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G. EColombo, 22,992.
Application tosetaside sale—Debtorhaving no saleable interest—Con-firmationofsale—Interlocutoryorderin Court ofReguesis—
Appeal—Civil Procedure Code, ss. 283, 284 and 285.___
A purchaser at a Fiscal’s sale may apply under section 284 of theCivil Codetoset aside the saleon the ground thatthe person
whose property he purchased had no saleable interest therein)even aftersuch sale has been confirmedunder section283 of the
No appeal lies from an interlocutory order in the Court of Bequests.
N this case Parangige Manchohamy and jier son as heirs ofOdaris Appu, obtained judgnt^pt against Patikiri Arachchigey
William Appuhamy for Rs. 84.80, with interest and costs. On the28th April, 1903, writ was- issued by the plaintiffs against the defend-ant, and on 9th June, 1903, the Fiscal, after the usual formalities,sold the right, title, and interest of the debtor in and to an undividedhalf share of an allotment of land, Heraligahawatta, at Homagama,and Arangalage Louis Singho became the purchaser for the sum ofRs. 136. * The sale was confirmed by the Court on the 4th Septem-ber, 1903, andythe proceeds sale were drawn by the plaintiffs. The
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Fiscal executed a transfer in favour of the purchasers on the 16thJune, 1904, and it was registered on the 18th July, 1904, the pur-chaser spending for the same Bs. 29. On the 4th August, 1905, thepurchaser died a petition making the defendant and the plaintiffsrespondents to his petition, alleging that subsequent to his obtainingthe transfer he came to understand that the defendant who hadpurchased the half share of the land on the 29th day of January,1897, had sold the same on the 23rd April, 1903, to DampahalageyArnolis, who was since then the owner of the land, and that thejudgment-debtor, on the date of sale, had no saleable interest in thesaid land. He asked that the Fiscal’s sale be set aside under section284 of the Civil Procedure Code, and that the execution-creditors becondemned to pay to the petitioner the sum of Bs. 136, the proceedssale of the land, with interest thereon at 9 per cent, per annum, andalso .the sum of Rs. 29.50, being the expenses incurred for obtainingthe transfer. It was contended for the execution-creditors that thepurchaser had no remedy under section 284 after the sale had beenconfirmed and the transfer executed, and that his only remedy wasby a separate action. The Commissioner overruled the objectionand fixed the matter for inquiry as to whether the defendant hadany saleable interest in the property at the date of sale. Afterexamination the Commissioner directed the execution-creditor to payback to the petitioner the purchase amount, Bs. 136, with costsRs. 21. The creditors appealed.
M. de Saram, for appellants.
Allan Drieberg, for respondent.
1st December, 1905. Layard, C.J.—
This case was reserved by me that it might be argued before twoJudges, as I doubted whether an application under section 284 couldbe made after the sale by the Fiscal had been confirmed by the Court.There are no limiting words in section 284; the section seems toallow a purchaser at any time to apply to the Court by petition onsummary procedure to set aside a sale on the ground that the personwhose property he purchased had no saleable interest therein. Itdoes not limit the right to proceed by summary procedure in anywav, nor enact that steps should be taken prior to the confirmationof a sale under section' 283. Comparing section 285 with section,315 of . the Indian Code of Procedure, it appears to me that the word“ or ” has been left out by accident after the word “ 284 ” beforethe words “ when it is found ” in 285. Section 285 provides for therefund of the purchase -money if the sale of immovable property is
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set aside under section 284, or if it has been found by separate action^
that the judgment-debtor has no saleable interest in the property
which has been sold. I find the Indian Courts have held that IlAYABI>>a purchaser may apply for a refund of the purchase money under~thesimilar section, 315 of the Indian Code, when it has been found in aTegular suit to which the decree-holder was a party that .the propertydid not belong to the judgment-debtor^ I have only to add thatthis appeal was really premature because the order appealed againstwas an interlocutory order, and no appeal lies from an interlocutoryorder in the Court of Bequests. Counsel for appellant informs methat the appeal was taken at the wrong time owing to some indul-gence I had given to some other counsel in another case, which Iought not to have done. I did not intend that that particular caseshould be used as a precedent to increase the number of appeals tothis Court. I now very much regret that I allowed any such indul-gence to any counsel. I shall be careful not to do it in future. Iunderstand, however, that appellant's proctor in the Court belowwithdrew from the case after the order was made declaring that theCourt had jurisdiction to – proceed in summary manner under theprovisions of section 284. I think it would be hard to deprive theappellant of Her "right to be heard on the merits in the Court below.
I set aside the order of the Commissioner and direct that the matterbe proceeded with summarily in the lower Court. The appellantmust’pay the costs of this appeal and all costs incurred by the res-pondent in the Court of Requests. Any further costs which maybe incurred in the Court of Bequests to abide the order of theCommissioner.
Wendt, J.—I agree.
MANCHOHAMY v. APPUHAMY