078-NLR-NLR-V-27-SUPPRAMANIAM-CHETTY-v.-MOHAMMADU-BHAI-et-al.pdf
Present: Dalton J. and Jayewardene A. J.SUPPRAMANIAM CHETTY v. MOHAMADU BHAI el ah1§3—D. C* (Inly.) Kandy, 33,020.
Concurrence—Seizure of money in hands of a public officer—Payment
into Court—Seizure under another writ—Claim to concurrence—
Realization of assets—Civil Procedure Code, ss. 350 and 352.
A sum of money in the hands of a public officer was'seized inexecution of a writ on August 5, 1925, and a notice was issued tohim on August 17 to show cause why he should not pay the moneyinto Court.
On August 31 he was ordered to pay the money into Court, andthe money was deposited to the credit of the case on October 10.
The appellants, who had applied for execution against the samejudgment-debtor in another Court, obtained writ and seized thesaid sum of money on August 27, and made a claim for concurrenceon October 2.
Held, that the appellants were entitled to claim concurrence.
A PPEAL from an order of the District Judge of Kandy. The
plaintiff in the action, who had 'obtained judgment for asum of Rs. 500, seized on August 5, 1925, a sum of money, whichhad been deposited by the judgment-debtor with the GovernmentAgent, Central Province. Notice was issued on the GovernmentAgent 'on August 17 to show cause why he should not pay intoCourt the sum seized. On August 31 order was made requiring theGovernment Agent to deposit the money in Court, which he did onOctober 10. The appellants, who are judgment-creditors of thesame judgment-debtor in C. R., Kandy, Nos. 3,642 and 3,643, alsoseized the money under their writs oh August 27, 1925, and claimedconcurrence on October 2. The learned District Judge held thatthe appellants were not entitled to concurrence.
H. V. Perera, for appellants.
Kewneman, for respondent.
Mrch 5, 1926. Jayewabdene A.J.—
This appeal raises a question with regard to the appellants’ rightto claim concurrence in a sum of money brought to the credit ofthe action. A sum of money had been deposited with the Govern-ment Agent, Central Province, by the judgment-debtor. Theplaintiff in the action, who had obtained judgment for a sum ofRs. 500, had the property seized under section 232 of the Civil
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1926.
J A YE WAR-
BENE A.J.
Supprama-niam Oheltyv. Moha-madu Bhai.
Procedure Code, and it was subsequently, on the orders of the Court,deposited to the .credit of the case. The appellants, who arejudgment-creditors of the same judgment-debtor in two cases,C. R., Kandy, Nos. 3,642 and 3,643, also had this money seizedunder their writs. Later they preferred a claim for concurrencein this action. The respondent disputes their right to concurrence,and the question for decision is whether the claim can be sustainedunder the code.
The facts on which the contest between the parties arises are asfollows:—
July 29,1925.—Respondent’s writ issued for the seizure and saleof the defendant’s property.
August 5.—Seizure of money in the hands of the GovernmentAgent, Central Province.
August 19.—Notice issued on the Government Agent, CentralProvince, to show cause why he should not pay into Courtthe sum seized under writ.
August 24.—Letter from Government Agent, Central Province,informing the Court that there is a sum of Rs. 407 dueto the judgment-debtor and that Government makes noclaim.
August 31.—Order on the Government Agent, Central Province,to deposit the money in Court.
October 10.—Money deposited to the credit of the case.
The appellants had issued writ and seized the sum of money inthe hands of the Government Agent, Central Province, on August 27,and on October 2 made their claim for concurrence. On thesefacts the learned District Judge has held that the assets must beconsidered as realized under section 352 of the Civil Procedure Code onAugust 24, when the Government Agent, Central Province, informedthe Court that he had no claim on the fund which was in his hands,and that as the seizure by the appellants was subsequent to suchrealization, they were not entitled to claim concurrence. On appealit is contended that the assets were not realized within the meaningof section 352 until the money was deposited in Court on October 10,or at earliest till August 31, when the Court directed the GovernmentAgent, Central Province, to pay the money into Court, and thatas the appellants had seized the money on August 27 they areentitled to concurrence. In -the lower Court the argument
proceeded on the basis that section 352 governed the decision ofthe question. ■ But it has been pointed out to us by learned Counselfor the respondent that section 352 can have no application to thiscase as the parties are not applying for the execution of decrees of
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the same Court. That seems to be correct. See Mendis v. Peris1and Meyappa Chetty v. Weerasooriya,2 both of which are Full Benchdecisions, and over-ruled Mirando v. Kiduru Mohamadu3 andfollowed Konamaiai v. Sivakvlanthu,4 In the first-mentioned case(supra) Shaw J. referring to section 352 said :—
“…. the only reasonable interpretation that I think
can be given to it is to confine the section only to thepersons who can under the law make application under itfor execution—namely, decree-holders of the same Court—leaving to decree-holders of other Courts the rights thatappear to have been given to them by the earlier sections,to participate in the seizure and sale, and then to applyfor their share of the proceeds under section 350. Thisright seems to have been recognized by Burnside C.J. inKonamaiai v. Sivakvlanthu (supra), when he said in refus-ing the claimant’s right to participate, * he had noexecution in the hands of the Fiscal so as to make theseizure a joint seizure under his as well as the plaintiff’swrit.’ ”
1926.
Jaybwab*DENIS A. J.
Supprama-niam Chettyv. Moha-madu Bhai
The rights of the parties here must, therefore, be decided undersection 350, and it was held in the two Full Bench cases referred to,that under section 350 the right to share in the assets realized mustbe restricted to creditors who had writs in the hands of the Fiscalat the date of realization. In the present case, therefore, theappellants are entitled to claim concurrence only if they had theirwrits in the* hands of the Fiscal at the date the assets were realized.When can assets be said to be realized under section 232 of theCode ? Learned Counsel for the respondent contends that underthat section assets are realized as soon as a notice is served on apublic officer requesting him to hold property in his custody ordeposited with him subject to the further orders of the Court. Iam unable to agree with his contention. That section indicatesthe mode of seizure when the property is in the hands of a publicservant. The seizure must be by a notice, a form of which is givenin the schedule (see Form 47 of Schedule II.), requesting the publicofficer to hold the property subject to the further orders of theCourt, and section 233 enacts that “ the notice necessary to effectseizure under sections 229 and 232 may be signed and served bythe Fiscal under the authority of the writ of execution alone.”The notice, in my opinion, is in effect a prohibitory notice and issimilar to the one issued under section 229. Mr. Keuneman drewattention to the difference in the wording of the two sections andin the forms of notice under them. No doubt in the case of aperson other than a public servant or a Court the notice prohibits
1 {1915) 18 N. L. jR. 310,3 (1904) 7 N. L. J?. 280.
H19I6) 19 N. L. R. 79.4 {1891) 9 S. C. C. 203.
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Supprama-niam Ckettyv. Moha-madu Bhai
and restrains until the further order of the Court, but in the case ofa public servant or a Court no such injunction was necessary, andmore polite language is used. I may point out that under theIndian Code a notice under section 272, now Order 21, rule 52, whichcorresponds to section 232 of our Code, is entitled a " ProhibitoryOrder ” (see Form No. 142 of the old Code and Form No. 21 ofAppendix E of the first Schedule of the Code of 1908). In thelocal cases, Thiakarajapillai v. Ranjanather1 and Girigoris v. TheLocomotive Superintendent? notices under section 232 are calledprohibitory notices. In Katum Sahiba v. Hajee Badsha Sahib?which has been over-ruled on another point by the case reported in44 Madras and referred to later, the Court, after referring to theeffect of an attachment under section 64 of the present Code, said :—
“ Much less can it be contended that an order of the Court underrule 52 (Order 21) confers any priority upon the person atwhose instance the order was passed, since it amounts atmost to an injunction restraining any dealing with thefund (see Form No. 21* Appendix 'E of the first scheduleof the Code), and merely renders any payment to thejudgment-debtor, contrary to the attachment therebyeffected, void as against all claims enforceable under theattachment, including claims for the rateable distributionof assets (section 64).”
The notice under section 232, in my opinion, amounts to aseizure by prohibitory notice and has the same effect as a noticeunder section 229, which is expressly prohibitory. The distinctionsought to be drawn by learned Counsel for the respondent betweena notice under section 229 (a) and one under section 232 doesnot exist, and the decisions on section 229 cited by the learnedCounsel for the appellant therefore apply. In Soyza v. Weera-koon * it was held that the seizure by the Fiscal of money due to ajudgment-debtor, in the hands of a third party (Government Agentof Ratnapura), is not realization of the asset, and it was openfor other creditors who have applied at that stage for executionof money decrees against the same judgment-debtor to claim inconcurrence. It does not appear clearly whether the money in thiscase was seized under section 229 or section 232, probably it wasunder the former, as reference is made in the judgment to section230. This judgment is, therefore, an authority for the contentionthat the issue or receipt of a prohibitory notice does not amount torealization. See also the earlier case of Konamalai v. Sivakulanthu(supra), in which the same view appears to be taken. In India a likeinterpretation has been adopted, and it has been held that moneydue to the debtor attached in the hands of the third party by aprohibitory notice was realized within the meaning of section 2951 {1908) 3 A. C.R. 123.3 (1913) 38 Mad. 221.
» (1912) 15 X. L. R. 113.4 (1893) 2 C. L. R. 178.
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of the old Code, which corresponds to section 352 of our Code,when paid into Court, and was liable to rateable distribution amongthose who applied before payment into Court, Siriniva&a Ayyanganv. Seetharamayyan.1 Section 73 of the present Code, which hastaken theplace of section 295, and substitutes the words “ before thereceipt ” of the assets for the words “ prior to realization,” has beensimilarly construed. Thus, in Visvanadhan Chetty v. ArunachalamChetty* which is a Full Bench decision, Wallis C. J. in the course ofhis judgment said :—
1926.
Jayewab-DENE A.J.
Supprama*niam Chettyv. Moha*madu Bhai
“the order of attachment does not of itself effect
a transfer to the credit of the suit in which the attachmentis made so as to constitute a receipt of assets within themeaning of section 73. The money may not be availableas being already subject to another attachment, possiblyin another Court, and it is only when the Court comes tothe conclusion that there is no objection and orders themoney, or so much as it thinks necessary to satisfy thedecree-holders who have applied to it for execution, to betransferred to the credit of the first attaching creditors*suit which it is engaged in execution, that there can besaid to be receipt of assets within the meaning of section 73,and that a rateable distribution can be made.’*
Further, section 232 uses the term “property,” which wouldinclude not only money but all movables. If, therefore, the propertyseized under this section is movable property, there can be norealization by the mere issue of a notice, but the property wouldhave to be sold in the usual way before assets could be realized. Inmy opinion, therefore, both seizure and realization are not effectedby the single act of the Court or of the Fiscal in issuing a noticeunder section 232, but there must be a further act by the Court-directing the money to be brought to the credit of a case beforethere can be realization where the property is money.
For these reasons I hold that the order of the learned DistrictJudge is erroneous, and that the appellants are entitled to share inthe distribution of the assets brought into this case by the order ofthe Court of August 31. The appeal is allowed, with costs.
Dalton J.—I agree.
Appeal allowed.
1 (7S05) 19 Mad. 72.
(1920) 44 Mad. 100.