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RAHEEM v. YOOSOOF LEBBE.
D. C., Colombo, 15,363.
Seizure of money deposited in Court—Claims for concurrence—Rights of special
mortgagees—Civil Procedure Code, ss. 298 and 352—Power of Collective
Court to over-rule Us own .decision.
The provision in section 352 of the Civil Procedure Code that whereassets have been realized by a sale in execution of a decree and moreperrons than one have prior to the realization applied to the Court inwhich such assets are in deposit for execution of decrees for money againstthe same judgment-debtor, the assets Shall be divided rateably amongall such persons, only affects cases where the competition is betweenholders of money decrees.
Therefore, where three money decree-holders competed for a sum ofmoney brought into Court, and one of them did not appear to have had adecree in his favour at the time the assets were realized by sale,—
Held, that such a decree-holder was not entitled to concurrence undersection 362 of the Civil Procedure Code.
Beading section 352 with section 232, the intention of the Legislatureappears to be to preserve the preferential rights of special mortgagees.
Layabd, C.J.—I am doubtful whether the Collective Court has thepower to over-rule a judgment of the Collective Court.
-ttFON a writ of execution issued at the instance of the plaintiffU in this case certain movable property belonging to thedefendant was sold by the Fiscal and a sum of money leviedand brought into Court. The plaintiff in suit No. 15,234, who alsoheld a writ against the defendant, claimed concurrence with theplaintiff in the present case. After the Fiscal had realized themoney brought into Court plaintiff in suit No. 16,345 obtained adecree against the defendant and caused the money in deposit toz
December 5and 9.
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be seized. Thereupon (he writ-holder No. 15,234 moved for andobtained a notice on the writ-holder No. 16,845 to show cause whythe amount in deposit should not be divided between himself andthe plaintiff in the present case, to the exclusion of the writ-holderNo. 16,345.
This motion and the motion of (he writ-holder No. 16,345for concurrence with the present plaintiff and the writ-holderNo. 15,234 were discussed before the learned District Judge (Mr.D. F. Browne) on the same day.
The District Judge held as follows:—“ It appears to me that thefund now in Courts is not ‘ property ’ under section 232 of theCivil Procedure Code, but ‘ assets ’ realized by sale under section352, and also that plaintiff in 16,345 has not duly established byproof that he had applied for execution of his decree before the
Fiscal seized and sold under the writ in this action I rule
that the plaintiff in 15,234 is entitled to his motion with costsagainst the plaintiff in 16,345. ’’
The plaintiff in 16,345 appealed.
Bawa, for appellant.
de Saram, for respondent.
The cases cited at the argument (which took place on the 5thDecember, 1902) appear in the judgment of the Chief Justice.
Cur. adv. vult.
9th December, 1902. Layard, C.J.—
A sum of Bs. 859 is in deposit in this case, being amount realizedby the sale of certain property of the defendant which had beensold in execution under a writ against him. After such sale theamount mentioned was attached by the appellant. The firstrespondent, a judgment-creditor of the defendant in another case,who had previously claimed concurrence with the plaintiff in thiscase, noticed the appellant to show cause why. the said sum shouldnot be divided proportionately between himself and the plaintiffin the present case, to the exclusion of the appellant. Theappellant himself moved for concurrence with the first respondentand the plaintiff in this action.
The motion of the first respondent for concurrence to theexclusion of the appellant and that of the appelant for concurrencewith the first respondent and the plaintiff in this action werediscussed before the District Judge on the same day, and the Judgeiriade order on the 28th July, 1902, allowing the first respondent’sapplication.
The appellant has argued before us that the learned DistrictJudge was wrong, and that in respect of the money deposited in
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Court the appellant was entitled to concurrence with the firstrespondent and the plaintiff in this action.
The sum in Court was realized by sale in execution of a decreeof the property of the execution-debtor. Admittedly, at the timeof such realization the appellant had not applied for the executionof a decree; he had not even obtained such a decree against theexecution-debtor.
It has been argued that, under the provisions of section 232 ofthe Civil Procedure Code, the appellant was entitled to concurrence,even though he had not obtained a judgment or applied for a writof execution against the judgment-debtor. Undoubtedly, underthe Boman-Dutch Law the appellant would have been entitled onproof of his debt to concurrence, even though he had not obtaineda judgment against the execution-debtor.
The Collective Court, however, decided in the case of Konamalaiv. Siva Kolunthu (9 S. C. C. 203) that a creditor, since thepassing of the Civil Procedure Code, is not entitled to concurrenceunless he has obtained a decree against the judgment-debtor priorto the realization of the property of the judgment-debtor by salein execution of a decree against him, that Court being- of opinionthat the Boman-Dutch Law rules as to concurrence had beensuperseded by the provisions of section 352 of the Civil ProcedureCode. With reference to claims in concurrence, that judgmenthas always been followed for the last nineteen years.
The appellant’s counsel has, however, referred us to the judg-ment of Chief Justice Bonser in the case of Velliappa Chetty v.Pitclia Maula (4 N. L. R. 312) in support of his argument thatthe appellant’s right must be determined by the law as it existedat the date of the passing of the Civil Procedure Code, and thatsection 352 of the Civil Procedure Code has not effected thechange which the Supreme Court held in 9 S. G. G. 203 it had.Chief Justice Bonser in that judgment was not dealing with thecase of a claim for concurrence, but with the rights of a specialmortgagee of movables, and he there held that section 352 of theCivil Procedure Code had not the effect of repealing the rights ofa special mortgagee of movables to preference in the' proceeds ofthe sale of those movables, although such sale had been carried outunder execution of a decree. This Court had previously come tothe same conclusion (see the case of Meera Saibu v. Muttu Chetty,reported in 3 G. L. R. 37). Mr. Justice Withers in that casedrew a distinction between the case of a mortgagee-creditor andthe holder of an ordinary money decree, and pointed out that thedecision in 9 S. C. C-. was only an authority that the old Boman-Dutch Law rules as to claims in concurrence have been superseded15-
Lay abo, C. J.
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1002. by section 352 of the Civil Procedure Code, and that section 282December 9. conserved to a mortgagee-creditor his claim to priority. ChiefLayabd, Justice Bonser in his judgment in the above-mentioned caseCJ. (reported in 4 N. L. B.) also stated .that, it seemed to him,“ section 352 would be given its legitimate force and effect byreferring it to cases where there is competition between holders,of ordinary money decrees,” but held that section 352 did notaffect the rights of special mortgagees.
The law, as laid down by the above-cited cases, appears to bethat section 352 only affects cases where there is competitionbetween holders of ordinary money decrees, and that sections 282and 352 read together indicate the intention of the Legislatureto preserve the preferential rights of special, mortgagees. It has.been suggested by appellant’s counsel that we should reservethis case for a Full Court, so that the judgment of the CollectiveCourt above referred to may be over-ruled. I am doubtful as towhether the Collective Court has power to do so. I am confidenthowever, that it would be both undesirable and inexpedient forthis Court to in any way interfere with a ruling which has beenfollowed for so many years, and I am not prepared to reservethis case for a Full Court. I would dismiss this appeal withcosts.
I am of the same opinion. Mr. Bawa argued that, in spiteof the provisions of section 352 of the Civil Procedure Code,his client might, under section 2S2, seize the money in Court,and on satisfying the Court of the justice of his claim obtainconcurrence.
Section 232 deals with the “ mode ” of seizing property “ soughtto be seized and sold or otherwise realized ” in satisfaction of adecree, which is in the custody of a Court or public officer.
. According to the explanation, the property may be money in thehands of the Government Agent to the credit of an action or aparty to an action. . And the Court is to determine any questionof priority or title between the judgment-creditor and any otherperson (except the judgment-debtor) claiming under an attach-ment, assignment, or. otherwise. This may fit the appellant’scase; but the provision is subject to section 352, which enacts, inmy opinion, that the assets realized are only distributable rateably,among creditors for simple money debts, to those who, havingdecrees for money against the same debtor, applied for executionbefore realization.
RAHEEM v. YOOSOOF LEBBE