SUPRAMANIAN CHETTY v. SIRIWAKDANA et al.

Present: The Hon. Mr. A. G. Lascelles, Acting Chief Justice, and
Mr. Justice Middleton.

SUPRAMANIAN CHETTY v. SIRIWAKDANA et al.

D. C., Colombo, 14,570.

Seizure-Private sale after seizure-Subsequent judgment-creditors-'" Claims enforceable under the seizure "-Concurrence-Civil Procedure Code, ss. 283 and 352.

The plaintiff in this case having obtained judgment against the defendants on a promissory note in May, 1904, seized the life-interest of the second defendant in a certain property on 17th June, 1904, and registered the seizure on 20th June, 1904. On 28th June, 1904, the second defendant and her co-owners, with the sanction of the Court obtained under Ordinance No. 11 of 1876, sold their interests in the property to D, F. & Co., who claimed the interests of the second defendant when under seizure under plaintiff's writ; their claim having been upheld, the plaintiff instituted an action under section 247 of the Civil Procedure Code, and obtained judgment in February, 1905 (affirmed in appeal in July, 1905) declaring the interests of the second defendant executable under his writ.

M. S. obtained judgment against the second defendant in this case in action No. 19,955 on a promissory note, in September, 1904, and issued writ in January, 1906.

The interest of the second defendant was sold by the Fiscal on the writ of the plaintiff in this case on 24th April, 1906, and was purchased by the plaintiff himself, who was allowed to set off his judgment debt against the purchase amount under section 272 of the Civil Procedure Code.

In an application by M. S. to have the purchase money brought into Court and for a rateable proportion thereof     under section 352 of the Civil Procedure Code,-

Held, that he was so entitled, inasmuch as the sale to D. F. & Co., was void as against his claim under section 238 of the Civil Procedure Code, it being a claim enforceable, under the seizure by the plaintiff in 14,570, by virtue of section 352 of the Code.

MIDDLETON J.-The claims of those execution creditors who, under section 295 of the Civil Procedure Code, are entitled to claim the benefit of a distribution of the fruits of a seizure ought to be treated as falling within the words " all claims enforceable under the seizure " in section 238.

Sorabji v. Govind(1I. L. R. 16 Bom. 91.) followed.

THE facts and arguments sufficiently appear in the judgments.

H. Jayewardene (with him A. St. V. Jayewardene and Batuwantudawe), for the appellant (plaintiff in 19,955).

Schneider, for the respondent (plaintiff in 14,570).

Cur. adv. vult.

9th October, 1906. MIDDLETON J.-

This was an appeal against an order disallowing an application by the appellant, who is plaintiff in action D. C, Colombo, 19,955, that the respondent, who is plaintiff in this case, should be called upon to bring into Court the sum of Rs. 1,400 realized by the sale of the property of their common debtor for rateable distribution under section 352 of the Civil Procedure Code.

The facts, which I mostly take from the judgment of the District Court, were that the respondent got judgment in the present action in May, 1904, seized the property in question on 17th June, 1904, the seizure being registered on the 20th June, 1904. On the 18th July, 1904, Messrs. Delmege, Forsyth & Co. claimed the land under a deed of transfer dated 28th June, 1904. The land was subject to a fidei commissum in favour of the second defendant here and others, the children of Norman Rajapakse, and in case No. 87 (special) the District Court had authorized the sale of the land to Delmege,

Forsyth & Co. under the Entail and Settlement Ordinance of 1876. The claim of Delmege, Forsyth & Co. was upheld, but the respondent here instituted case No. 20,591 against them and obtained a decree In February, 1905, confirmed in appeal on 25th July, 1905, declaring the land liable to be seized and sold in execution of his decree.