Present: Lyall Grant J. and Maartensz A.J. 1929

PERERA v. PERERA.

115-D. C. Negombo, 1,705

Concurrence-Sale in execution-Deposit of 1/4 of purchase money- Failure to complete sale-Proceeds of sale-Assets available for distribution-Civil Procedure Code, ss. 262 and 352.

The plaintiff-respondent sued the defendants in this action for the recovery of rent due for certain premises leased to them and obtained a decree for Rs. 6,000. In execution of the decree the leasehold rights were sold and purchased by the plaintiff, who paid the deposit of Rs. 1,502.50 but did not complete the purchase. At the time of sale the Fiscal had in his hands a writ issued against the first defendant in another action at the instance of the appellant, who had under seizure a half share of the indenture of lease.

Held (in an application for concurrence by the appellant), that the assets available for distribution among the creditors consisted of the sum in deposit only, and that the plaintiff could not be compelled to bring into Court the balance of the purchase money for distribution.

APPEAL from an order of the District Judge of Negombo. This was an application by the appellant for confirmation of the sale held under the circumstances set out, and for determination of the pro rata share, of the creditors, who claimed concurrence. The learned District Judge refused the application.

M. T. de S. Ameresekere, for judgment-creditor in No. 2,294 D. C, appellant.-The plaintiff has made default in the payment of the balance purchase money. She has done so fraudulently with a view to prejudice the rights of the appellant. In another action she has obtained the cancellation of the lease bond which was sold on this writ. Under sections 282 and 286 the appellant has at sufficient interest to entitle him to ask that the sale be confirmed. If the sale1 bad been perfected, the appellant would have been entitled to one-fourth of the proceeds as representing his pro rata share. He should be therefore allowed to draw the full amount in deposit. The respondent cannot be allowed to get any benefit from her default. It is not necessary that he should wait until the full amount is realized by a resale.

Croos da Brera, for plaintiff-creditor, respondent.-The provisions of section 262 of the Code are imperative. Under that section there should be a resale, if the balance is not deposited within 30 days. The deposit is to go in reduction of the claim of the judgment creditor. The respondent is as much a creditor as the appellant. If the purchaser was an outsider there is no question that the

respondent would be entitled to the amount forfeited or at least to a share of it. He should not be placed in a worse position because he Perera became the purchaser. It is not open to a person in the position of the appellant to apply for confirmation of the sale. No fraud has been proved.

Ameresekere, in reply.

September 16, 1929. MAARTENSZ A.J.-

The plaintiff in this action sued the defendants for the recovery of rent due for certain premises which she had leased to them and obtained a decree against them for Rs. 6,000.

In execution of the decree the judgment-debtor's leasehold rights were sold on October .27, 1928, and purchased by the plaintiff for Rs. 6,010. She paid the deposit of Rs. 1,502.50, which was deposited in Court less a sum of Rs. 191.80 Fiscal's charges.

At the time of the sale the Fiscal had in his hands a writ for the recovery of Rs. 2,000 issued by the appellant against the present first defendant in case No. 2,294, and a half share of the indenture of lease was under seizure.

On November 7, 1928, the plaintiff moved "that the Deputy Fiscal, Kurunegala, be directed to forward the proceeds of sale of the leasehold, rights to this Court, and that he be informed that the claim of the plaintiff is a first charge on the money realized by sale and paid in by her as the same represents rent