GARVIN S.P.J.—Ramanathan Chettiar v. Kurera.
1932Present: Garvin S.P.J. and Jayewardene A.J.
RAMANATHAN CHETTIAR u. KURERA et al.
118—D. C. (Inty.) Chilaw, 8,706.
Mortgage action—Sale by auctioneer—Confirmation of sale—Notice to judg-ment-debtor not necessary—Ordinance No. 21 of 1927, s. 12 (1).
Where property is sold by an auctioneer in pursuance of a hypothecarydecree entered under the provisions of the Mortgage Ordinance, No. 21of 1927, the Court is not bound to give notice of confirmation of saleto the judgment-debtor.
PPEAL from an order of the District Judge of Chilaw. The factsappear from the judgment.
Weerasooria (with him Rajapakse, Samarakoon, and J. R. Jaye-wardene) , for the first and second defendants, appellants.
H. V. Perera (with him E. F. N. Gratiaen), for the plaintiff andpurchaser, respondents.
July 18, 1932. Garvin S.P.J.—
In pursuance of a certain hypothecary decree entered in this casevarious allotments of land which were the subject of the hypothecationwere sold on July 7, 8, and 9, 1930. In terms of the decree the sale washeld by Mr. Leitan, an auctioneer. Certain of those allotments werepurchased by the plaintiff and the purchaser of the remaining allotmentswas a stranger to this action. The sale was duly reported to the Courton July 22. On August 22, 1930, the present application was madeto the Court to set aside the sale. Various very general and very vaguelystated grounds were pleaded as reasons why this sale should be set aside.The only two worth noticing are those in paragraphs 4 (c) and (p), namely,that the sales were not held at the times mentioned in the advertisements,and that certain intending purchasers were dissuaded from bidding bythe plaintiff. The application was set down for hearing on February 18,1931. On that day objection was taken by the petitioners themselvesthat the third defendant and the heirs of the fourth defendant had notbeen made parties, and a date was appointed before which, it was quiteclear, the District Judge intended that they should rectify their error
GARVINRamanathan Chettiar v. Kurera.
by bringing those parties before the Court. The matter was fixed forhearing on April 23. On that day objection was taken to the applicationupon two grounds, first, that the petitioners had failed to complywith the directions of the Court given on February 18, and secondly,that the sales of these premises had, in point of fact, been confirmed onAugust 15, 1930, a week prior to the date upon which this applicationwas filed and that the Court had therefore no jurisdiction to entertainthis application or grant the petitioners the relief they claimed. Thefirst of these objections was very strenuously pressed and a long argu-ment appears to have taken place as to the correct interpretation of theterms of the order made by the District Judge on February 18. TheJudge himself was perfectly clear in his mind that it was his intentionnot only that steps should be taken for the purpose of bringing the thirddefendant and the heirs of the fpurth defendant in as parties, but that theapplication was to be dismissed if the petitioners did not actually succeedin bringing them upon the record as parties to this proceeding before theexpiry of March 19. He has, also, expressed in terms which leave nodoubt that he felt that the petitioners were well aware of the real intentionand meaning of the order. It is pressed upon us, however, that, whateverthe intention may have been, the terms of the order are capable of theinterpretation which the petitioners placed upon it. There is no reason,however, to examine that submission further for the reason that thesecond of these objections taken to this application is clearly entitledto succeed.
We were invited to treat this as an application to the Court to vacateits order of August 15, confirming the sale. In view of the admissionthat at the time this application was made the petitioners were notaware that the sale had been confirmed, it is a little difficult to accede tothis request. But even if we examine the petition with a view toacceding to counsel’s request, if that be possible, we are unable to find init such averments as we should have expected to find if this were anapplication to the Court to vacate its order. It was submitted to us,however, that inasmuch as the order for confirmation was made withoutnotice to the petitioners that it was competent for thp Court to vacate itand that there was a sufficient reason for the Court doing so in thatit had confirmed the sale before the expiry of 30 days from July 22,which was the date on which the sale was reported to the Court by theauctioneer who held it. There is nothing in the provisions of the lawapplicable to such sales—I refer to the provisions of Ordinance No. 21of 1927—which require the Court to give notice of an application forconfirmation of a sale held in execution of a hypothecary decree. Section12 (1) enables the Court to embody the directions as to the conditions andconduct of the sale, the person to … . conduct it, the confirma-tion of the sale and the form of the conveyances in the decree. There isnothing in the decree in the nature of directions as to the confirmationof the sale and in the conditions of the sale which were subsequentlyapproved by the Court. The only reference to confirmation is in thecondition which states that the sale is subject to the confirmation of theCourt. Nor is there in the conditions or in the decree or in any subsequentdirections given by the Court a direction specifying any period during
GARVIN S.P.J.—Dias v. Silva.
which the sale held in execution of this decree was to remain in suspensebefore it was confirmed. Counsel has endeavoured to invoke the pro-visions of section 282 and the following sections of the Civil ProcedureCode into the matter. But this is not a sale which was held by aFiscal under the provisions of the Civil Procedure Code, but, as I havesaid, a sale to which the special provisions of the Mortgage Ordinance,No. 21 of 1927, are applicable, and it is a sale which by the very decreeentered in this case and in accordance with its directions was held not bythe Fiscal, but by a person specified by the Court in its decree. Therewould seem to be no reason, therefore, why the Court should not haveconfirmed the sale of these premises as it did. Subsequent to the confir-mation the Court further directed that conveyances should issue to thepurchasers and specified the person by whom such conveyances should beexecuted. Conveyances were in accordance with these directions dulyexecuted. The order confirming the sale is one which the Court wasentitled to make without notice to the appellants: it was not madeper incuriam nor has any ground been alleged or established which wouldentitle the Court to vacate the order.
We were finally invited to treat this as an application made underthe provisions of section 344 to the Court to set aside the sale on theground of fraud. The provisions of section 344 would justify an applica-tion to set aside a sale where relief is claimed on the ground of fraud.But fraud should be specifically and clearly set out and pleaded in theapplication. In this case there is no such plea and it is quite impossibleto construe the language of this petition as embodying an allegation of
The appeal will, therefore, be dismissed with costs.
Jayewardene A.J.—I agree.
RAMANATHAN CHETTIAR v. KURERA et al