RAHEEM v. YOOSOOF LEBBE.

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. 232 and 352-Power of Collective Court to over-rule its own decision.

The provision in section 352 of the Civil Procedure Code that where assets have been realized by a sale in execution of a decree and more persons than one have prior to the realization applied to the Court in which such assets are in deposit for execution of decrees for money against the same judgment-debtor, the assets shall be divided rateably among all such persons, only affects cases where the competition is between holders of money decrees.

Therefore, where three money decree-holders competed for a sum of money brought into Court, and one of them did not appear to have had a decree in his favour at the time the assets were realized by sale,-

Held, that such a decree-holder was not entitled to concurrence under section 352 of the Civil Procedure Code.

Reading section 352 with section 232, the intention of the Legislature appears to be to preserve the preferential rights of special mortgagees.

Layard, C.J.-I am doubtful whether the Collective Court has the power to over-rule a judgment of the Collective Court.

UPON a writ of execution issued at the instance of the plaintiff in this case certain movable property belonging to the defendant was sold by the Fiscal and a sum of money levied and brought into Court. The plaintiff in suit No. 15,234, who also held a writ against the defendant, claimed concurrence with the plaintiff in the present case. After the Fiscal had realized the money brought into Court plaintiff in suit No. 16,345 obtained a decree against the defendant and caused the money in deposit to

be seized. Thereupon the writ-holder No. 15,234 moved for and obtained a notice on the writ-holder No. 16,345 to show cause why the amount in deposit should not be divided between himself and the plaintiff in the present case, to the exclusion of the writ-holder No. 16,345.

This motion and the motion of the writ-holder No. 16,345 for concurrence with the present plaintiff and the writ-holder No. 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 the fund now in Courts is not ' property ' under section 232 of the Civil Procedure Code, but ' assets ' realized by sale under section 352, and also that plaintiff in 16,345 has not duly established by proof 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 costs against the plaintiff in 16,345. "

The plaintiff in 16,345 appealed.

Bawa, for appellant.

F. de Saram, for respondent.

The cases cited at the argument (which took place on the 5th December, 1902) appear in the judgment of the Chief Justice.

Cur. adv. vult.

9th December, 1902. LayaRd, C.J.-

A sum of Rs. 859 is in deposit in this case, being amount realized by the sale of certain property of the defendant which had been sold in execution under a writ against him. After such sale the amount mentioned was attached by the appellant. The first respondent, a judgment-creditor of the defendant in another case, who had previously claimed concurrence with the plaintiff in this case, noticed the appellant to show cause why the said sum should not be divided proportionately between himself and the plaintiff in the present case, to the exclusion of the appellant. The appellant himself moved for concurrence with the first respondent and the plaintiff in this action.

The motion of the first respondent for concurrence to the exclusion of the appellant and that of the appellant for concurrence with the first respondent and the plaintiff in this action were discussed before the District Judge on the same day, and the Ju

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