DIAS —Mary Fernando v. Francis Fernando.
1947Present: Dias J.
MARY FERNANDO, Appellant, and FRANCIS FERNANDO,
S. C. 56—C. R. Negombo, 46,285.
Execution—Right to re-transfer—Sale in execution—Seizure irregular—Saleinvalid—Civil Procedure Code, s. 229 (c).
A regular and perfect seizure by the Fiscal is an essential preliminaryin the case of sales in execution. Where there has been no such seizureany sale that may have taken place is not merely voidable but void.Bastian Pillai v. Anapillai (1901) 5 N. L. R. 165, followed.
PPEAL from a judgment of the Commissioner of Requests,Negombo.
H. W. Jayewardene, for the plaintiff, appellant.
E. S. Perera (with him S. A. Marikar), for the petitioner, respondent.
Cur. adv. vult.
July 8, 1947. Dias J.—
The material facts are as follows:The plaintiff by deed No. 532 of
September 22, 1943, sold and transferred a certain land to the defendantfor a consideration of Rs. 300. The plaintiff, however, was only paid asum of Rs. 163 by the defendant. In this action the plaintiff on October5, 1945, sued the defendant to recover the balance purchase price, andobtained decree in her favour. The defendant, however, on October 9,1945, that is to say, four days after plaintiff’s action was filed, by deed968 transferred the land to the petitioner with an agreement by the latterto reconvey the land to the defendant. Therefore, at the date of thedecree in plaintiff’s favour, the defendant had no legal title to the land-All he had was the right to claim a re-transfer of the land from thepetitioner at some future date.
On March 28, 1946, the Fiscal on the plaintiff’s instructions seizedthe land in question—see XA. By his letter dated April 24, 1946—XC,the proctor for the plaintiff requested the Fiscal to sell the defendant’sright to claim a reconveyance of the land as well as the land. XB is theFiscal’s sale report. From this it appears that on May 24, 1946, theFiscal purported to sell the land as well as the right of the defendant to
DIAS J.—Mary Fernando v. Francis Fernando.
claim a re-transfer on deed No. 961. The defendant’s right to claim are-transfer was created by deed No. 968. Be that as it may, the right ofthe defendant to claim the re-transfer was never seized by the Fiscalbefore he proceeded to sell it. Such a right of a re-transfer is movableproperty—Dias v. Alahakodjn1 Vallipuram v. Manikama. The right toclaim a re-transfer being intangible and incapable of manual seizure, itshould have been seized in terms of section 229 (c) of the Civil ProcedureCode—Arnolis Appuhamy v. Haramanis Kalotuwa*. Admittedly, thiswas not done. Curiously enough, the petitioner purchased her own landas well as her obligation to retransfer the land to the defendant.
The position then is that in regard to the land, at the date of theseizure, the defendant judgment debtor had no title to it, the title beingalready in the petitioner under deed 968. Therefore, at the sale to thepetitioner no title passed to her for she was already the owner. In regardto the right of the judgment-debtor to claim a re-conveyance of theproperty, it had not been seized by the Fiscal under section 229 (c).
The petitioner thereafter moved to set aside the sale. She allegedthat she was induced to purchase the^ property by fraud. Fraud has notbeen proved by the petitioner, and nothing further need be said on thisaspect of the case. The other grounds put forward were that thejudgment-debtor had no saleable interest in the land which was sold,and that the sale of the right to re-transfer having taken place withouta valid seizure there existed an illegality which vitiates the sale. Onboth these grounds the Commissioner of Requests held in favour of thepetitioner and the plaintiff judgment-creditor now appeals.
With regard to the sale of the land, it is submitted that where theFiscal seizes the land of a person other than the judgment-debtor, it isthe duty of the owner to come forward and prefer a claim. The petitionerfailed to do so. That may be so, but section 284 which deals with salesof immovable property provides that the purchaser of land at Fiscal’ssale may apply to the Court to set the sale aside on the ground thejudgment-debtor had no saleable interest therein. On such applicationthe Court can "make such order as it thinks fit, provided both thejudgment-debtor and judgment-creditor have been made respondentsto the petition. That has been done in this case. I do not think thefact that the petitioner knew or should have known that the judgment-debtor had no saleable interest, and in fact was the owner herself, will not,I think, necessarily debar her from applying for relief, although it mayhave an effect on the order which the Judge may ultimately make, andthe order for costs which will follow the adjudication.
With regard to the right to claim a re-conveyance, the appellantconcedes that there was no proper seizure. The judgment-debtorundoubtedly had a saleable interest in it. Does the fact that the Fiscalfailed to seize that right under section 229 (c) make the subsequent saleinvalid ? Bastion Pillai v. Anapillai4 is in point. It was held byBonser C.J. and Browne J. that a regular and perfect seizure by theFiscal is an essential preliminary in the case of sales of execution. Where
1 (1938) 40 N. L. B. 153 at p. 157.3 (1926) 8 C. L. Bee. at p. 111.
* (1931) 34 N. L. B. 137.4 (1901) 5 N. L. B. 165 and also alp. 31.
DIAS J.—Mary Fernando v. Francis Fernando.
there has been no such seizure, any sale that may have taken place is notsimply voidable but de facto void. In that case, as here, it was thepurchaser who was moving to set aside the sale. At the first argumentof that case, counsel for the respondent stated that if the case was sentback he would be able to show that there had been a regular seizure.The Supreme Court acceded to this request. When the case came backit was re-argued before Moncreiff and Browne JJ. who held that therespondent having failed to prove a valid seizure, the earlier judgmentof this Court should be affirmed. We have, therefore, in effect threelearned Judges concurring in that decision. Counsel for the appellant,however, argues that Bastian Pillai v. Anapillai (supra) followed the Indiancase of Mahadeo Dubey v. Bhola Nath Dichit1 which has been doubtedby the Privy Council in Tasadd-uk v. Ahmad Husain ‘ and that subsequentIndian cases have taken the view that Mahadeo Dubey v. Bhola NathDichit (sup-ra) is no longer law, e.g., see Sheodhyan v. Bholanath &c. He,therefore, submits that Bastian Pillai v. Anapillai (supra) can no longerbe regarded as a binding authority and that a sale which follows anirregular seizure is not ipso facto rendered void.
The case of Bastian Pillai v. Anapillai (supra), however, has beenj-eferred to and the principles laid down have been accepted as goodlaw up to 1939 in no less than four subsequent decisions including aDivisional Bench and a five Judge decision.
In Thambaiyar v. Paramusamy Aiyer *, which is the decision of aDivisional Court, Bastian Pillai v. Anapillai (supra) was cited andreferred to as good law. In Silva v. Selohamy= it was held that anirregularity in publishing and conducting the sale of movable propertyvitiates the sale provided substantial damage has been thereby causedto the person impeaching the sale. Schneider J. said “ If he meansby this that he had not received the notice required by section 229 to begiven by the Fiscal, it would appear that the sale cannot stand as pointedout by this Court in Bastian Pillai v. Anapillai (supra). ” In ArnolisAppuhamy v. Haramanis Kalotuwa (supra) the case was definitelyfollowed. In Wijeywardene v. Podisingho*, Bastian Pillai v. Anapillai(supra) was distinguished, but not doubted. In that case the Allahabadcase was also referred to. This was a decision of a bench of five Judges,and neither of the counsel who argued that case took the point that thelocal case was no longer law. In these circumstances, it is impossible tohold that Bastian Pillai v. Anapillai (supra) is not an authority. It is inpoint and shows that the sale without a valid seizure is a nullity.
I agree that no substantial damage has been caused to the petitioner,who is to a great extent responsible for the predicament in which she findsherself. When there is an illegality in the sale it may be set aside evenif no loss or damage was sustained^-Dius v. AlahakoonI affirm the order of the learned Commissioner of Requests, but directthat the costs both here and below shall be borne by each party.
1 S Allahabad 86.• (1917) 19 N. L. R.385.
1 11893) 21 Cal. 66.5 (1923) 25 N. L. R.113.
* (1899) 21 Allahabad 311.6 (1939) 40 N. L. R.217.
»(1938) 40 N. L. R. at p. 155.
MARY FERNANDO, Appellant, and FRANCIS FERNANDO,Respondent