1928 Present: Fisher C. J. and Jayewardene A. J.

SHAW & SONS v. SULAIMAN et al.

69-D. C. (Inty.) Colombo, 25,143.

Concurrence-Seizure of money in Court-Order by attaching Court-Appropriation in pursuance of direction-Civil Procedure Code, ss. 232 and 252.

An execution-creditor, who has seized money lying to the credit of his judgment-debtor in another case, is not entitled to resist a claim for concurrence unless he has obtained, prior to such claim, an order of the attaching Court directing that the money be paid over to itself.

The mere issue of a notice under section 232 does not amount to realization. To shut out a judgment-creditor who applies for execution, realization must have reached the stage of appropriation to another decree-holder.

APPEAL from the order of the District Judge of Colombo.

H. V. Perera, for plaintiff, appellant.

Hayley, K.C (with Navaratnam), for 5th, 6th, and 7th respondents.

H. H. Bartholomeusz (with Rajapakse), for 1st and 2nd defendants, respondents.

July 10, 1928. JAYEWARDENE A. J.-

In this case judgment was entered for the plaintiff for a sum of Rs. 24,007.82 with interest and costs against the defendants, as prayed for, on February 8, 1928.

On February 11 the plaintiff applied for execution by issue of writ Against the properties of the deceased testator, and this application was allowed. According to the journal entries, writ was issued on February 11. On February 13 the Proctor for the plaintiffs made the following motion: "As a sum of Rs. 24,007.82, belonging to the defendants above named, out of the estate of the late S. L. Naina, Marikar Hadjiar, and lying in testamentary proceedings No. 3,189 of this Court, has been seized under the writ issued in this action, I move that the said sum of Rs. 24,607.82 be transferred from the said proceedings No. 3,189 to this action to the separate account of the plaintiffs above named."

On this motion the learned Judge endorsed as follows: -

" Vide order in D. C. 3,189 " and " Vide order on Mr. Akbar's motion in D. C. 3,189."

The plaintiff says that he obtained a transfer of the amount seized to the credit of this case, and that subsequently to the transfer, the respondents (3 to 14) purported to seize the money lying to the credit of this case under writs issued against the defendants. The plaintiff complains that the learned Judge has refused his application for an order of payment in his favour.

The Code draws a sharp distinction between attachment and realization.

As regards the attachment or seizure of money in Court, the Civil Procedure Code enacts-

" If the property is deposited in, or is in the custody of any Court or public officer, the seizure shall be made by a notice to such Court or officer, requesting that such property and any interest or dividend becoming payable thereon may be held subject to the further orders of the Court from which the writ of execution authorizing the seizure issues." (Section 232.)

and as to realization-

" Whenever assets are realized by sale or otherwise in execution of a decree, and more persons than one having, prior to the realization, applied to the Court by which such assets are held for execution of decree for money against the judgment-debtor, and have not obtained satisfaction thereof, the assets, after deducting the costs of realization, shall be divided rateably among all such persona." (Section 352.)

(The Court in whose custody the money is will hereafter be called the " custody Court," and the Court issuing execution, the attaching Court.)

In this case the attaching Court issued a notice under section 232 requesting the custody Court, D. C. Testamentary 3,189, to hold a sum of Rs. 24,607.82, subject to the further orders of the attaching Court.

The mere issue of a notice under section 232 does not amount to realization. To shut out a judgment-creditor who applies for execution, realization must have reached the stage