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Present: Dalton and Lyall Grant JJ.
MOHAMADU v. MABIKAB ei at.
143—D. C. (Inty.) Puttalam, 4,033.
Sequestration before judgment—Sale of property sequestered—Seizureof money by another writ holder—Decree obtained beforesequestration—Prohibitorynotice—Proctor’slien—CivilProcedure
Code, ss. 75, 212, 660.
Where propertysequestered 'before judgment was sold by the
Fiscal, who had, at the time of sale, received a writ issued inexecution of a decree obtained against the same defendant inanother action,—
Held, that the decree holder, whose writ was in the hands of theFiscal at the time of sale, was entitled to have his decree satisfiedout of the proceeds of sale.
Held further, that the Proctor of the party who obtained theorder for sequestration had no lien on the proceeds of- sale untilhis clients’ claim had been reduced to a decree.
PPEAL from an order of the District Judge of Puttalam.The facts appear from the judgment.
Amarasekera, for appellant.
Soertsz (with him R. C. Fonseha), for respondent.
December 20, 1929. Dalton J.—
The appellant is plaintiff in action No. 4,033. In that actionhe sought to recover from one S. Mohammadu Saibu, whom I willhereafter call the defendant, and another the sum of Rs. 833.75due on a promissory note. Plaint was filed on January 4, 1929,judgment given for the amount claimed on January 15, and writissued on January 18.
S. M. Mohamadu Saibu, the defendant, was also sued in actionNo. 4,032 by another person who is the first respondent in thisappeal to recover a sum of Rs. 1,700, also on a promissory note.Plaint was filed iu that case on December 20, 1928, and an orderof sequestration was asked for and granted at the same timedirecting the Fiscal to seize and sequester property of the defendantto the value of Rs. 2,000. Certain property, including shop goods,coconuts, two bulls, and some goats, were seized under this orderon December 22. The sale report shows they were sold by theDeputy Fiscal on January 24, and the sum of Rs. 357.24 paidinto the Kachcheri as the proceeds of the sale after deduction ofexpenses on January 29. He reported to the Court on February 1that he had deposited this sum to the credit of case'No. 4,032. Theproperty had been sold by the Fiscal under section 227 of the Codeas being perishable or subject to decay. Meanwhile plaintiff in case
101. N. B 11394 (10/51)
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No. 4,032 obtained a decree nisi on January 24, the decree beingmade absolute on February 22, and a writ of execution was issuedon March 3.
Meanwhile in case No. 4,033 the Deputy Fiscal had received fromplaintiff in that case an application dated January 18 for theexecution of his decree. It does not appear what was pointed outfor seizure, but it would appear that the Deputy Fiscal seized thesum of Bs. 357.24 sequestered and deposited to the credit of caseNo. 4,032, for on February 8 he sent a prohibitory notice to theCourt under the provisions of section 232 of the Civil Procedure Codeseizing the amount for the benefit of plaintiff in case No. 4,033.
On February 15 plaintiff moved the Court by motion datedFebruary 14 that thi6 amount so depicted be transferred to thecredit of case No. 4,033 and for a further order that the money sotransferred “ be brought to the separate account of the plaintiff inthis case." What exactly in practice that means is not clear to me.but no doubt what plaintiff wanted was payment of the amountto him on his writ, which presumably would follow when the sumhad been credited to his account. The Court accepted the motionand directed notice to issue.
To whom notice was to issue the order did not state, but plaintiffin case No. 4,032 appeared to resist it after notice was served onhim. The notice describes S. M. Mohamadu Saibu in the caption u>defendant in cases Nos. 4,032 and 4,033, and the return of serviceshows it was served on him also.
The motion above referred to was heard on March 18, the trialJudge apparently being unable to fix an earlier date. The Fiscal'sMarshal was called and he made it clear that under the writ in castNo. 4,033 he had seized all the property sequestered in case No* 4,082.At the time of that seizure there was only one writ of executionin his hands. The learned Judge after hearing the motion dismissedit with costs.
He first of all holds that there is no proof that the defendant incase No. 4,032 was the same person as the defendant in case No. 4,033.Mr. Soertsz states he is unable to uphold that conclusion since bothparties in the lower Court seem to have taken it for granted and sorequired no proof of it, and it was not questioned.
The learned Judge then goes on to discuss and decide the questionwhether plaintiff in case No. 4,033 was entitled to preference overplaintiff in case No. 4,032. It seems to me that on the facts here noquestion of any preference arises. An application was made byplaintiff in case No. 4,033 to have his writ executed. It is providedby section 660 of the Code that an order of sequestration does notbar any person holding a decree from applying for the sale ofthe property under sequestration in execution of the decree. Theproperty was so attached, as the evidence shows, and it was sold.
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It is immaterial whether the decree was obtained before or afterthe attachment under the order of sequestration. It is true thatunder section 661 it would not have been necessary for plaintiffin oase No. 4,032 to again seize the property attaohed under theorder of sequestration obtained by him after he had obtained adecree in his favour although he would still have to make the usualapplication for execution. (Code of Civil Procedure (India) by Mvlla,p. 702.) Plaintiff in oase No. 4,032 however did not obtain hisdecree until February 24, applying for execution in the usual formon March 1, whereas what had to be decided here was the rightsof plaintiff in case No. 4,083 on January 18. There wus only onewrit in the hands of the Fiscal at that date and no question ofconcurrence therefore arises (Mendis v. Peris l).
The case of Bisheahar Das v. Ambika Prasad 2 deals with a similarquestion arising under the equivalent Indian rules. Those rulesare. practically the same as ours. Upon the facts in the casebefore us, it seems to me, that plaintiff in case No. 4,033 was entitledto have his decree satisfied out of the money belonging to defendantdeposited in Court. No suggestion has been made that his conducthas been anything but honest.
With regard to the argument that the sum paid to the credit ofcase No. 4,032 was subject to a lien for the costs of the Proctorof the plaintiff in that case, it is clear from the decisions in Perera v.Per era 3 and Appu Sitino v. De Silva1 and also from the terms ofsections 75 and 212 of the Code that the lien, if any, attaches to‘' the amount decreed. ’ ’ There was no sum decreed in case No. 4,032even at the time plaintiff in case Nj. 4,033 made his motion, nor wasthere any certainty7, when the writ of plaintiff in case No. 4,033 wasin the Fiscal’s hands, that plaintiff in oase No. 4,032 would be suc-cessful in his action. Until judgment be obtained it seems to me it isimpossible to say that in such a oase as this the property has beenrecovered or preserved for the plaintiff by the Proctor’s professionalexertions. If that is so, no lien in favour of his Proctor couldtherefore exist on this sum in case No. 4,032. In the course of thejudgment in Wijeeuriya v. Kalu Appu 5 it is stated in general termsthat a Proctor’s lien attaches to a fund brought into Court throughhis professional exertions, but the facts of the case are not set outin the report. It is clear however that the only question arisingthere was whether a Proctor’s lien for costs extended to disburse-ments made as part, of his professional duty or whether it is confinedto payment for his professional services. The point arising beforeus did not arise for decision there. The learned Judge was in myopinion wrong in holding that the Proctor in case No. 4,032 had anylien on this sum for his costs.
18 N. L. R. 310.■■ 11 ■' R. 7.
(7915) 37 Allahabad 575.4 to A L. R ol. ■
5 8 G. 11'. R. 41.
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Lastly it was urged that appellant had no right of appeal, butthat on the .dismissal of his motion he should have brought anaction under section 247. This however is no claim to propertyseized coming within the provisions of section 241 of the Code.By the terms of section 658 claims to property that has beensequestered would be investigated in the manner provided bysection 241 and the subsequent sections, but plaintiff in caseNo. 4,088 is making no claim to property sequestered; he isseeking to have his writ exebuted against defendant’s property.
For the above reasons the plaintiff in case No. 4,033 was in myopinion entitled to the order sought on his motion. The order ofthe trial Judge must be set aside, and the motion allowed with coststhereof. Plaintiff is also entitled to the costs of this appeal.
Lyall Gbant J.—I agree.
MOHAMADU v. MARIKAR et al