( 445 )
Present: Lascelles C.J. and Ennis J.
FERREIRA v. HANIFFA et al.
116—D. G. Galle 10,874.
Insolvency Ordinance, s. 80—Sale of real property by order of Court—No meeting ofcreditors—Partition action—Titlebasedon on
illegalorder ofCourt—Abatement—May purchaserfromanassignee
get order set asidet—Civil Procedure Code, s. 403.
The sale of all the real propertyof aninsolventmust takeplace
under conditions to be determined by the majority of the creditorspresent at any meeting.
Where no meeting of creditors was held, and the assignee refusedto sell,and theCourt took the matter into itsownbands and
ordered the Secretary to put the propierty up for sale,—
Held (par IiaecBLMS C.J.), that the order was on the face of itbeyond the jurisdiction of the Court.
It would be improper in a partition action to accept a titlebased on an order which ex fade the Court had no jurisdiction tomake.
EnnisJ.—Wherean order of abatement was made inapartition
action, held that no fresh action for the partition of the same landcould be- brought.
The right to get an order of abatement set aside is not limitedin section 403, Civil Procedure Code, -to an assignee only of aninsolvent; the words “ legal representativeof aninsolvent "have
a wider meaning and would include a purchaser from an assignee.
fjpHE facts are set out in the judgment.
Bawa, K. C., for the defendants, appellants.—The title of theplaintiff is bad, as the Court had nopowerto orderthe sale;there
was -no meeting of creditors. TheCourtordereda sale by the
Socretary. The Court had no jurisdiction to make the order.
In a partion action, the Court should satisfy itself as to thetitle of the parties.
Action No. 8,660 was brought for the partition of this land. TheCourt had no power to make an order of abatement. Lorensu v.Paaris et al.1 * At any event the order of abatement should nothave been made ex mero motu. Allahakoon v. Wickremasinghe.*
The action 8,860 in any case is still pending, and the presentaction is barred by that action. Counsel also cited Gooneratne v.Perera et al.,3 Peris v. Perera.* The cause of action is the samein both the actions.
i (1908) 11 N. L. R. 202.
a (1S08) 4 A. C. R. 8.
(1898) 2 N. L. R. 185.
(1896) 1 N. L. R. 362.
( 446 )
1912. H. A. Jayewardene, for the respondent.—Even if the sale toFerreira v. plaintiff is irregular, the irregularity cannot be questioned now.jjaniffa There was an appeal against the sale, and the appeal was dismissed.Counsel cited Gavin v. Hadden, Pinhamy v. Picrix.-
It- has not been held anywhere that a Court cannot make anorder of abatement ex mero mntv.
The cause of action in the former action and this is not the s-.une.In the first action the cause of action was the inability of theinsolvent to possess in common. The cause of action here is theinconvenience caused to the present plaintiff.
It is not open to the plaintiff to proceed under section 403 ofthe Civil Procedure Code. He is not the legal representative ofthe insolvent.
Bawa, K.G., in reply.—If the order of abatement is regular, eventhen the plaintiff cannot succeed. He should move, under section403, to have that order vacated and re-open that case. A purchaseris a legal representative of the insolvent.
Cur. adv. vult.
September 12, 1912. Lascelles C.J.—
This is a partition action in which objection is taken to theplaintiff’s title, on the grounds (1) that the title which he claimedfrom the assignee of one Abdul Cader is bad, inasmuch as the salewas not held in conformity with the requirements of section 80 ofthe Insolvency Ordinance; and (2) that the partition action No. 8,660was a bar to the present action.
With regard to the first objection, section 80 provides thatassignees shall, subject to the direction of the creditors given at anymeeting of the creditors, sell the property of the insolvent, andthat the sale of all real property shall take place under conditionsto be determined by the majority of the creditors present at anymeeting.
The insolvency proceedings, in the course of which the sale toAbdul Cader was made, show that the requirements of the Ordinancewere completely ignored. No meeting of credtiors was held; theassignee refused to sell; and the Court took the matter into its ownhands, and ordered the Secretary of the Court to put the propertyup for sale. The order was on the face of it beyond the jurisdictionof the Court. The illegality of the order did not pass unnoticed,for after the sale was held the insolvent appealed again?'- the orderdirecting the sale, but the appeal was unfortunately dismissedwithout being heard, for non-compliance with the rules for supplyingcopies of the record. The sale was not confirmed by the SupremeCourt as recited in the deed.
* 8 Moore’s P. C. Appeals 90
* (1908) 11 N. L. R. 102.
( 447 )
In a partition action it is the duty of the Court to satisfy itself ofthe titles of the co-owners. It is no answer, even if it be the case,that it is not competent for the insolvent, the assignee, or thecreditors to impugn the sale. The question is whether the titlewhich was vested in the assignee passed to the plaintiff by anymeans allowed by the law; whether the plaintiff’s title is goodagainst all the world? The answer must be in the negative. I donot regard the principle laid down in Gavin v. Hadden1 as havingany bearing on a case like the present, where a stautorv dutyis imposed on the Court to examine the titles of all parties to apariiton suit. In such a case it would, in my opinion, be improperto accept a title based on an order which ex facie the Court hadno jurisdiction to make. In view of my opinion with regard to thetitle of the plaintiff, it is unnecessary to consider the second groundof appeal. In my opinion the appeal should be allowed, and thejudgment set aside with costs here and in the Court below.
The plaintiff in this case instituted an action for the partition ofcertain land, and based his title to part of the land on a sale by theassignee of one Abdul Cader, an insolvent, of Abdul Cader’s interestin the land, which sale was ordered and confirmed by this Court.
Prior to his insolvency, Abdul Cader, with two other personshaving an interest in the land, had instituted a suit for the partitionof rhe same land (No. 8,660 of the District- Court of Galle).
Two preliminary objections were raised by tire defendants againstthe action: first, that the sale to the plaintiff by the assignee wasvoid; and secondly, that the case 8,660 was a bar to the action.The District Judge found against the defendants on both points, andthe appeal has been presented against this decision.
It appears that in the actiou 8.660, which was instituted onOctober 2, 1097, the plaintiff’s proctor was on September 8, 1908.allowed a week in which to file issues, and took no further steps; andon December 30, 1909, the Court ex mero-motu ordered the actionto abate. Assuming, as argued for the respondent, that the Courthad t-he power under section 402 of the Civil Procedure Code exinero motu to abate the action then the provisions of section 403have to be considered. That section lays it down that where anaction abates under this section no fresh action can be brought onthe same cause of action, but that the person claiming to be thelegal representative of the insolvent plaintiff may apply for an orderto set aside the abatement. On this point it has been urged thatthe cause of action is not .the same, and that the purchaser from flicassignee was not the legal representative of the insolvent-.
1 8 Moore’s P. C. Appeals SO.
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The cause of action appears to me to be the right of the plaintiffto have the land divided between himself and the • co-owners, andthe cause of action is the same in tins suit- No authority has beenbrought to our notice to show that a purchaser from an assignee isnot to legal representative of an insolvent.
The power to set aside an order of abatement is not limited in thesection to an assignee only of an insolvent, and it seems to me thatthe words " legal representative of an insolvent ” have a widermeaning, and would include a purchaser from an assignee. Thisbeing so, the only course open to the plaintiff would have been toapply under section 408 to re-open the former case, which is a bar tothis action.
In my opinion the authority of the Privy Coucil case, Gavin v.Hadden,1 followed in Pinhamy v. Petris 2 preclude this Court fromquestioning in thiB case the order of abatement in 8,060, or the orderconfirming the sale by the assignee of the insolvent in the insolvencyproceedings, from neither of which has an appeal been presented.
I would allow the appeal with costs.
* 8 Moore's P. C. Appeals .90.
* (1908) 11 N. L. R. 102.
FERREIRA v. HANIFFA et al