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Present : Garvin and Jayewardene A.JJ.
XAXDRISA et al. v. BASTIAN APPU et al.
D. C. Matara, 5,549.
Fiscal's sale—Fafce report by officer conducting sale that appellants were• purchasers—Subsequent complaint to Fiscal that respondents werehighest bidders—Power of Court to confirm sale as if respondentswere purchasers.
The Fiscal’s Arachchi, who conducted the sale, reported to theDeputy Fiscal that the appellants were the purchasers. TheDeputy Fiscal reported accordingly. Subsequently; .complaint wasmade to the Deputy Fiscal that the respondents were the highestbidders at the sale. The Deputy Fiscal Reported to Court thatcomplaint was tnie, and that the Arachchi*s report was false. Therespondents petitioned to Court that they may be declared thepurchasers. The District Judge after inquiry accepted respondents’complaint, and proceeded to confirm the sale as if it were a sale tothe respondent's. The Supreme Court set aside the sale, and directedthat the property be resold.
" Nowhere does the Code contemplate the substitution of anotherperson for the person reported to be the purchaser and the confirma-tion of the sale with so important a modification.^’
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, HE facte .are set out in the judgment.
B. TP. Jayewardene, K.G. (with him H. V. Perera), for theappellants.^
WeeTasuriya, for the respondents*
October 15, 1923. Garvin A.J.—
In pursuance of a writ of execution issued in this case, the Fiscalcaused certain leasehold interests in several lands to be seized..In due course a sale was held and conducted by the Fiscal's Arachchi,.who reported to his superior officer, the Deputy Fiscal, that- threepersons—Bastian Appu, Greedrick Appu, and Adrian, who are theappellants—were the purchasers. The Deputy Fiscal in makinghis return to the writ reported in the usual form that he had causedto be seized, and sold the property enumerated in the annexed list.An examination of the list discloses the names of Bastian, Greedrick,and Adrian as the purchasers. It would seem that shortly afterthe sale, complaint was made to the Deputy Fiscal that the respond-ents to this appeal were the persons who were the highestbidders at the sale, but that the Fiscal's Arachchi dishonestlysubstituted the names of the appellants as the purchasers. TheDeputy Fiscal has made a'note to this effect on the report whichhe sent in, to which he has added that after inquiry he had formed theopinion that the -complaint was true and that the Arachchi’s reportfalse. In the result he reported that a sale had been held atwhich certain persons were the purchasers for a price set out in thereport, but added that upon inquiry his opinion was that his Fiscal'sArachchi’s report to him, upon which his report* is based, was false.
The respondents to this appeal then petitioned the Court thatthey may be declared the purchasers of the properties sold underthe writ/ After inquiry the District Judge accepted the case thatthe report was false and proceeded to confirm the sale as if it werea sale to the respondents upon the basis of a rectification of thereport made by, himself. The Civil Procedure Code requires theFiscal to report the circumstances of every sale held by him orhis deputies under a writ of execution. Upon receipt of such 4areport and after the expiry of a month therefrom, the Court mayconfirm the sale so reported ; equally it may set it aside on certaingrounds specified in the Code. But nowhere does the Code contem-plate the substitution of another person for the person reported tobe the purchaser and the confirmation of the same with so importanta modification. Such a sale as this is not expressly provided for,,but it is manifest that a report of a sale with the qualification thatthe report is probably false is not a report upon which the Courtscan act. It must be assumed that a Court has power to makeall necessary inquiries to satisfy itself that the report is true. The
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District Judge has done thisv and thinks that there are grounds
for believing that the report is false. He cannot be expected to Gab vim AJ.
confirm a sale upon a false report. But it is a very different thing
to say that he has the right to confirm a sale which has not been BaaHon *
reported to him, as if a report in terms of his finding at such anAppu
inquiry were before him. The report contemplated by the Court,
is a true report by the Fiscal that he had sold the property under
seizure, or that he had caused it to be sold to the persons named
as purchasers. It is only a sale so reported which can be confirmed.
The Fiscal did not conduct the sale; he caused the property to besold by a deputy who stoutly maintains that the, purchasers werethe appellants. Whether the view taken by the Fiscal as to thefacts of the sale as reported by him be correct or not—and I see noreason to differ from him—it is only his opinion, and he is not in aposition to report as a fact that the purchasers were the respondentsand not the appellants.
Under all the circumstances of this case, the only possible orderis to set aside the sale as reported by the Fiscal, and direct that theproperty be resold and I order accordingly.
The appeal is allowed, but in view of the finding of the Judgeon the facts, I make no order as to the costs of the appeal.
Jayewardene A.J.—I agree. –
NANDRISA et al. v. BASTIAN APPU et al