085-NLR-NLR-V-18-MENDIS-v.-PERIS.pdf
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19J&
[Fen- Bkxch.]
Present : Wood Benton C.J., Shaw J., ftnd De Sampayo A.J.MENDTS v. PEBIS.
.58—1). V. Kalutara, 5,4(te.
Coneurrewc—Civil Procedure Code, ss. 800, Sol, and 802.
Before the sale in execution under writ issued in this case theFiscal had in his hands two writs in Nos. 297 and 537—C. B.Gampola against the same judgment-debtor issued at the instanceof the appellant. The property was seized under all three writ.*before sale. After the proceeds of the sale were deposited in theKachcheri, the appellant procured another writ, D. C. Kandy,21,256,to issue to theFiscalagainst.the same judgment-debtor.
Before money was paid out of Court the Fiscal gave three noticesto the (Kalutara) Court, under section 232, with resptect to thetwo Gampola writs and the Kandy writ.
Held (per Wood Benton C.-T. and Shaw J.), that the appellantwasentitled 16concurrenceinrespect ofthetwoGampolawrits
only.
Held(per I>E SampayoA.J.),thatthe appellant,wasentitled,
to concurrence in respect of his three writs.
PerWood BentonC.J.andShaw J.—TheCivilProcedureCode
has superseded the Boman-Dutch law on the subject of concurrentclaimsof creditors upontheexecution proceeds ofacommon
debtor’s property.
Shaw J.—‘“ The only reasonable interpretation that I think canbe given to section 352 is to confine the section only to the personswhocan underthelawmakeapplicationunder itfor execution—
namely. decree-holders ofthesameCourt—leavingtodecree-
holders of other Courts the rights that appear to have been givento them by the earlier sections to participate in the seizure andsale,and thentoapplyfortheir shareoftheproceedsunder
section 850. "
facts are stated by Shaw -T. as follows: —
The plaintiff having obtained judgment against the defendant,caused a writ of execution to issue to the Fiscal of the WesternProvince for seizure and sale in satisfaction of his judgment.
The Fiscal. seized property of the judgment-debtor on July 11,1914, but the sale was postponed until September 29 at theinstance of the plaintiff. In the meantime two writs of executionin cases Nos. 297 and 587—C. B. Gampola were issued to the Fiscalat the instance of the applicant, the present appellant, and the
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Fiscal in his sale report to the Ealutara Court dated October 8reported that he had seized under these writs as well as under theEalutara writ.
The proceeds of the sale were deposited by the Fiscal in theEalutara kachcheri on September 30 and October 23.
Subsequently the applicant procured another writ to issue tothe Fiscal in another action, No. 21,256—D. C. Kandy, in which hehad also obtained judgment against the same judgment-debtor.
On November 11 the Fiscal, on behalf of* the applicant, gavetliree notices to the Ealutara Court, under section 232 of the CivilProcedure Code, with respect to the amounts 'due under the twoGampola and the Eandy writs.
The plaintiff then moved the Ealutara Court that the proceedsof the execution should be paid out to him in satisfaction of hisjudgment in No. 5,402—Ealutara, and the District Judge, havingheard the proctors for the parties interested, allowed the plaintiff'sapplication, on the ground that the judgment-creditor in the twoGampola and the Kandy cases had not applied to the EalutaraCourt for the execution of the decrees prior to the realization of theassets under section 352 of the Civil Procedure Code, and fromhis order the present appeal is brought.
Bowat K.C., Acting 8.-6., and C. H. Z. Fernando, for appellant.
T. de Silva, for respondent.
Cwr. adv. wit.
July 5, 1915. Wood Renton C.J.—
The facts have been fully stated by my brother Shaw, and Ipropose merely to deal with the important legal question which isinvolved in the appeal. After full consideration, I adhere to theview expressed by Ennis J. and myself in 60—D. C. F. Negombo,No. 1,420,1 that the Full Court must be taken to have held inKonamalai v. Sivaktdanthu2 that the Civil Procedure Code hassuperseded the Roman-Dutch law regulating the concurrent claimsof creditors upon the execution proceeds of a common debtor’sproperty. This proposition is affirmed by Burnside C.J. andClarence J. in express terms, and results by necessary implicationfrom the language used by Dias J. It forms, indeed, the ratiodecidendi of the case. In Raheem v. Yoosoof Lebbe * Layard C.J.,with whose judgment Moncreiff J. agreed, said that with referenceto claims in concurrence the decision in Konamalai v. Sivaktdanthu *had '* always been followed for the last nineteen years,” anddeclined to reserve it for a Full Court. The cases of Meera Saibov. Muttuchetty * and Velaiappa Chetty v. Piteha Matda * are distin-guishable. (See also Muttiah Chetty v. Don MartinesA) The Courts
8. C. Min., May 21,1915.4 (189$) $ C. L. B. $7.
(1891) 9 A C. Cm 203.* (1899) 4 N. L. R. 311.
(1902) 6 N.L.R. 169.< (1904) 2 Bal. 182.
1915.
Mendi*
Peri*
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M15.were dealing there, not with claims toconcurrence by unsecured
Woodcreditors, but with the rights of specialmortgagees of movables—
B®ow CJ. rights which, it was held, had been impliedly preserved by sectionMendie v.^ of the Civil Procedure Code. I donot think that -we are at
Perisliberty to hold, as was done in Mirandov. Kiduru Mohamadu,1
that recourse may still be had to the Roman-Dutch law in regardto claims to concurrence by unsecured creditors. Kouamalai o.Sivaktdanthu2 is an authority, binding upon us, to the contrary.Applying the • principle affirmed in Warren v. McMillan if Co.,*and more recently in 67—D. C. I. Colombo, No. 40,320/ 1 wouldallow the appellant a right of concurrence in Nos. 297 and 537—
R. Gumpola, in which the Fiscal had in hi6 hands at the date ofsale in execution the appellant’s writs, as well as the writ of theplaintiff, but not in D. C. Kandy, No. 21,256, in which he had nowrit in the Fiscal’s hands at the date of sale.
The.appellant should have the costs of the appeal.
Shaw J.—'
i
The case raises a somewhat difficult aud important question as tothe rights of judgment-creditors to participate in the proceeds ofan execution against the common judgment-debtor.
[His Lordshif> stated the facts and continued]: —
In my Opiuion the rights of judgment-creditors a6 to seizure andsale of the judgment-debtor’s property and their rights to participatein an execution on his property are now governed by the provisionsof the Civil Procedure Code, which has superseded the Romaw-Dutch law on the subject. This was, in m3* view, clearly decidedby the Full Court so long ago as 1891 in Konamalai v. Sivaktdanthu.*This decision is binding upon us, and it has been followed in numerouscases. In Raheem v. Yooeoof Lebbe 5 the Court was asked to reservethe case for the consideration of the Full Court in order that thedecision in Konamalai v. Sivaktdanthu 9 might be reconsidered, butit refused to do so, saying that Konamalai v. Sivaktdanthu 3 hadalways been followed for the last nineteen years; so late also asthe present year, in S. C. 60—D. C. Negombo (Supreme Court Minutesof May 21), the case referred to was recognized as a binding authorityfor the proposition that the Roman-Dutch law regarding concurrenceis now superseded by the Civil Procedure Code.
I am unable to assent to the argument based on the caseof Mirando v. Kiduru Mohamadu1 that, notwithstanding theprovisions of the Code, the Roman-Dutch law regarding concurrenceis still in force. I do not think the decision in that case gees to
(1904) 7 N. L. R. 280.3 [1892) 1 8. C. R. 86.
3 (1491) 9 8. C. C. 203.3 (1919) 8. C. Min., June 2,1915.
4 (1902) 6 N. L. R. 169.( 813 )
that length, but if it dojsf it is in conflict with the Full Courtdecision, and with what appears to me to be the dear intention ofthe Legislature.
When, however, we come to look at the actual provisions of theCode many difficulties of construction arise, and I am by no meanssure that any such sweeping change to the common law has beenmade by it as it seems to have been in some cases assumed. Bysection 218 a judgment-creditor has power to seize and sell, orrealize in money, by the hands of the Fiscal, any property belongingto the judgment-debtor, with certain specified exceptions. Thiswould seem to include property already seized by the Fiscal.Countenance for this is to be found in section 351, which refers toproperty seized in execution of decrees of more Courts than one.When the Fiscal sells, he has, by section 255, to specify in the noticeof sale* the action in which, and the amount of money for the levyof which, the writ issued. In the case, therefore, of a seizureunder more decrees than one, he would have to mention the variousactions and amounts.
The sale having been effected under all the writs, the amountrealized has, by section 851, to be received by the Court of highestgrade from which one of the writs issued, or, where there is nodifference in grade between such Courts, by the Court under whosedecree the property is first seized.
The property has thus been sold at the instance of, and on behalfof, the various creditors whose writs were in the hands of the Fiscal,and I do not see anything in the Code which prevents such creditorfrom giving notice, under section 350, to the Court holding themoney, of their claim to the proceeds, to which they appear to beentitled equally with the judgment-creditor of that Court, theproperty having been sold under all the writs.
A difficulty undoubtedly arises with regard to section 352. It isobviously impossible for anyone, in the case of an execution by thehands of the Fiscal, to apply to the Court " by which such assetsare held " for execution of a decree for money against the samejudgment-debtor " prior to the realization," for until the sale takesplace the assets are not held by the Court; and if we read the wordsto mean “ by which such assets will eventually be held," it will stillbe impossible for any decree-holders of other Courts to participate,because they can only apply to the Court in which they have gotjudgment for writs of execution, and it is obvious from section 351that the Code intends to provide for seizure in execution of decreesof more Courts than one. Even if this difficulty could be got over,I fail to see how anyone could know what Court to apply to, forin the case of seizures in execution of decrees of more Courts thanone, the Court to hold the money is the Court of highest grade, andwhat Court that will be cannot well be ascertained until the seizureand sale has been completed.
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Shaw «T.
Mendis e.P*ri*
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Shaw J.
Mendie«.PerU
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The section seems to be urgently in need of amendment, and theonly reasonable interpretation that I think can be given to it is to-confine the section only to the. persons who can under the law makeapplication under it for execution—namely, decree-holders of thesame Court—leaving to decree-holders of other Courts the rightsthat appear to have been given to them by the earlier sections, toparticipate in the seizure and sale and then to apply for their shareof the proceeds under section 350. This right seems to have beenrecognized by Burnside C.J. in Konamalai v. Sindkvlanthutx whenhe said, in refusing the claimant’s right to participate, " he had noexecution in the hands of the Fiscal so as to make the seizure ajoint seizure under his as well as the plaintiff's writ.*'
In the present case I think the applicant ought to be permitted,under section 350, to participate in the proceeds of the execution inrespect of the two Gampola writs, under which the Fiscal sold at thesame time as he sold under the plaintiff’s writ, but that in respectof the Kandy case he should not participate, he having had nowrit of execution in that case in the hands of the Fiscal at the dateof the sale.
I would set aside the order appealed from and send the case backto the District Judge, with directions that the appellant i6 entitledto participate in the money in Court with respect to the amountfor which he issued execution in cases Nos. 297 and 537—C. R.Gampola. I would give the appellant the costs of this appeal.
De Sampayo A.J.—
In my judgment in Mirando v. Kid-uru Mohamad a3 I ventured toexpress my views as to the construction of section 352 of the CivilProcedure Code, and nothing that has been urged in the argumentof the present case has assisted me to form a different opinion.I should, however, refer to one point which undoubtedly presents adifficulty in the application of section 352. The section speaks ofpersons who have applied to Court ° prior to the realization ” ofthe assets. This was emphasized, in Robson v. Fernando,* and ifthe words quoted are intended to lay down an absolute conditionthat the claimant should apply before the execution sale, then Ido not see why resort should not to be had to the provisions ofsection 350. It was said in Robson v. Fernando 3 that section 350and section 352 should be read together, and that even a personwho is entitled to apply under section 350 must observe the time-limit provided in section 352. With the greatest respect to (helearned Chief Justice who decided that case, I am unable to agreeto that view. Section 350 is complete in itself, and prescribes itsown time-limit. It only requires that the claim should be notified
1 (Ml) 9 S. C. C. 203.* (1904) 7 N. h. R. 230.
3 (1912) IS N. L. R. 295.
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to OourV " before tlie proceeds of execution have been paid to the **>18.flirty in whose favour th« execution issued." The appellant in db sawayoth>.a -case has fulfilled that condition. Then it is contended that ^the appellant cannot be said to have notified his claim to Court at Mmdh v.all, inasmuch as the only notice to Court is that given by the Fiscal Periswho seized the fond m Court under section 262 of the Civil ProcedureCode at the instance of the appellant, and reference is made toLetcfcmanen Chetfy r. Abdul Rqheman.1 But that decision does notsuppcjrt tiie argument, for there the claimant had merely put hiswrit rn_ the hands of the Fiscal, i$nd no prohibitory notice had beengiven'to the Court, as in this case, under section 232. Nor do Iread Election 350 as absolutely requiring that the notice should begiven’by the claimant personally. As was suggested by my Lordthe Oiiief Justice at the argument of this appeal, the words “ byany person oj?-persons " may refer to " claim " and not to " notice."
However ths may be. I do not see why in such circumstances asthese the notice should not be given through the Fiscal, and aprohibitory notice is as strong a notice of claim as possible. More-over, in this particular case the appellant's status as a claimantwas recognized by the Court, and notice was issued to him when therespondent moved to draw the proceeds, and I am not disposedto give effect to any objection to the form of notice or the mode ofgiving it.
In my opinion the appeal as a whole should be allowed with costs.
Set aside.
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> (190B) 12N.L.R. m