Present: Bertram C.J. and De Sampayo J.   1920.

ABEYESINGHE v. RAKKAMA.

91-D. C. (Inty.) Kandy, 22,577.

Three mortgages by shareholders-Writs issued under all mortgage decrees-Seizure under all writs-Sale under one writ-Right of other decree-holders to the surplus.

Several shareholders of a property granted three mortgages to two persons. Writs were issued on the mortgage decrees, and the Fiscal seized the shares under the several writs, and fixed the sale under one writ at 12 noon and under another at 2 P.M. of the same day. After the first sale, under the impression that the proceeds of the sale under the first writ was sufficient to satisfy all writs, he did not sell under the other writs.

Held, that all the writ-holders were not entitled to share in the proceeds of sale.

" It is necessary, in any case, that the debtor should be identical, and the property seized under the writs should be the same. In the present case the plaintiff's writ was against all the defendants, and Nallan's writ was against the fourth and fifth defendants only, and the plaintiff's other writ was against the fourth and sixth defendants . . . . In these circumstances, one sale under all the write was not possible, and the Fiscal cannot be presumed to have held a sale under all the writs."

THE facts are fully set out in the judgment.

E. W. Jayawardene (with him Bartholomeusz), for plaintiff, appellant.

A. St. V. Jayawardene, for applicant, respondent.

Cur. adv. vult.

September 17, 1920. DE SAMPAYO J.-

The question in this appeal concerns the proper distribution of the surplus proceeds of an execution sale. The facts out of which the question arises may be briefly stated as follows. The first defendant was entitled to one-fourth share of a certain land; and the second defendant (wife of the third defendant), the sixth defendant, and the seventh defendant were each entitled to one-eighth share. The fourth defendant mortgaged her one-eighth share primarily to Nallan Chetty, the respondent to the appeal. The plaintiff had a primary mortgage of the shares of the first, second, sixth, and seventh defendants, and a secondary mortgage of the share of the fourth defendant and another mortgage of the shares of the fourth and sixth defendants, which may, for the sake of convenience, be called tertiary mortgage. Nallan Chetty sued the fourth defendant on the primary mortgage and obtained a decree, and the plaintiff

also sued the first, second, fourth, sixth, and seventh defendants in this action on their mortgage in his favour and obtained a decree. Nallan Chetty and the plaintiff issued writs in execution of their decrees and seized the shares of their respective debtors in the land. The sale under these writs were fixed by the Fiscal for the same date as the sale under the plaintiff's writ at 12 noon, and the sale under Nallan Chetty's writ at 2 P.M. The sale under the plaintiff's writ took place and realized a sum of Rs. 28,731, but the sale under Nallan Chetty's writ was not held, apparently because there would be sufficient money to satisfy both the writs. The proceeds of sale were brought into Court, and the plaintiff drew Rs. 17,484.70, being the full amount of his writ. The surplus of Rs. 11,246.21 was drawn as follows : Nallan Chetty Rs. 2,779.83, being the full amount of his writ ; the plaintiff another sum of Rs. 3,066.63, being the amount of a decree in his favour on tertiary mortgage of the shares of the fourth and sixth defendants; the first defendant Rs. 2,249.24; and the second defendant Rs. 1,686. It appears, however, that the first defendant was, in fact, entitled to draw more than the Rs. 2,249.24 which she had drawn, and so an application was made to Court for the payment of the balance Rs. 1,734.93 still due to her, and as the fund left in Court was not sufficient to pay her this sum, and as the plaintiff had drawn in respect of the tertiary mortgage the su