[FULL BENCH.]
1915.   Present : Wood Renton C.J., Shaw J., and De Sampayo A.J.

MENDIS v. PERIS.

52-D. C. Kalutara, 5,402.

Concurrence-Civil Procedure Code, ss. 350, 351. and 352.

Before the sale in execution under writ issued in this case the Fiscal had in his hands two writs in Nos. 297 and 537-C. R. Gampola against the same judgment-debtor issued at the instance of the appellant. The property was seized under all three writs before sale. After the proceeds of the sale were deposited in the Kachcheri, the appellant procured another writ, D. C. Kandy, 21,256, to issue to the fiscal against the same judgment-debtor. Before money was paid out of Court the Fiscal gave three notices to the (Kalutara) Court, under section 232. with respect to the two Gampola writs and the Kandy writ.

Held (per WOOD RENTON C.J. and SHAW J.), that the appellant was entitled to concurrence in respect of the two Gampola writs only.

Held (per DE SAMPAYO A.J.), that the appellant was entitled to concurrence in respect of his three writs.

Per WOOD RENTON C.J. and SHAW J.-The Civil Procedure Code hat superseded the Roman-Dutch law on the subject of concurrent claims of creditors upon the execution proceeds of a common debtor's property.

SHAW J.-" The only reasonable interpretation that I think can be given to section 352 is to confine the section only to the persons who can under the law make application under it for execution-namely. decree-holders of the same Court-leaving to decree-holders of other Courts the rights that appear to have been given to them by the earlier sections to participate in the seizure and sale, and then to apply for their share of the proceeds under section 350. "

THE facts are stated by Shaw J. as follows:-

The plaintiff having obtained judgment against the defendant, caused a writ of execution to issue to the Fiscal of the Western Province 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 the instance of the plaintiff. In the meantime two writs of execution in cases Nos. 297 and 537-C. R. Gampola were issued to the Fiscal at the instance of the applicant, the present appellant, and the

Fiscal in his sale report to the Kalutara Court dated October 8 reported that be had seized under these writs as well as under the Kalutara writ.

The proceeds of the sale were deposited by the Fiscal in the Kalutara kachcheri on September 30 and October 23.

Subsequently the applicant procured another writ to issue to the Fiscal in another action, No. 21,256-D. C. Kandy, in which he had also obtained judgment against the same judgment-debtor.

On November 11 the Fiscal, on behalf of the applicant, gave three notices to the Kalutara Court, under section 282 of the Civil Procedure Code, with respect to the amounts due under the two Gampola and the Kandy writs.

The plaintiff then moved the Kalutara Court that the proceeds of the execution should be paid out to him in satisfaction of his judgment in No. 5,402-Kalutara, and the District Judge, having beard the proctors for the parties interested, allowed the plaintiff's application, on the ground that the judgment-creditor in the two Gampola and the Kandy cases had not applied to the Kalutara Court for the execution of the decrees prior to the realisation of the assets under section 352 of the Civil Procedure Code, and from his order the present appeal is brought.

Bawa, K.C., Acting S.-G., and C. H. Z. Fernando, for appellant.

E. T. de Silva, for respondent.

Cur. adv. vult.

July 5, 1915. WOOD RENTON C.J.-

The facts have been fully stated by my brother Shaw, and I propose merely to deal with the important legal question which is involved in the appeal. After full consideration, I adhere to the view expressed by Ennis J. and myself in 60-D. C. F. Negombo, No. 1,420,1 that the Full Court must be taken to ha