Meyappa Chetty V. Weerasooriya

[PULL BENCH.]

1916 Present: Shaw A.C.J. and Ennis and De Sampayo JJ.

MEYAPPA CHETTY v. WEERASOORIYA.

69-D. C. Colombo, 43,694.

Concurrence-Civil Procedure Code, s. 352-Application for execution after sale in execution of debtor's property by another creditor-Payment of balance money by purchaser by cheque-" Realization" -" Assets "-Omission of the name of an appellant from the caption-Appeal.

On November 1, 1915, certain lands were sold in execution of a decree in favour of the plaintiff against W, and one-fourth of the purchase money was paid. On November 17 the purchaser gave the Fiscal a cheque for the remaining three-fourths of the purchase money. On November 20 this was deposited in the Kachcheri. On November 80 the matter was reported to the Court. On November 19 the 1st, 6th, and 7th appellants, who had decrees against W. in the same Court, applied for execution of their respective decrees, and notices of their applications were given in this case. On November 29 4th and 5th appellants applied for execution against W. The 2nd and .3rd appellants applied for execution on December 15.

Held, that the appellants were not entitled to concurrence.

Payment by cheque is a conditional payment, and when the cheque is honoured, that operates as a payment as from the date of the giving of the cheque.

Per SHAW A.C.J. and Ennis J.-Assets are realized in execution, within the meaning of section 352 of the Civil Procedure Code, at the moment of sale, and not when the money is paid.

DE SAMPAYO J.-The words " prior to realization " in section 352 means " before the receipt of the' assets."

THE facts are set out in the judgment.

Drieberg (with him F. H. B. Koch), for appellants.-The appellants (1st, 6th, and 7th) are entitled to concurrence as they had applied for execution of their decrees on November 19-before the money was sent to the Kachcheri by the Fiscal. These appellants had applied for execution ' prior to realization of the assets." Assets cannot be said to be realized in this case before the entire purchase money was paid.

A cheque should not be regarded as a realization of money. A cheque is not money. In all statute law where the word " money " is used the purposes of the section are not satisfied by the tender of a cheque. The cheque may be dishonoured by the bank. [De Sampayo J. referred to 26 Mad. 179. " Assets " means proceeds of the sale of property.]

[Shaw A.C.J. referred to 12 Cal. 317.]

The stage contemplated by the section is not reached until the assets are before the Court. How is the Court going to divide a  cheque or a promissory note? The Code contains no provision for payment by cheque. In essence a cheque and a promissory note are the same.

[Shaw A.C.J.-Would it be right to take away the remedies of the judgment-creditor because the Fiscal accepts a cheque?] Counsel cited Stroud on the meaning of the word ' money."

The Court did not hold the assets until it received an intimation from the Fiscal of the deposit in the Kachcheri. All the appellants, therefore, are entitled to concurrence.

Counsel cited 2 C. L. R. 178; 28 Bom. 264; 18 N. L. R. 310; 7 N. L.R. 280; 9 S. C.C.203.

E. W. Jayewardene, for respondent.-The Fiscal accepted the cheque on November 17. The Fiscal is an officer of the Court. Once the cheque is accepted and it is honoured it is payment; payment to the Fiscal after the sale is payment to the Court.

" Realization " means the sale of the property by the Fiscal in the case of immovable property.

In Konamalai v. Sivakolunthu1[9 S. C. C. 203.] the appellant had his writ reissued before the money was deposited in the Kachcheri, and yet the Full Court held that he was not entitled to concurrence. That case is a binding authority. Counsel referred to 6 N. L. R. 169; 2 C. W. R. 130; 1 C. W. R. 180; 2 Br. 3; 1 A. C. R. 109; 3 Bal. 258; 18 N. L. R. 310. If a cheque is accepted and it is subsequently honou

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