( 347 )
Present: Middleton J. and Wood Benton J.
ABEYABATNA «. PEBEBA.191—V. C. Colombo, 31,'-'96.
Sale by an auctioneer—Order to Fiscal under s. 287, Civil Procedure Code,to deliver possession—Inherent power of Court to enforce sale.
A purchaser atan execution-sale heldby an auctioneer under
section 201 ol the Civil Procedure Code is not entitled to an orderunder section 287directing the Fiscalto deliveroverto him
possession of theproperty purchased, assection 287isconcerned
only with Fiscal's sales.
The Court has au inherent power to direct delivery of possessionto the purchaser and render the sale effectual.
fJlHE facts are set out in the judgment of Wood Benton J.
if. A. Jayewardene, for the substituted plaintiff, appellantexecution-purchaser.—The fact that thesale washeldby au
auctioneer does not deprive the execution-creditor of his right toget a writ of possession. Section 287 of the Civil Procedure Codeis not confined to Fiscals' sales only. In any case the Court has aninherent power to render the sale held under its orders effectual.Counsel cited Kalamea v. Harperink.1
No appearance for the respondent.
Cur. adv. vult.
January 81, 1912. Wood Bentox J.—
In this case the original plaintiff obtained a judgment against thedefendant on a mortgage Bond, and au order that the sale of themortgage properties should be conducted by a private auctioneerwho was specially authorized under section 201 of the CivilProcedure Code to grant conveyances to purchasers. Subsequentlythe plaintiff assigned the decree in his favour to the substitutedplaintiff, who is the present appellant. The decree in the action onthe mortgage bond was one for payment of the sum secured by it,or in default thereof for the sale of the mortgaged properties In themode above mentioned. At the sale the appellant, with the sanctionof the Court, bid for and purchased part of the property sold, andobtained a conveyance from the auctioneer. The question raisedby this appeal is whether he is entitled, under section 287 of theCivil Procedure Code, to an order directing the Fiscal to deliverover to him possession of the property purchased. The defendantwas examined, at the instance of the appellant, under section 219of the Code of Civil Procedure, in the District Court, aiid gave thefollowing evidence:“ What I did mortgage was a coconut and
cinnamon property that is now in my possession. I have leased it
> 36 Cal. 320.
v 348 )
out on a notarial lease. It was prior in date to the mortgage, butI did not mention the lease to the mortgagee.”
The learned District Judge held that there is nothing in theevidence to show who is in possession of the property, and' that, inany case, section 287 applies only to Fiscal’s sales. He accordinglydisallowed the appellant’s application under section 287. I agreewith the learned District Judge that section .287 is concerned onlywith Fiscals’ sales. But I venture to think that there is evidencethat the defendant, i'n view of what he himself said on the subject,is in possession of the property in question, and I do not see why heshould not be noticed by the District Court to show, any cause thathe may have against his being ordered to deliver over possession tothe appellant. The sale has taken place in conformity with thedirections contained in a decree which is certainly binding on him,and the Court must have inherent power to render that sale effectual.
I would set aside the order under appeal, and send the case backto the District Court for the purpose of the defendant being noticedto show cause, if he has any to show, why the appellant should notbe put in possession of the property purchased. There should be nocosts of this appeal or of the original proceedings in the DistrictCourt, since the appellant was not entitled to the remedy forwhich he applied under section 287. The costs of the subsequentproceedings in the District Court should be in the discretion ofthe District Judge.
Middleton J.—I concur.
Set aside and sent back.
ABEYARATNA v. PERERA