MIRANDO v. KIDURU MOHAMADU

067-NLR-NLR-V-07-MIRANDO-v.-KIDURU-MOHAMADU.pdf


1904.
July 21,
[ 280 )
MIRANDO v. KIDURU MOHAMADU.D. C., Negombo, 4,041.
Concurrence between judgment-creditor*—Civil Procedure Code, ss. 272, 850, and
352—Decrees of different courts.
A, having obtained judgmentagainst£ in the DistrictCourtoi
Chilaw, claimed concurrence astothe priceof thepropertyof B sold
by the Fiscal under a writ ofexecution suedout byC from the District
Court of Negombo against the safhe debtor.
C opposed A's claim on the ground (1) that it came too late because,' upon an order of credit allowedby theDistrict Court of Negombo,he
had purchased B's property attheFiscal’s sale, and(2) thatsection 852
of the Civil Procedure Code did not apply to decrees of different Courts.
Held that, as the sale to C was,still unconfirmed and no order as to setoff made under section 272 of the CivilProcedure Code, andas section
350 contemplates decree-holdersofdifferentCourts,A wasentitled to
concurrence, and for that purposeC wasordered to bring intoCourtthe
amount of money for which he had obtained credit.
T
HIS was an appeal against an order of the District Court ofNegombo dismissing the appellant’s claim for concurrence
in the proceeds realized under a writ of execution issued by theDistrict Court of Negombo.
It appeared that the defendant in the present action was alsothe defendant in action No. 2,545 of the District Court of Chilaw;that the plaintiffs in both cases were unsecured creditors; thatwrits of execution were issued out in both cases and certainproperty seized under each writ; that the sale of the propertyfixed for the 12th February, 1904, under writ 2,545 of the DistrictCourt of Chilaw was postponed in consequence of a claim pre-ferred by a certain person; that that claim was disallowed; and thatin the meanwhile the plaintiff in the present case had the pro-perty put up for sale under his writ and became the purchaser ofit, having been allowed an order of credit. The plaintiff in D. C.,Chilaw, 2,545, moved for and obtained from the District Courtof Negombo a notice on the purchaser to bring into Court theamount for which he had received credit, in order that the moneymight be divided pro rata, between the two decree-holders.
. «
The plaintiff in the present case opposed the claim for concur-rence on the ground that the money, having already got into hispossession, was beyond the control of the Court, and that section352 of the Civil Procedure Code did not apply to decrees*ofdifferent Courts.
( 281 )
The District Judge, Mr. F. Bartlett, held as follows:—
“ As to the first point, 1 gather from the judgment of Clarence,A.C.J., in 1 S. C. B., p. 160, that the point at which the purchasemoney of a plaintiff bidding at a Fiscal’s sale gets home has notbeen settled. In the case of a purchase by a plaintiff the purchaseamount is never actually deposited in Court. The transaction ismerely a paper one, and it appears to me that it is incompleteuntil the Court has confirmed the Bale. Till that point I wouldhold, in the absence of further authority, that the money does notget home to the plaintiff.<1
"On the second ground, section 295 of the Indian Codp maybe taken as practicallythe same as section 352ofthe Ceylon
Code. In 1. L. B. 4,Bombay, p. 472, itwasheld that con-
currence under section 295 did not apply to decrees of differentCourts; and in I. L. R. 6, Bombay, p. 198, the Chief Justice,discussing the last case, remarked on the portion of the reasoningof the learned Judge of that Court which this Court adoptedand on which it acted, as follows: ‘ The words in section 295‘ more persons than one’ must, I think, betakentomean more-
decree-holders than oneof the same Court,anddonot include
outsiders or decree-holders of other Courts This construc-
tion is warranted by the words of section 295. The wordsare, ‘ have prior to the realization applied to the Court by whichsuch assets are held for execution of decrees for money againstthe same judgment-debtor.’ These words, clearly indicate thatthose decree-holders only could share in the rateable distributionwho have actually applied for. execution of their decrees to theCourt holding the assets.
"Here the Court holding the assets is the .District Court ofNegombo. To this Court the petitioner (the plaintiff in 2.545,D. C., C-hilaw) has made no application prior to the realization.He had no status for doing so. The case is on all fours with thetwo Bombay cases referred to, and following their authority I holdthat the petitioner cannot claim concurrence. His applicationis dismissed with costs.’’
The petitioner appealed. The case came on for argument on the20th June, 1904, before Middleton, J., and Sampayo, A.J.
H. J. C. Pereira, for appellant.
H. Jayawardene, for respondent.
•Cur. adv. vull.
21st July, 1904. Sampayo, A.J.—
The petitioner, appellant, is the judgment-creditor in D. C.,Cfilaw, No. 2,545, and the defendant and judgment-debtorin this case is also the defendant and judgment-debtor in the
1904.
July 21.
( 282 )
1904.
July 21.
Sampayo,
A.J.
Chilaw oase. Writs of execution in both cases were, apparentlyabout the same time, issued to the Fiscal of the North-WesternProvince, who seized under both writs certain lands situated in .theDistrict of Kurunegala, the sale under petitioner’s writ being fixedfor the 12th February, and the sale under plaintiff’s writ for the20th February, 1904. A day before the former date a claim to thelands was made in the petitioner’s execution proceedings by a thirdparty, who, however, failed to appear at the claim inquiry on 12thMarch, 1904, with the result that the claim was dismissed. In themeantime the sale under plaintiff’s writ took place on the 20thFebruary, 1904, the plaintiff himself becoming purchaser andobtaining credit from the Fiscal for the amount of his judgmentdebt in pursuance of an order of Court to that effect. Why thethird party claimed the lands as seized under petitioner’s writ onlyand not as seized under plaintiff’s writ also, and how the Fiscalcame to sell the property while the claim was still undisposed of,does not appear. The petitioner impeaches the claim as a bogusclaim made with the intention of delaying the petitioner and.enabling the plaintiff to realize the property for his own solebenefit, and to my mind there are good grounds for this suggestion.However, the sale did take place and was reported to the NegomboCourt in this case, the Fiscal depositing in Court the balancepurchase money. The petitioner as judgment-creditor in theChilaw case then came into this case and applied that the plaintiffbe ordered to bring into Court the amount for which he hadobtained credit, and that the money realized by the sale of theproperty be rateably divided between the petitioner and plaintiff.
The application was opposed on two grounds. The first objec-tion was based on an argument that the plaintiff having alreadyobtained credit, the application was too late, but the objection wasrightly over-ruled by the District Judge, as the sale was stillunconfirmed and; no order as to set off had been made undersection 272 of the Civil Procedure Code (Perumal Chetty v. Perera,2 Browne, 1; and Sadayappa Chetty v. Siedle, 2 Browne, 3). TheDistrict Judge, however, disallowed the application on the secondobjection taken, viz., that under seddon 352 of the Civil ProcedureCode only a holder of a decree of the same Court as holds the assetsand not of a different Couft is entitled to claim in concurrence.'The petitioner has appealed from this order of the District Judge,and under the circumstances above stated he appears to me to beentitled to consideration, unless we are absolutely compelled bylaw to deny him any relief.
The words of section 352 are “ whenever assets are realized* bysale or otherwise in execution of a decree, and more persons than
( 283 )
1004.
July 21.
Samfayo,A.J.
This section corresponds to section 295 of the Indian ProcedureCode, which has been construed in the Indian Courts as requiringthat the rival claimants to the proceeds of sale should be holdersof decrees of the same Court c#9 of decrees to execute whichapplication is made to the same Court. See the case cited to usof Krishnashankar v. Chandra Shankar (I. L. R. 5, Bombhy, 198).
The provision as so read has a meaning in India which it has notin Ceylon. For there a decree may be sent for execution fromone Court toanother,andmaybe executed either by the Court
which passedit or bytheCourtto which it is sent for execution
(see sections 223 and 224 of the Indian Code), and so the provisionof section 295 as to more persons than one “ applying to the Courtby which the assets are held for execution of decrees ” becomesintelligible and significant. But we have no provision in Ceylonfor the transfer of decreesfor executionfrom one Courtto
another and, consequently, for the application for execution toany Court other than the Court which passes the decree, and if weare compelledto givethesamestrict meaning to section 352 of
our Code as has beengiven to section 295 of the Indian Code, it
seems to me that much injustice would be done to judgment-creditors in Ceylon. But I do not think we are so compelled.
In the first place, I thinkour rulesofprocedure shouldbe
construed and applied withreferencetoour substantive law,
which in this matter is the Roman-Dutch Law. Now, under'the Roman-Dutch Law, thecreditorsareentitled to claimin
concurrence the proceeds of sale of the, common debtor’s property,whether they have obtained judgments in the same Court or not.
It is true that this Court has decided ('Konamalai v. Sivakulanthu,
9 S. C. C. 203) that since the enactment of the Code, by reason ofsection 352, claimants must qualify themselves (1) by obtainingdecrees and (2) by applying for execution prior to the realizationof the assets, and we must therefore hold that the Roman-DutchLaw has been to that extent modified by the Code. But m!stit also be held that the Roman-Dutch' Law has been further ,modified to the extent of requiring that the claimant should haveobtained his decree in the same Court as £bat which holds theassets? I think not. If such 'were the intention of the Code,
Section 352 would, instead of leaving that requirement to be-inferred, have contained much' plainer language to show such a.
22-
one have, prior to the realization, applied to the Court by whichsuch assets are held for execution of decrees for money againstthe same judgment-debtor, and have not obtained satisfactionthereof, the assets, after deducting the costs of the realization,shall be divided rateablv among all such persons.”
( 284 )
1904.
Jidy 21.
.-Saupayo,
A.J.
material alteration in the rights of creditors to concurrence underthe Roman-Dutch Law. I say inferred, because it is not expresslyso provided in section 852, but, since there is no provision forthe transfer of decrees from one Court to another for execution,we are expected to conclude that when section 352 spoke of“ applying to the Court by which such assets are held for■execution of decrees,” it meant to refer to decrees of the sameCourt. I am not disposed to go that length and to take so muchaway from the substantive rights of a creditor under the Roman-Dutch Law. I think that no violence will be done to the pro-vision of section 352 if we read the expression “ for execution ofdecnees *’ as meaning “ for satisfaction of decrees,” which wouldinclude the case of application for payment of money realized byone Court in satisfaction of decrees of other Courts. I may addthat, even since the enactment of the Code, it has been theconstant practice, notwithstanding section 352, for persons holdingdecrees of different Courts to be allowed to claim in concurrenceassets realized by one Court, and as an illustration1 of this I mayrefer to the case Soysa v. Wirakoon (2 C. L. R. 178).
Moreover, so far as I can see, there is nothing in the IndianCode corresponding tosection350of oUrCode. Thatsection
inter alia,requires theCourt,before making an orderfor the
payment of money realized by execution, to give notice to ‘‘..allpersons whose claims shall have been notified to the Court, ”to hear and adjudicate upon such claims, and to make such order“ as the justice of the case may require.” Now, who are thepersons whose claims are notified to the Court ? Surely, this;does not mean merely holders of decrees of the same Court.These decree-holders need not notify their claims at all, for theCourt necessarily would already have notice of their claims.Further, notifying claims is something different from applying to.the Courtfor execution. Tomymindthis sectioncontem-
plates claims by holders of decrees of Courts other than the Courtby which the assets have been realized and are held, and as ‘‘ thejustice ofthe case ”clearlysorequires I would allow the
petitioner, who has fulfilled the requirements laid down in thedecision in 9 S. C. C. 203, to come into this case under section
O
3(50 and to prosecute his claim to the proceeds of sale.
In my opinion the ot'der appealed against should be set asidewith costs in both Courts, and the plaintiff should be ordered tobring into Court the amount of money for which he obtainedcredit from the Fiscal, and the Court should be directed tohear and adjudicate upon the claim made by the petitioner-appellant.'
( 285 )
Middleton, J.—
I agree with the order proposed by my brother. Assuming thatffao Roman-Dutch Law as to non-preferent creditors sharing con-currently in the assets of their common debtor is the substantivelaw in Ceylon, it has been to a certain extent limited by the FullCourt decision reported in 9 S. C. C. 203, but not, I think, alto-gether repealed by section 852 as the Judges in that case wouldappear to think.
– Section 352 has no doubt had t%e effect given to it by thatjudgment, but as execution in Ceylon can only be granted by theCourt issuing the decree I feel constrained to say that,. in myopinion, the section means that only decree-holders of the sameCourt can participate as therein laid down upon fulfilling theconditions of the section, but that their right to a rateable divisionis an absolute one.
Under section 352 the assets must be held by the Court originallyordering execution, which must be the Court issuing the decree, orthey would not get them; and the person applying must havea decree of that Court, or he cannot apply to it for execution. Theinference therefore is that only decree-holders of the same Courtcan participate under that section. Section 851 is the sectionunder which the present case should have been dealt with, butthere is no evidence to show whether the property was first seizedunder the appellant’s or the respondent’s decree.
If it was seized first under the appellant’s decree the Fiscal wasright in reporting the case under section 241 when the claim wasmade to the Chilaw Court.
It seems to me, however, that he might well have reported it tothe Negombo Court also; and I am surprised that he proceededwith the sale at all under the circumstances.
There still, however, remains section 350, the last two para-graphs of which appear to be applicable to such a case as this.
The first of these paragraphs must have reference to claimsother than those of co-parties, as the preceding paragraph ordersthat notice must be given to*them before payment out of Court.
Conceivably, the claimants contemplated there may be decree-holders of others Courts, or registered bill of sale holders^ uponwhose claims order is to be made as the justice of the caserequires.
The appellant here did make a claim to tha Negombo Court onthe 18th March, 1904, by petitiont and affidavit, and I think that heij entitled to have notice served on him under that last mentionedparagraph and to an adjudication, of the Court upon his claim uponthe facts.
1904.
July 21.
( 286 )
1903.
Aujuat 17.
DEMMER v. GUN AWARD ANA.
D. G., Galle, 6,978.
Appeal petition—Presentment to the secretary—Civil Procedure Code, s. 764.
If a petition of appeal is in order and purports to be signed by theappellant’s proctor, it should be received by the secretary.
It is not necessary .for the proctor himself to personally hand it to thesecretary.6
I
N this action for malicious prosecution a decree was entered' for plaintiff on 27th July, .1903. Mr. N. D. Abeyasingha
was proctor for defendant. On 7th August the following entrywas made in the journal minutes: —
A
“ A petition of appeal on behalf of the defendant is presentedto the secretary by a proctor’s clerk. The secretary submits tome for instructions whether the petition of appeal should beaccepted.
“ I refused to accept the petition of appeal for the reason recordedby me in a memorandum, which, together with the petition o£appeal, is returned to the party who tendered. ”
H. Jayawardene applied to the Supreme Court on 17th Augustfor an order on the District Judge to receive the defendant’apetition of appeal.
H. Jayawardene, for appellant .^–The District Judge declinedto forward the petition on the ground that it was not tenderedby the proctor who represented the client, but by another mana proctor’s clerk. It matters not who hands the petition to. thesecretary. It is signed by the Proctor, Mr. N. D. Abeyasingha,and is in' order under section 755 of the Civil Procedure Code.The order of refusal professes to be made under section 754, andthe Judge relies upon the case reported in 2 C. L. B. 118. Thepetition referred to in that case was sent by post, and was held tobe bad. That was before the present Code. Delivery by post isgood under the present Code. [Middleton, J.—What is the prac-tice?] The proctor signs thd petition and tenders it. There isnb special meaning ■ to the word ‘ ‘ present ’ ’ occurring in section754, and I know of no authority contrary to the practice.
17th August, 1903. 'Middleton, J.—
In this case it would appear Hhat the petition of appeal was■tendered to the Secretary of the District Court of Galle on a certafnday by the clerk of the proctor who was concerned for the
( 287 )
appellant. The secretary submitted the question "to the District 1903.Judge, whether it should be received by the Court under section August 18.754 of the Civil Procedure Code. The matter having been con- Middleton,sidered by the District Judge, he directed that the petition of J-appeal should not be received, basing his decision apparently onthe analogy of a case reported in 2 C. L. R. 118 in reference tocriminal cases. It would appear that the petition in question wasduly signed by the proctor concerned, and purported to be inorder as the petition of the appellant.
In my opinion it is not neoes|ary for the proctor himselfmanually to present the petition *to the secretary, nor has theword “ present ” In the second paragraph of that section that mean-ing. If the petition is in order and purports to be signed *by theproctor, with whose signature the secretary of the Court in almostevery case would be acquainted, it should be received, although theproctor himself did not personally hand it over.
I think this petition should be received as and from the dateon which it was tendered .to the Secretary of the District Courtby the clerk of the proctor; the prescribed time for furnishingsecurity to commence to run from the date of the return of thisrecord to the District Court.
Grenieh, A.J.—I agree.