Letchimanen Chetty V. Abdul Rahiman, Ex Parte Muttusamy Pillai

 

Present:  The  Hon.   Sir Joseph  T.   Hutchinson,   Chief  Justice,

and Mr.  Justice Wendt.

 

LETCHIMANEN CHETTY v. ABDUL RAHIMAN.

 

Ex parte MUTTUSAMY PILLAI, Appellant.

 

D.      C., Colombo, 24,694.

 

    Sequestration of goods by one creditor-Application to sell by another creditor-Rights of party sequestering the goods-Civil Procedure Code, ss. 653 and 660.

 

Where goods belonging to a debtor are sequestered under a mandate of sequestration issued under section 653 of the Civil Procedure Code, any other judgment-creditor of the debtor, who has obtained judgment before or after such sequestration, is entitled to have the said goods sold in execution of his decree.

 

APPEAL from a judgment of the Acting District Judge of  Colombo (F. R. Dias, Esq.) refusing to order the sale by the Fiscal of certain goods.

 

Bawa (with him H. A. Jayewardene), for the applicant, appellant.

 

Sampayo,   K. C.   (with   him   F.   M.   de   Saram),   for   the   plaintiff, respondent.

 

Van Langenberg, for the defendant.

 

Cur adv.   vult.

 

     April 16,   1908.    HUTCHINSON C. J.-

 

      This   is   an   appeal   by   Muttusamy   Pillai,    judgment-creditor   in action 24,798 in the District Court of Colombo, in which the defendant is the same as in this action, against an order of the District Court in this action made on August 12, 1907, refusing to order a sale of the defendant's goods under writ of execution in action 24,798.

 

The plaintiff in this action obtained a mandate of sequestration of the goods under section 653 of the Civil Procedure Code, under which the Deputy Fiscal of Kalutara seized the goods on March 16, 1907. On June 6, 1907, an agreement was made between the plaintiff and the defendant in this action and a claimant to the goods by which the defendant and the claimant sold and transferred the goods to the plaintiff, and the plaintiff agreed to a dismissal of his action. This Court has held, however, that the sale and transfer were void as against the present appellant (judgment-creditor in action 24,798). This action has not yet been dismissed in pursuance of the agreement, and the goods are still in the hands of the Deputy Fiscal under the sequestration.

 

The appellant issued writ of execution under his decree in No. 24,798, and instructed the Deputy Fiscal to seize the goods under the writ. The Deputy Fiscal having refused to sell the goods because of the sequestration, the appellant applied to the District Court for an order for sale, which was refused, and this is an appeal from the refusal.

 

Section 660 enacts that sequestration before judgment shall not affect the rights, existing prior to the sequestration, of persons not parties to the action, nor bar any person holding a decree against the defendant from applying for a sale of the property under sequestration in execution of the decree. The respondent contended, and the District Judge held, that the " decree " there referred to only means a decree existing at the date of the sequestration, Under section 653 sequestration may be obtained where the plaintiff satisfies the Judge that he has a sufficient cause of action against the defendant, and that he has no adequate security, and that the defendant is fradulently alienating his property with intent to avoid payment of the plaintiff's claim, or that he has with such intent quitted the Island; and the Fiscal is to detain or secure the property to abide the further order of the Court. There seems to be no other enactment as to the effect of a sequestration. The marginal note to section 660, " effect of sequestration on prior rights, " is not conclusive. The inference which I draw from sections 653 and 660 is that the object was not to alter the position of the plaintiff with reference to third parties, nor to give him any priority which he would not ot

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