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Present: Bertram C. J. and Schneider A, J,GTOUSEKERA v. DIAS et al68—n. G. (Ivty.) Galle, 15,796.
Decree of Supreme Court directing that writ of execution be stayed—Salebefore decree reaches District Court—Confirmation of sale afterdecree reaches Court—Power of Court to vacate order of confirmation.
The Supreme Court on appeal directed that the writ of executionshould be stayed as against the third defendant. This decreereached the District Court on July 5, and on July 18 the DistrictCourt, on an ex parte application of the plaintiff,confirmed a salein execution which had taken place before July 5. The thirddefendant applied to the District Court for relief, and the DistrictJudge held that he had no power at that stage to grant relief,and that the only mfeans of obtaining relief was by a substantiveaction.
Held, that the District Judge ought to have refused to confirmthe sale, and that he had power to vacate the order confirmingthe sale.
r | ^HE facts appear from the judgment.
Keuneman, for the appellant.
August 5,1920. Bertram C. J.—
This is an appeal against the order of the District Judge of theGalle District Court refusing an application to set aside a confir-mation of a sale of property sold in execution. The applicationwas made by the third defendant in the action. Judgment had beenrecovered against her and the other two defendants, and an appealwas taken to this Court. So far as the third defendant was con-cerned, the ground of her appeal was that judgment had been. recovered upon a promissory note, that she was a married woman,that she had executed this note without the consent of her husband,and that her husband had not been joined as a party in the action.The Supreme Court did not set aside the decree, but directed thatexecution under the writ in her case should be stayed. A formalorder to that effect was duly made out and reached the DistrictCourt on July 5, 1919. By the time the judgment of the SupremeCourt reached the District Court, a sale in pursuance of the executionhad already taken place, but had not yet been confirmed. – Not-withstanding the judgment of the Supreme/Court. the plaintifE, whowas the purchaser under the sale, on July 18, applied to the Courtfor the confirmation of the sale without bringing to the notice of
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the Court the terras of the judgment of this Court. The DistrictCourt, in spite of the fact that there was an entry in the journal ofsthe case showing that the judgment of the Court had been variedby the Supreme Court, allowed the application for the confirmationof the sale. The motion for the confirmation was made ex parte,and the present appellant is said to have known nothing of thisproceeding. Later, an order for delivery of possession was appliedfor, also ex parte, which is in itself an irregularity (see Abeydere v.Marikar1), and possession was formally delivered. The appellantthen applied to the District Judge for relief, but the District Judgewas of opinion that matters had now gone to such a stage that hehad no power to grant relief, and that her only means of obtainingrelief would be by a substantive action. I think the District Judgehas acted under an imperfect appreciation of his powers.
It seems to me that the confirmation of the sale in the circum-stances was an irregularity. There is no question, not only thatthe District Judge could refuse to confirm the sale, but that in thecircumstances he ought to have refused to confirm the sale. Withregard to his powers in such circumstances, I may refer to the casesof De Mel v. Dharmaratne 2 and Appwhamy v. Appuhamy,3 and thecase cited to us by Mr. Keuneman (Ghinawardene v. Tosoof*). Theorder of the Supreme Court directing a stay of execution, so far asit related to the present appellant, was in effect, but not in form,a setting aside of the decree of the District Court, and it was held inDe Mel v. Dharmaratne2 above cited, that if a District Court, afterits decree has been set aside by the Supreme Court, confirms a saleheld in execution of the decree, that order can be vacated.
It would also clearly be a gross injustice that, whether by thedefault of the Court or by the default of the plaintiff in applyingfor confirmation of the sale, property which the Supreme Courtintended to preserve for the appellant should be taken away fromher. In my opinion the case should be remitted to the DistrictJudge in order that he may cite all parties before him and determineon what terms the application of the appellant for relief should begranted. It is necessary, I think, in this case, as the sale has beencompleted, that notice should be given to the Fiscal, and that theCourt should determine who should be responsible for paying thefees which the Fiscal has already received. The order confirmingthe sale, and the further order for delivery of possession, should beset aside. The appellant is entitled to the costs of this appeal, andin the Court below.
Schneider A. J.—I agree.
1 (1895) 2 N. L. R. 19.
* (1908) 1 N. L. R. 274.
3 (1910) 14 N. L. R. 8.
‘ (1919) 1 C. L. R. 153.
GUNASEKERA v. DIAS et al