051-NLR-NLR-V-12-MUTTURAMEN-CHETTY-v.-SUPPRAMANIAN-PULLE-et-al.pdf
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Present: Mr. Justice Middleton and Mr. Justice Grenier.1909.
June 22.
MUTTURAMEN CHETTY v. SUPPRAMANIAN PULLE etal.
Ramasamy, Claimant, Appellant.
D. G., Kurunegala, 3,482.
Concurrence—Money brought into Court to obtain release 'from arrest andplacedto plaintiff's credit—Non-liability to seizure at the instance ofother creditors—Civil Procedure Code, as. 232, 350, 650, 652.
Where a person on being arrested' in mesne process pays intoCourt the amount claimed by the plaintiff, and such amount iscarried into the separate acoount of the plaintiff, with the consentof such person, by order of Court under section 350 of the CivilProcedure Code, no other creditor of the same person has a right toseize the said fund or to claim concurrence therein.
A PPEAL from an order of the District Judge. The factssufficiently appear in the judgment of Middleton J.
Baum, for the claimant, appellant.
Sampayo, K.G., for the plaintiff, respondent.
Cur. adv. wit.
June 22, 1909. Middleton J.—
The appellant in this case, who is the judgment-creditor of thesecond defendant in D. C., Colombo, 27,549, got judgment againsthim in that action on September 23, 1908, and on October 2issued notice under section 232 of the Civil Procedure Code to theKurunegala Court, by virtue of which the Fiscal, who was directedonly to seize the sum of money deposited to the credit of casetto. 3,482, issued a notice seizing in the hands of the Court the sumof Rs. 2,175 deposited to the credit of the plaintiff in that action.
It would seem that the plaintiff in this action filed plaint onAugust 17,1908, and at the same time moved for, and on August 18obtained, a mandate of sequestration and a warrant of arrest againstthe second defendant under sections 650 and 652.
The second defendant on August 24, 1908, tendered the sum ofRs. 2,175 into Court and obtained an order releasing him fromarrest and withdrawing the mandate of sequestration. On Sep-tember 17, 1908, the plaintiff moved under section 350 that the1 saidsum of Rs. 2,175 should be carried to the separate account of theplaintiff, and this motion, by and with the consent of seconddefendant, was allowed.
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Vol, XII.7
lm.June 22-
Middleton
J.
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The plaintiff in this action obtained judgment against the seconddefendant .on October 6, 1908, and on November 6, 1908, issuednotice to the claimant-appellant to show oause why he should notdraw out the. said sum of Rs. 2,175 in satisfaction of tliis decree.The appellant opposed the motion, but on February 16, 1909, theDistrict Judge held that the plaintiff was entitled to draw themoney in question. The claimant appealed, and urged that howas entitled to preference on the sum in question until the plaintiffobtained an order of execution under section 352. For him it wasargued (section 660) that sequestration gives no priority, that themoney in question was paid in to free second defendant from amandate of sequestration, and that by analogy the same principlewould apply to. it as to the property sequestrated. That seques-tration is only intended to prevent fraud on the part of a debtor,not to give the diligent creditor a priority. That section 350 containsno provisions for making such an order, and, assuming a provisionhas been made elsewhere, must be read in conjunction with, andrefers only to, chapter XXVII. of the Civil Procedure Code, sections409 to 416, and is not intended to be applied as the plaintiff herehas applied it. Counsel referred also to Letchiman Chetty v.Abdul Rahiman;1 Ra'mpini on the Indian Civil Procedure Code,section 489, page 737; 1 AUahabad H. O.172 at page 185 ; 6 MadrasH. C. 135 and Order 43, Rule 6, under the English JudicatureActs.
For the respondent it was contended that the money came intoCourt not. owing to sequestration, but under section 650, as a depositto free the second defendant from arrest; that the order undersection 350 was by consent of the defendant; that section showsthat such a deposit was intended as a hypothecation for a prospec-tive judgment; that section 350 was not intended to apply to casesunder chapter XXVII.; that Letchiman Chetty v. Abdul Rahimandid not apply here, as it refers to goods seized in sequestration:that under section 652 there is no provision for the deposit ofmoney in lieu of a sequestration of goods; and that under section650 the deposit is hypothecated for the payment of the defendant’sdebt, but by the order under section 350 it becomes the propertyof the plaintiff up to the amount of the judgment contemplated.These, I think, are the principal arguments addressed to us bycounsel on both sides.
The case seems to me to depend on the question, to whom did themoney belong at. the date of the claimant-appellant’s seizure ? InLetchiman Chetty v. Abdul Rahiman1 it was held that sequestrationgave no priority to the diligent creditor, but was only intended toact as a preventive of fraud on the part of the debtor, and the goodssequestrated still remained vested in the debtor, subject to all hiscreditor’s right therein.
1 (1908) 3 A. O. R. 143.
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The right of concurrence is a privilege peculiar to the CivilLaw, and it was held by this Court in Findlay v. Miller,l that con-currence is not granted except in cases of execution against property,and could not be granted as against the proceeds of an executionagainst the person. In the present case the deposit in Court ofRs. 2,175 was no doubt in the main made with a view to free theperson of the second defendant from arrest. The principle under-lying the case of Findlay v. Miller {vbi supra) in which the learnedJudges refer to authorities in support of their contention which theydo not quote, must be that * he diligent creditor, who has acted withsuch zeal in the matter of his debt as to secure the arrest of hisdebtor who has personally paid him to obtain his liberty, is not tobe deprived of the full fruits of that diligence. In the present casethe money was paid into Court to avoid arrest of the second defend-ant, and was ordered by the Court, with the consent of the seconddefendant, to be carried to the separate account of a specified person,viz., the plaintiff. It is not argued that this order is altogetherultra vires, but that section 350 only contemplates such orders asancillary to chapter XXVII., but I cannot see why the Court is notjustified in making such an order under the circumstances. Thereis no undue or fraudulent preference in giving a creditor money whois suing you for a debt you admit to be partly due. The effect ofputting it in the name of the plaintiff .was to appropriate it to hisuse, and enable him under section 350 to draw it out if he had chosenwithout notice to any one by an order of the Court. The money,to use a metaphor, is put into the plaintiff’s box by consent ofthe defendant, while the Court holds the key, the intention beingthat the plaintiff should pay his debt in full out of the money inthe box as soon as the Court has decided the exact amount due, andthereupon given him the key.
In my opinion, therefore, the learned Judge was right in holdingthat the money was vested in the plaintiff at the time of the seizure,and for that reason was not liable to seizure at the hands of theclaimant. I think also that, inasmuch as the money in questionwas in effect the proceeds of a writ against person, on the authorityof Findlay v. MiUer1 the claimant-appellant would not be entitled toconcurrence therein, and a fortiori would be deprived of preference.It is unnecessary, however, to hold this in view of my ruling onthe appropriation of the money to the plaintiff’s use by the orderof the Court under section 350, as there has been no argumenton the point. The appeal, in my opinion, should be dismissedwith costs. •
Grenier A.J.—I entirely agree.
Appeal dismissed.
1909. i
J une 29.
Middleton
J.
1 (1863-1868) Ramanathan 124.