WEERASOORIYA, J.—Kanakasabai v. Coder
Present: Weerasooriya, J., and Sansoni, J.KANAKASABAI, Appellant, and CADER, Respondent8. C. 39—D. C. (Inty.) Matale, 210/M.B.
Mortgage Act, No. 6 of 1949—Sections 49, 50 (4), 61 (1)—Hypothecary sale—Applica-tion to set it aside, for material irregularity—Power of Court to hear objections—Civil Procedure Code, s. 282 (2).
Where mortgaged land is directed to be sold by the Fiscal without beingpreviously seized as provided in section 49 of the Mortgage Act, and applicationis subsequently mado to set aside the sale when it has taken place, section 282(2)of the Civil Procedure Code is applicable by virtue of section 61(1) of the Mort -gage Act and precludes the Court from inquiring into any objections not notifiedto Court within 30 days of the receipt of the Fiscal’s report relating to the sale.
jAlPPEAL from an order of the District Court, Matale.
S. B. Yatcmara, for plaintiff-appellant.
P. SomatilaTcam, with V. J. Martyn, for defendant-respondent.
Cur. ado. vult.
September 19,1957. Weerasooriya, J.—
This is an appeal by the plaintiff from an order of the District Judge ofMatale setting aside a sale held in execution of the decree entered in thecase. The property sold was that mortgaged with the plaintiff on thetwo bonds sued upon, and the sale was subject to two earlier bonds,also in favour of the plaintiff, for securing other loan3 of Rs. 13,000 andRs. 1,000 respectively on. which, according to the evidence given bythe plaintiff, interest had accrued to the amount of Rs. 7,000 at the timeof the filing of the present action.
The only substantial ground of objection to the sale specified in theapplication to have it set aside was that the sale had not been dulyadvertised. But at the inquiry held into the application counsel forthe defendant proceeded to raise various other objections to the saledespite the submission of the plaintiff’s proctor that the defendant was,as a matter of law, restricted to the particular objections specified in hisapplication. One of the new objections raised was the alleged non-oompliance with the provisions of section 50 (4) of the Mortgage Act,No. 6 of 1949, which require that the person conducting the sale shallfirst put up the land for sale at the current market value of the landas appraised by him or by the Court, as the case may be ; and it was onlyon this ground that the learned District Judge made the order settingaside the sale.
Perera v. Karunatilleka
As the mortgaged land had in this ease been directed to be sold by theFiscal without being previously seized as provided by section 49 of theMortgage Act, section 282 (inter alia) of the Civil Procedure Code appliedto the sale by virtue of section 61 (1) of the Mortgage Act. It wasnecessary, therefore, as required by section 282 (2) of the Civil ProcedureCode, that the grounds of objection to the sale should be notified to Courtwithin thirty days of the receipt of the Fiscal’s report relating to the sale,and the Court was precluded from inquiring into any objection not sonotified. This alone would, in my opinion, be sufficient reason for settingaside the order appealed from. But even considering the objection onits merits all that could be urged is that the report of the officer who heldthe sale did not specifically state that he first put up the land for saleat its appraised value. But he has given evidence at the inquiry thathe duly did so and that there wero no bidders at that figure. His evidenceon the point has not been contradicted even by the defendant whohimself gave evidence and said that he was present at the sale. Takingthis evidence in conjunction with the omission to refer to this matterin the objections set out in the application for the sale to be set aside(and it is inconceivable that if the officer conducting the sale had beenguilty of such a vital irregularity the objection would not have beentaken at the first available opportunity) the probability appears to bethat the land was put up for sale at the appraised value.
The order appealed from is set aside with costs in both Courts.
Saxsoni, J.—I agree.
Order set aside.
KANAKASABAI, Appellant, and CADER, Respondent