L. B. $10.
1M6L
Shaw A.C.J.
MeyappaOhetty v.Weertuooriya
( 82 )
1916. an execution-debtor'b property are solely governed by" our Code ofShawT.O.J. Civil Procedure.
-—-Under the law as it stood prior to the alteration, when a creditor
had, by means of an execution, levied on his debtor’s property anWteraaoorvya amount sufficient to satisfy his debt, he was liable to have his claimto the proceeds defeated by some other creditor or creditors, whohad stood by without enforcing their claims, or, indeed, who hadobtained collusive judgments against the debtor, coming in andclaiming to share the proceeds of the execution, and, if he recoveredhis debt at all, it was only by repeated executions against the debtor’sproperty, for the Fiscal could only levy each time on sufficient-property to satisfy the amount of the executions actually in his hands.
The object of the enactment contained in section 352 of the Codewas clearly, in my opinion, that stated in the judgments in Kona-malax v. Sivakohmthu1 namely, to give the creditors who" had beento the trouble of realizing the assets of the debtor an advantage overmore dilatory creditors.
The question now before us appears to me to be whether theintention of the Legislature is to be defeated by a strict constructionbeing given to the word “ realized ” used in section 352.
So much of the section as is material is as follows:—“ Wheneverassets are realized by sale or otherwise in execution of a decree, and' more persons than one have, prior to the realization, applied to theCourt by which such assets are held for execution of decrees formoney against the same judgment-debtor, and have not obtained-satisfaction thereof, the assets, after deducting the costs of therealization, shall be divided rateably among all such persons
In Mendis v. Peris9,, following the decision in Konamalai v. Siva-kolunthu, it was held that a creditor who had applied for' executionafter the proceeds of the execution had been paid into the Kaohcheriis not entitled to share in the proceeds, and the reason given by theJudges who constituted the majority of the Court was that suchcreditor had no writ in the hands of the Fiscal at the date of the sale.
These decisions absolutely conclude the case as regards the chumsof the 2nd, 3rd, 4th, and 5th appellants, who have not appled forexecution of their decrees prior to the proceeds of sale being depositedin the Kachcheri, and the appeal must therefore dearly fail so faras their claims to concurrence are concerned.
There still remains, however, for consideration the claims of the1st, 6th, and 7th appellants, who had applied for execution the daybefore the proceeds of the execution was paid by the Fiscal into theKachcheri. It is contended on behalf of the appellants that“realized” must be read as “converted into cash”, and that,therefore, any creditor who has applied before the proceeds, of thesale have been actually paid into the Kaohcheri and notified.to theCourt is entitled to concurrence.
(1915) 18 N. L. R $10.
» 9 S. C. C. SOB.
( 88 )
. By sections 260 and 261 of the Code, when the sale is of immovable 1916.property, and the purchase price exceeds Bs. 100, a deposit of 25 sffAW a n,.Tr
per cent, only is required at the time of the sale, and the purchaser
has thirty days in which to pay the balance. The result is thftt the cheu^o.whole proceeds: are, in such cases, not in the Kachcheri to the Weeraaooriya..credit of the suit until some time after the date of the sale, and thatis what has happened in the present case.
Such a construction of the words “ realized by sale ” as is contendedfor on behalf of the appellants would, in my opinion, defeat theobject of the legislation and revive the old evils it was intended toremedy. It would enable a creditor to stand by'and then to come inand defeat, to a luge extent at any rate, the original execution-creditor’s claim, and it would make it impossible for the Fiscal tosell at the execution a sufficient amount of the debtor’s property tosatisfy the writs in his hands at the time of the sale, for he would notknow what other claims there might be on the proceeds.
We may be driven to such a construction by the words used inthe section, but in my opinion we are not.
I can find no direct authority on the point in our local decisions,although there are numerous oases in which the words “ realized by-sale or otherwise in execution of a decree ” contained in section 852have been considered. These decisions, however, are for the mostpart cases dealing with the rights of special mortgages (Me eraSaibo v. Mitittuchetty1, VeUaiappa Chetty v. Pitcha Maulaa, MuttiahCketty v. Don Marlines1 * 3 * *), or with the attachment of debts due byother persons to the judgment-debtor (Soyza v. Weerakoon*), andnone of them appear to me to decide the time when the assets canbe said to have been realized in the case of a sale under a writ ofexecution. In Supramanian Chetty v. Siriwardanas, a somewhatcomplicated case, in which the execution-creditor himself boughtthe property of the debtor and retained the amount of the purchasemoney, Middleton J. in his judgment says;—" The amount bid isrealized by the sale in execution and is exigible from and payableby the purchaser unless he be acting under section 272, and, beingproperty which may be used to satisfy debts or demands, is thereforean asset within the legal meaning of the word ”.
The learned Judge here seems to have been of the same opinion asthe majority of Idle Court in Mendis v. Perisa, that the' sale is therealization. In numerous other cases, of which 1 will mentionMuttiah v. AbdullaT, Letchiman v. Amnasalam Chetty3t SadayappaChetty v. Siedle9, Aduma Lebbe v. Sahib, the Court appears tohave been of opinion that only creditors who had their writs in thehands of the Fiscal at the time of the sale are entitled to share in
1 3 C. L. B. 37.
a (1899) 4 N. L. R, 311.
3 2 Bal. 182.
* 2 C. L. B. 178.
(1906) 9 N. L. B. 346.
6 (1916) 18 N. L. B. 310.» I C. W. R. 180.
2 C. W. B. 180.
8 Br. 8.
1918.
Shaw A.C.J.
MeyappaOhetty v.Weera&ooriya
( W )
the proceeds of the levy. Numerous cases decided under the corres-ponding section 295 of the Indian Procedure Code of 1882 have beenreferred to, but they do not seem to give much assistance on theactual point arising in this appeal.
The early part of the Indian section is in precisely similar wordsto the part of section 852 of our Code under consideration. TheIndian section, however, continues with a provision for safeguardingthe interest of mortgagees of property sold in execution, who underour law have to seek their relief under other sections of the Code.'That provision contains an enactment that appears to me to havean important bearing on the construction of the earlier part of thesection. After providing that the proceeds of sale shall first beapplied to defraying the expenses of the sale and discharging theprincipal and interest due on incumbrances, it goes on to providethat the balance shall be applied “ rateably among the holders ofdecrees for money against the judgment-debtor, who have, prior to .the sale of the said property, applied to the Court which made the-decree ordering such sale for execution for such decrees and .havenot obtained satisfaction thereof ”.
. This seems to make it clear that, with regard to property sold inexecution that is subject to mortgage, the. right of concurrence ’ ofexecution-creditors is restricted to those who have applied forexecution prior to sale, and to show that the words “ realized bysale " in the earlier part of the section refer to the sale itself, andnot to the subsequent payment of the money, for it would be.quite irrational that the claims of judgment-creditors inter seshould -be different in respect of unmortgaged property to what itis directly declared to be in respect of property subject to anincumbrance.
The Indian cases in which the construction of the words “ realized^:by sale or otherwise in execution ’’ have been considered are, likeour local decisions, mostly where money has been attached or othersimilar methods of execution have been resorted to, and are notcases in which there has been a sale of property in execution; inRamanathan Chettiar v. Subramania Sastrial1, a single Judge case, itwas, however, held that an execution-creditor who had applied forexecution after the sale, but before the amount was paid into Court,was entitled to concurrence. On the other hand, 1 find the judgmentof the Appeal Court in Kashy Nath Roy Chotodhry v. SurbanandStraha2 saying, " The provisions of section 295 of the present Codeof Civil Procedure show that when a property is sold in execution ofa decree, it is sold not only for the realization of the money dueunder that particular decree, but of all other decrees the holders ofwhich had prior to the sale applied to the Court for execution oftheir decrees
i I. L. R. 2€ Mad. 179.
a I. L. R. 12.Cal. 317.
t W )
.Apart from judicial interpretations, it does not seem to rue that *918.the meaning of the word “ realized ” need necessarily be restricteda.C.S
to ** converted into actual cash The word means “ to make real ”,
nnd I think that when property is sold, and, therefore, ceased to che&y ?.be the property of the judgment-debtor, and converted either into Wceraeooriyacash itself or into a liability of the purchaser to pay the amount tothe Fiscal, it may well be said to be realized within the meaning ofthe section, and it is therefore unnecessary to give the word theinterpretation sought to be put upon it by the appellants whichwould, in my opinion,, defeat the usefulness of the section and, toa large extent, the intention of the Legislature.
None of the appellants having applied for execution prior to thedate of the said, I thinlr they are not entitled to concurrence, and Iwould, therefore, dismiss the appeal, with costs.
Ennis J.—
On- November 3, 1915, certain lands were sold in. execution of adecree in favour of the plaintiff, and one-fourth of the1 purchasemoney was paid. On November 17 the Fiscal received a cheque forthe remaining three-fourths of the purchase money, and on November20 this was deposited in the Kachoheri (whether in the form ;ofthe original cheque or the cash proceeds does' not appear). OnNovember 30 the matter was reported to the Court executingthe decree. On.ember 19, however, the 1st, <$th, and 7th
defendants-appellants applied for execution of their respectivedecrees, and notices of their applications were given in this case.
The only question reserved for the Full Court in thi9 appeal iswhether the 1st, 6th, and 7th defendants-appellants are, under theCivil Procedure Code, entitled to concurrence.
The first clause of section 352 of the Civil Procedure Code says:—
‘ ‘ Whenever assets are realized by sale or otherwise in execution ofa decree, and more persons than one have, prior to the realization,applied to the Court by which such assets are held for execution ofdecrees for money against the same judgment-debtor, and have notobtained satisfaction thereof, the assets, after deducting the costs ofthe realization, shall be divided rateably. among all such persons.
It will be observed that the word “ assets '* is used twice in thisclause, and its use in the last paragraph makes it clear that theassets referred to are the “ proceeds ” of the realization. It wascontended for the appellants that there could be no such assetsunder the Code' except money, – and sections 213, 226, and 260 werereferred to in support of the contention. These sections practicallyauthorize- the Fiscal to realize in money the goods seized in execution.
am not prepared to adopt the contention, because, had money onlybeen contemplated, there was no occasion to use the word “ assets ”in section 352, and I see no reason, in the circumstances, to limit themeaning of the word to money only. A cheque is used to effect a
–
( 88 )
transfer of money, and payment of a cheque relates back to the timel&ranTj, when the cheque,was given (Hadley v. Hadley1). I can see no reason_——for not considering it an asset withinthe meaning of section 852.
OJwttgMP?Inasmuch as the cheque was receivedby the Fiscal on November
Weerasooriya 17 and the 1st, 6th, and 7th. appellants made no application forexecution of the decrees until November 19, they would not, in myopinion, be -entitled to concurrence even if the word “ assets ” wereto be given the limited interpretation contended for. But, inaddition to this, I see no reason to fixthe date of the realization as
the day when the money is paid. Itseems to me that assets are
realized in execution at the momentof sale. A promise to pay
money or value has then been accepted in place of the debtor’s goods,.and so far as the promise is subsequently fulfilled (in whole or in'part), assets to that extent can be said to have been realized at thedate of the sale. I see no reason to think that the word “ assets ” usedin the section must be in such a form as to be available for immediatedistribution. The last clause in section 352 shows that where it iscapable of immediate distribution, as in money, a person who hasreceived payment without being entitled to it may be compelledto refund. The whole object of the section seems to me to be to givea creditor who has been vigilant a preference over other creditorswho have been less vigilant and the case of Konamalai v. Sioa-kohmthu2 supports this view. After a sale no further steps couldbe taken by the execution-creditor to obtain satisfaction of hisdecree if the assets realized at the sale are apparently sufficient tosatisfy his claim. Should the consideration fail, and such a creditorhave to take'further steps, either against the same property or someother property of the debtor, such steps would be towards a furtherrealization, 1 and other creditors would have time to secure concurrencein the proceeds realized at the later date, but all payments made inpursuance of the original sale can properly be said to be assetsrealized at the sale, for the payment relates back to the sale. TheIndian cases give no material assistance in this case, as the Indianprocedure is not altogether the same. I would answer the questionreserved for the Full Court in the negative, and consquently noneof the appellants could succeed.
De Sampayo J.—
This is a contest to a fund in Court realized by the sale .of, thedefendant’s property at the instance of the plaintiff. The appellants,who are execution-creditors in various other actions in .the. sameCourt against the defendant, have made claims in concurrence undersection 352 of the Civil Procedure Code. The name of one of thesecreditors, is by some inadvertence omitted in t-he caption of .thepetition of appeal, though it is clear that he is in fact an appellant,and is designated in the body of the petition as the 7th appellant, Mid1 (1898) L. B. 2 Ch. 680.2 9 8. C. C. 203.
r 87 i
I think he should be regarded as a party to this appeal. The questioninvolved in this appeal have arisen on the following state of facts.
The plaintiff, having obtained judgment against the defendant fora certain sum of money, took out a writ of execution on September25, 1915, and certain landed property of the defendant was sold inexecution on November 1, 1915. 'The purchaser paid down 25 percent, of the purchase money in terms of the usual conditions, and forthe balance he, on November 17, gave the Fiscal a cheque. The Fiscalreported to Court the recovery of the one-fourth purchase money onNovember 19. On what date he cashed the cheque does not appear,but he lodged the amount in the Kachcheri on November 20, andreported to Court the recovery of that amount on November 30.Besides the appellants, there were certain other judgment-creditorswhose claims in concurrence the plaintiff admitted, and accordinglyon February 3, 1916, the plaintiff filed a scheme of distribution ofthe fund in Court between him and these others, and moved for anorder of payment for his share. In the meantime the appellants hadissued prohibitory notices under section 232 and notified their claimsto Court. The Court considerpd the matter upon notice to all theclaimants, and ultimately made order allowing the plaintiff’s motionwith costs. Of the appellants, the 1st, 6th, and 7th appellants hadapplied for execution of the decrees in their favour in the severalactions and obtained issues of writs on November 19, the 4th and 5thappellants on November 29, and the 2nd and 3rd appellants onDecember 15. The reason for. the District Judge's order was thatin his view none of the appellants had applied for execution of theirdecrees ‘ ‘ prior to realization ” within the meaning of section 352- of the Civil Procedure Code. The question is whether the DistrictJudge is right as to all or any of the appellants.
The difficulty is to ascertain the exact meaning to be attachedto the word “ realization ” in the above section. It was argued, inthe first place, that " realization " meant the sale of property by theFiscal. I am unable to accede to this argument. The full expres-sion is “ realized by sale or otherwise in execution of a decree. ”The word “ otherwise ’’ manifestly refers to such.cases as paymentof money on a garnishee order, payment by the judgment-debtorhimself on arrest in execution or by any receiver appointed inrespect of property under seizure, and similar means of satisfactionof a decree by payment to Court. This is uniformly the,view takenin India under the corresponding section 295 of the old Indian Civil’Procedure Code. See Vishvanath Mahesvar v. Vinohand Pana-chand1, Sorabji Edulji Warden v. Govindi Ramji2, Manilal Umedrami). Ncenabhai Maneklai3. It is thus clear that “ realization " isadvisedly used, and that when the section speaks of “ priorto realization ", it does not mean to refer to a Fiscal’s sale. Itmeans conversion of property into money or some shape capable of
i I. L. R. 6 Bom. 16.* I. L. R. 16 Bom. 91.» I. L. B. 28 Bom. 264.
1916.
Db SampavcJ.
MeyappaCheUy v.Weerasooriyc
( 88 )
IMS. distributioncreditors. Some confusion has been introduced
D®.Sampayo into the discussion by the common use of the word realize ”, to de-J* 1 scribe also the process of conversion of the judgment-debtor's property.
Bfrynjijirr This section does not, however, use it in that sense. It is associated
Ohetty v. with the word ” assets ” which are realized by sale of the propertyWeerasoonya ^ otherwise and to be held by the Court and rateably divided- amongthe creditors. It is manifest that ” assets ” here mean the proceedsof execution whether by sale or otherwise. The argument can onlybe justified if “ sale ” means, as I think it does, not the auctionwhich the Fiscal holds, and which amounts merely-to a contract ofsale, but a completed sale, that is to say, a sale completed by theauction purchaser by payment of the purchase money in pursuanceof the conditions of sale- The case of Hafez Mohamed v. Damodar 1shows that in India even the one-fourth deposit made by the pur-chaser is not ” assets ” realized and available for distribution. Thereason given is that under the Indian Code the deposit is forfeited toGovernment in default of payment of the balance by the purchaser,but the case is, nevertheless, useful as showing that “ realization ’* is'not the sale itself, but the receipt of the proceeds. In RamanathanCheitiar v. Subramania Sastrial 2 it was held that “ assets ” were theproceeds of sale, and would not be realized until the whole proceedsof the execution were paid into Court. . It was even argued onbehalf of the respondent that the claimant, in order to be entitledto concurrence, should have had his own writ in the hands of theFiscal at the time of sale. The sheet anchor of counsel for therespondent for this argument is Kondmalai v. Sivakolunthu,, * towhich all the other cases cited are referable. That case is verydifficult to understand. The' facts there disclosed show that theclaimant in fact had a writ out in the hands of the Fiscal when theassets were realized by payment into Court of a debt due to thejudgment-debtor by a third party, which was the only realizationpossible in the circumstances of the case, and yet the claim wasdisallowed. My impression is that the learned Judges who decidedthat case did not mean to construe section 352 of the Code whenthey made the observations now depended on. Indeed, there 'ishardly any reference to its terms, and certainly there is none to thenumerous difficulties which surround that section and with whichthis Court has since had from time to time to grapple. I aminclined to think that in Konamalai v. Sivakolunthu 3 the Judges weredealing with a different point, which is indicated in the judgment ofBurnside C.J., where he said:He (the claimant) had no exeoution
in the hands of the Fiscal so as to make the seizure a joint seizureunder his ’as well as the plaintiff’s writ. ” This appears to havereference to what was held, even before the Code, came into operation,in Atherton v. Avookelebbepody*, namely, that where there are several
i I. L. R. 18 Cal. 242.a I. L, R. 26 Mad. 179.
9 S. C C. 208.
7 S. C. C. 178.
( 89 )
write in the hands of the fiscal he cannot purport to sell under, one 1918.writ only, and give credit to that writ holder in the event of purchase dh Samfayohy him, and so deprive the other writ holders of their right to shareproceeds. Under section 852 of the Code a joint seizure or sale is ■ Meyappairrelevant. It contemplates seizure and sale under one writ, andallows other judgment-creditors to chum in concurrence, providedonly they have applied for execution of their decrees before the dateof realization. It is no doubt true that by application for executionis not meant the mere fact of such application being'made. Theparty applying should be entitled to execution, and that will un-doubtedly be shown if the Court has in fact allowed the applicationfor execution, In my opinion the provision in the Code does notrequire the further condition that the writ should actually have beentaken out and put in the hands of the Fiscal prior to realization.
This view is not inconsistent with my judgment in Muttiak v.
Abdulla1 and Letchiman v. Arunasalam Chetty,2 which were cited bycounsel for the respondent, for there I was only* concerned withshowing that before the decision depended on was applied the factsshould be in accordance. In this connection it ■ has been pointedout that proviso 4 to section 295- of the old Indian Civil ProcedureCode, which has regard to the division of surplus proceeds in theevent of a sale of mortgaged property, requires the claimants tohave applied for execution of their own decrees ** prior to the saleof the property, and it has been suggested that in the main provisionthe expression ** prior to realization ” must he the same thing as“ prior to the sale ”. But I think the difference is explainable by thecircumstance that in the case of mortgaged property assets can herealized only by sale, whereas in the cases of ordinary- execution assetsmade be realized otherwise than by sale of the debtor’s property.
This is made more clear by section 73 of the new Indian Code, inwhich the expression “ before the receipt of such assets ” is substi-tuted for '* prior to realization ”, and in which proviso 4 is left intact.
It seems to me that here also “ sale ” means a sale completed bypayment, and that, as when that happens assets are ** received ”,there is difficulty in reconciling the two ways of putting it.
This leads me to say that “ prior to realization ”' in the old IndianCode and in our Code is the same thing as ** before the receipt ofthe assets ” in the new Indian Code, and that the alteration in thephraseology is only made in order to avoid the ambiguous word“ realization ” which has given so much trouble.
• When these considerations are applied to the facts of this case,it will be seen that the 2nd, 3rd, 4th, and 5th appellants are at onceout of Court, inasmuch as their applications for execution of theirdecrees were not made till after the proceeds of the sale of the.judgment-debtor's property had been lodged in the Kachcheri. ForI do not consider as sound Mr. Drieberg’s contention on their behalfijC.1T. B. 180.* S C. W. R. 130.
1916.
De SampayoJ.
MfyappaChetty v.
W eerasooriya
that the money can be said to have been paid into Court and soavailable for distribution only when the Fiscal reported to Courtfehe fact of the recovery. The 1st, 6th, and 7th appellants stand ona somewhat different footing. They made their applications forexecution prior to the lodging of the money in the Kachcheri, thoughafter the receipt of the cheque by the Fiscal from the purchaser.I think that payment to the Fiscal, who is the Court’s officer, mustbe taken as payment to Court, but there remains the questionwhether the cheque was payment in the sense required. . There isnothing to show that the Fiscal did not accept the cheque as payment.Generally speaking, payment by cheque is a conditional payment,and when the cheque is honoured, that operates as a payment asfrom the date of the giving of the cheque (Hadley v. Hadley l).That being so, the 1st, 6th, and 7th appellants must also be takenas having come in too late.
I’or these reasons jl agree that the appeal should be dismissed,with costs.
Appeal dismissed.