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Present: Lascelles C.J. and Pereira J.
PERERA v. ABEYRATNA et al.
181—D. C. Colombo, 33,620.
Mortgage decree under' s. 201, Civil Procedure Code—Separate action bya party to set aside sale on ground of irregularity—Civil ProcedureCode, s. 344.
It is not open to a party to an action in which a mortgage decreeunder section ‘201 of the ‘ Civil Procedure Code has been entered upto bring a separate action to have a sale of land in execution of thedecree set aside on the – ground of irregularity. He must, in termsof section 341 of the Code, move in the Court executing the decree.
rpHB facta are set out in the judgment of Pereira J.
Bawa, K.C. (with him H. A. Jayetvardene), for appellants.
Sampayo, K.C. (with him B. L. Pereira), for respondent.
Cur. adv. vult.
■October 21, 1912. Pereira J.—
The first defendant in this case is assignee of the decree enteredup in case No. 32,296 of the District Court of Colombo, which is amortgage decree under section 201 of the Civil Procedure Code. Inexecution of that decree two parcels of land were put up for sale bythe auctioneer named in it, and purchased by the second and third•defendants respectively. The plaintiff, who is the judgment-debtoron the decree, brings this action to have the sale of the two parcelsof land cancelled on the ground of certain irregularities which hesets forth in the plaint, and the question has been raised whether,in view of the provision of section 344 of the Civil Procedure Code,it was open to the plaintiff- to bring a separate action In this wayto determine what, it is contended, is a question relating to the•execution of the decree. I may, in passing, observe that if, in the
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above circumstances, the remedy by means of a separate action were
open to a party, I doubt very much that he could, as the plaintiff Pebbiba J*has here done, amalgamate his claims in one action where two perera v.separate parcels of land have been sold under the decree to two Abeyratnaseparate individuals. But, as observed above, the only questionfor decision at present is whether a separate action could bebrought at all. The terms of section 344 are quite clear. It runsthus:—
“ All questions arising between the parties to the action inwhich the decree was passed, or their legal representa-tives, and relating to the execution of the decree, shallbe determined by order of the Court executing the decree,and not by separate action.
So that, if the present question can be said to be a questionbetween the parties to the original action, there can be no doubtthat the section would apply. It has been argued that in consideringthe meaning of the section its location in the Code should be takeninto account. It is said that it appears in the Code as a section ofchapter XXII., and that therefore it applies to questions, other thanthose specially provided for by section 282, in connection with 6uclrexecutions only as are treated of in that chapter. In the first place,the plain words of the section do not justify the assumption that itwas intended to have such a limited operation. In the next, thesection is one of several under the heading “ General Provisions, ”and it will be seen that under that heading there are several sections(I need not enumerate them here) that are obviously intended tohave general application, and must necessarily be allowed operationin connection with the execution of decrees under section 201.
Now, to come to the consideration of the question, whether, inview of the fact that the execution purchasers are not parties to theoriginal action, the present question can be said to be one between“ tiie parties to the action, ” so as to bring it within the operation ofsection 344—the section of the Indian Code corresponding to thissection is section 244. It is in parts .material to the present inquiryexpressed in substantially the same terms as those of the section ofour Code, and so early as 1886 it was held by a Full Bench of theHigh Court at Allahabad (see Basti Bam v. Fattu1) that the provi-sions of section 244 of the old Indian, Code of Civil Procedureprohibited, not only a suit between parties and their representatives,but also a suit by a party or his representatives against a purchaserat a sale in execution of the decree, the object of which was todetermine a question which properly arose between the parties ortheir representatives and related to the execution, discharge, orsatisfaction of the decree. The action there was an action to setaside an execution sale on the ground that it was illegal and void, as
i 7. L. R. 8 AIL 146.
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1912. it contravened the provisions of a certain Indian Act known as thePereira J. ®en* -Aot. That decision was followed in the case of Dhani Ram v.
Chaterbhury 1 and many other cases; and eventually, in the case of
Abeyratna Sanyal v. Kali Das,2 on appeal from the High Court of Calcutta, thePrivy Council held that where questions were raised between theparties to a decree relating to its. execution, discharge, or satisfaction,the fact that a purchaser at a judicial sale who was no party to thedecree of which the execution was in question was interested andconcerned in the result had never been held ■ to prevent the appli-cation of section 244 of the Civil Procedure Code limiting the disposalof those matters to the Court executing the decree. In the courseof their judgment their Lordships observed as follows: —
It is of the utmost importance that all objections" to executesales should be disposed of as cheaply and as speedilyas' possible. Their Lordships are glad to find that theCourts in India have not placed any narrow constructionon the language of section 244, and that when a questionhas arisen as to the execution, discharge, or satisfaction .of a decree between the parties to the suit in which thedecree was passed, the fact that the purchaser who is noparty to the suit is interested in the result has never beenheld a bar to the application r uhe section. ”
This is a binding authority. Two local cases were referred to inthe course of the argument: Sultan v. Packeer2 and GoanetiUeke v.Goonetilleke* In the former no objection to the action appears tohave been taken in the Court below, and there is no reference at allto such an objection in the'judgment of Hutchinson C.J., but mybrother Wood Renton incidentally refers to an argument by thecounsel for the appellant in that case based upon the above objection,and he says that in the view that he has taken of the question of costsit is unnecessary to deal at length with this argument, and disposesof the matter with an expression of opinion against the contentionof the appellant’s counsel. The Indian cases mentioned above donot appear to have been cited in that case. The ruling of Goonetillekev. Goonetilleke* however, appears to me to accord with the appellant'scontention in the present case. I would set aside the judgment. appealed from, and dismiss the plaintiff’s action with costs.
I entirely concur, and have only to add that in Goonetilleke v.Goonetilleke* to the decision of which case I was a party, the deci-sion of the Privy Council in Sanyal v. Kali Das 2 was considered, andwas the authority, so far as the judgment depended on authority,.on which our decision was based.
11- L. R. 22 All. 86.* (1910) 14 N. L. B.,52.
2 I. L. R. 19 Cal. 683.« 15 N. L. R. 272.
PERERA v. ABEYRATNA et al