Sekappa Chetty v. Murugappa Chetty.
1933Present: Macdonell C.J. and Drieberg J.
SEKAPPA CHETTY et al. MURUGAPPA CHETTY et al.
74—D. C. (Intyj) Colombo, 32,566.
Fiscal's conveyance—Sale under mortgage decree—Right of purchaser to ask forplan—Power of surveyor to enter land—Order of Court—OrdinanceNo. 21 of 1927, s. '12 (5).
Where property is sold by the Fiscal in jexecution of a hypothecarydecree, a plan is not an essential part of the conveyance issued to thepin-chaser, unless the Court otherwise orders.
HE plaintiffs obtained judgment against the defendant on a mort-gage bond on April 30, 1929. An order for sale was issued to the
Deputy Fiscal under section 12 of the Mortgage Ordinance, No. 21 of1927. One of the hypothecated properties which were sold was anundivided portion of land of 16 acres from and out of a larger landcontaining in extent 400 acres.
When the Fiscal’s surveyor went to the land to survey it for the purposeof a conveyance, the respondent, who claimed title to the larger land,objected. When this was reported to Court, the appellants moved onSeptember 12, 1930, for a notice on the. respondent to show cause why heshould not allow the Fiscal’s surveyor to enter the land. On the res-pondent showing cause, the learned District Judge held that a surveyvvas not necessary and that the Fiscal should convey to the appellantsthe land as described in the order of sale.
N. E. Weerasooria, for appellant.—The sale was by the Fiscal. Undersection 12 of Ordinance No. 21 of 1927, sections 282 to 286 of the CivilProcedure Code apply. Under section 286 no Fiscal’s conveyance isissued without a plan. The proviso says “ to all conveyances ….there shall be annexed a sufficient map ”. There is no earlier plan. Asurvey is necessary. No prejudice will be caused. The rights, if any,of the respondent, will remain unaffected.
H. V. Perera, for respondent.—The execution sections of the Codeare so framed as to protect the rights of the party in possession, e.g.,right to claim on seizure, sections 241 to 247, also where possession issought to be given, sections 325 to 330. Under section 12 (3) (b) of Ordi-nance No. 21 of 1927 the Fiscal cannot enter without an order of Court.If he cannot enter, he cannot survey. Section 286 must be read asmodified by section 12 (3) (b).. Where the Court refuses to make an orderto enter, the purchaser must be content with a conveyance giving thedescription without a plan. Provision is made by section 12 (5). Seealso schedule for form of conveyance. A plan is unnecessary. Thepurchaser should file an action.
9J. S. B 16681 (4/52)
MACDONELLi C.J.—Sekappa Chetty v. Murugappa Chetty.
Weerasooria, in reply.—An action only binds the parties to it. A partyin possession is under no obligation to claim. Parties are agreed on thecorpus sold. Section 12 (3) does not apply where it is in conflict withsection 286. If so, express words would have been used. Counsel-cited Ukku Menika v. Ratwatte V
February 27, 1933. Macdonell C.J.—
In this case the plaintiff-appellants had obtained a mortgage decreeand a commission had been issued to the Fiscal to sell the mortgagedproperty. The sale was held and the plaintiffs became purchasers, doingeverything and paying all moneys necessary for them to be^entitled to aconveyance after the sale. No special conditions seem to have beenattached by the Court to the order for sale. The plain tiff-appellants thenrequested that the Fiscal should send his surveyor on to the propertyso as to make a plan for annexure to the conveyance as required by section286 of the Civil Procedure Code. The land to be surveyed was describedas follows:—“ All that undivided portion of land in extent sixteen acresfrom and out of all that land called Higgala alias Rankiripetiyehenyaya,situated at Ambamalla in Lower Bulatgama aforesaid ; and bounded onthe north by the village boundary of Punahela, on the east by Ratmale-hena Heenna, oh the south by Katuhena Galenda, and on the west byKatukitulehinna, containing in extent four hundred acres (a 400). ”The plairitiffs-appellants then were asking for a survey of the whole- ofthese 400 acres so that a plan of the same might be annexed to theirconveyance, but that plan would obviously not show any divided portionof the 400 acres as having been sold to them. The owner of the 400acres, the respondent to the present appeal, objected through his agentsto the Fiscal’s surveyor going upon his 400 acres so as to make thesurvey requested, in fact he refused entrance to the Fiscal’s surveyorfor the purpose of the survey. The plaintiffs-appellants thereuponapplied to the District Court for an order upon the respondent to permitthe Fiscal’s surveyor to enter these 400 acres to make the survey desired.The learned District Judge refused this order and it is from his refusalthat the present appeal is brought.
It is conceded by the appellants that there was no plan attached to themortgage which they had originally taken over the property which theyhave now purchased ; the mortgage itself contained the description of theland set out above, and no further description. It was argued to thisCourt that the words of section 286 are peremptory ; that a plan was anessential part of the conveyance and that without such plan a conveyancecould not be obtained nor could the order of the Court confirming thesale be properly carried into effect. It was further argued that there,must be certainty about the Court’s order ; the Court by confirming thesale had in effect ordered a conveyance to be made to the purchaser andsuch a conveyance must be expressed in definite terms, otherwise therewould be no certainty about the Court’s order.
The decree in this case is dated April 20, 1929, consequently the casewill be governed by the Mortgage Ordinance, No. 21 of 1927. Sectionof that Ordinance seems to decide the point raised in this appeal.
1 4 A. C. R. 126.
MACDONELL C.J.—Sekappa Chetty v. Murugappa Chetty.239
Sub-section (1) gives to a Court issuing a mortgage decree certain powerswith regard to giving directions as to the conduct and conditions of thesale. Sub-section (2) says as follows: —
“ Subject to or in default of any such directions, the mortgagedproperty shall, on an order for sale being given by the Court to theFiscal, be sold in like manner as if it had been seized by the Fiscalunder a writ of execution for the amount of the mortgage money,and sections 255 to 288 (inclusive) and 290 to 297 (inclusive) of theCivil Procedure Code, 1889, shall apply accordingly.”
In the present case the only conditions contained in the decree were'that the sale was to be conducted by the Deputy Fiscal and that theplaintiffs were allowed to bid and purchase ; also that the Deputy Fiscalwas to execute the necessary conveyance in favour of the purchaser.Then there was nothing in the facts of the case excluding the effect ofsection 286 of the Civil Procedure Code. If then section 12 ended withsub-section (2), presumably the plaintiff-appellants would have beenentitled to demand that the conveyance given them should-contain aplan, but the section goes on to say in sub-section (3) —
“ On a sale under this section the Fiscal shall not, except by orderof the Court—
(a) seize the property; or
(^) if any occupier, other than the judgment-debtor, objects,enter on the property, whether before or after the sale. ”
This sub-section (3), as I read it, limits the effect of sub-section (2)quoted above. For instance, section 290 of the Code, which by sub-section
is made applicable to sales after mortgage decrees, gives the Fiscal thepower to enter upon the land, but sub-section (3) limits that power bysaying that, unless the Court shall otherwise order, he is not to enter onthe property to be sold if any occupier other than the judgment-debtorobjects, whether before or after the sale. If then a survey cannot bemade without entering upon the land to be surveyed, as was admitted tobe the fact here, then there was a statutory difficulty about making thatsurvey since the occupier, the' respondent, objected to the Fiscal’ssurveyor entering on the land, consequently eh try upon it for the purposeof survey could not lawfully be made. It was argued that section 286directs in peremptory terms that a plan be made, then sub-section (3) ofthis section 12 of Ordinance No. 21 of 1927, would not apply. Withsubmission, I do not so read the sub-section. I think it places a clear limiton the applicability of the various sections of the Civil Procedure Codedeclared by sub-section (2) generally to be applicable. They are to beapplicable, doubtless, but subject to the limit imposed upon their appli- icability by sub-section (3).
But further, sub-section (5) of this section 12 must be considered:—
“ On a sale by the Fiscal under this section, the form of conveyancecontained in the schedule to this chapter shall be used unless theCourt otherwise orders. ”
Now the conveyance established by this Ordinance is clearly the oneto be used in the present case. The Court has not “ otherwise ordered ”
260DRIEBERG J.—Sekappa Chetty v. Murugappa Chetty.
and therefore the statutory form is the one that must be used. Nowthat statutory form says nothing about a plan. It says that the Fiscalsells and. assigns unto the purchaser “ the property described in theschedule hereto ”, and below there is a statement that the schedule is to‘contain a description of the property conveyed”, but the statutoryform is wholly silent on the question of plan. It was argued to us thatthe words “ description ” and “ described ” themselves imply a plan.
I am afraid I do not so read them. The words “ description ”, “ described ”referred to something written, not to something depicted. If thestatutory form had used the word “ delineated ” or some such term, thenit might well have been argued that the statutory form contemplated aplan. But in the absence of any such words I must hold that this statu-tory form does not require a plan to be annexed, in that respect differingfrom the conveyance contemplated by section 286, which does so require.
The effect then of the Ordinance No. 21 of 1927 seems to be that, in theabsence of a special order by the Court, the conveyance which the pur-chaser on a mortgage sale is entitled to ask for is the statutory form givenat the end of the Ordinance, and as that statutory form is silent as to thenecessity of a plan, then the purchaser must be contented with a convey-ance which does not contain a plan. If this be the correct interpretationof this Ordinance No. 21 of 1927, then the order appealed from was right.To enable the plaintiff-appellants to obtain the conveyance which theyare entitled to demand, no plan is necessary and therefore no entry uponthe land of the respondent is . necessary either. If the above considera-tions hold good then this appeal must be dismissed with costs.
The appellants obtained judgment against the defendant on a mortgagebond on April 30, 1929 ; execution of the decree was therefore subjectto the provisions of section 12 of the Mortgage Ordinance, No. 21 of 1927.An order for sale was issued to the Deputy Fiscal; in the order it wasstated that the sale was to be conducted “upon the conditions annexed”;no conditions of sale were annexed and the only condition in the orderus a direction that the decree holders were entitled to purchase and tocredit to the extent of their claim and costs. One of the hypothecatedproperties which were to be sold was an undivided portion of landin- extent 16 acres from and out of all that land called Higgala aliasRankiripetiyehenyaya, situated at Ambamalla in Lower Bulatgama,in the. District of Kegalla; and bounded on the north by the villageboundary, of Punahela, on the east by Ratmalehena Heenna, on thesouth by Katuhena Galenda, and on the west by Katukitulchinna,containing in extent 400 acres. This land and another were sold bythe Fiscal and were bought by the appellants and the sale was con-firmed. When the Fiscal's surveyor went to the^ land to make asurvey of it for the purpose of the conveyance by the Fiscal, the superin-tendent of the estate employed by the respondent would not allowhim to enter the land, which he said was the property of the respondent.No order of Court had been obtained authorizing the Fiscal to surveythe land. The respondent claims the land within which the property
DRIEBERG J.—Sekappa Chetty v. Murugappd Chetti).261
mortgaged lies wholly or in part. This was reported to the Court andthe appellants then moved on September 12,/ 1930, for a notice on therespondent to show cause why he should not kllow the Fiscal’s surveyorto enter the land and survey the subject of the decree. The respondentshowed cause against this and the learned District Judge held thatthere was no necessity for <a survey and that the Fiscal should conveyto the appellants the land as described in the order of sale. The appeal.is from this order.
Mr. Weerasooria contended that no order of Court was necessaryfor the purpose and that if one was, -his application to the Court ofSeptember 12, 1930, was in effect an application for such leave and thatit should have been granted.
His first contention is based on the assumption that the decree hadto be executed as if it were a simple money decree falling under thehead A of section 217 of the Code, in which case a survey of the landwould be a necessary step in the preparation and execution of theconveyance by the Fiscal. But it was held in many cases, of winch Ineed only refer to Walker v. Mohideen that mortgage decrees do notfall within this class. This led to the passing of the Mortgage Ordinance,No. 21 of 1927. Under section 12 (2) of that Ordinance, the order forsale having been given to the Fiscal the property would have to be soldin the' same manner as if it had been seized by the Fiscal. under a* writof execution for the amount of the mortgage money, that is to say, asif it was in execution of a decree falling under head A of section 217;in such a case, sections 255 to 288 and 290 to 297 of the Code will apply,and under section 286, there being no plan available, the Fiscal wouldbe obliged to have a survey made for the conveyance. But undersection 12 (3) (b) the Fiscal cannot enter on the property before or afterthe sale, where the occupier,' other than the judgment-debtor, objectsexcept by order of Court. It might be contended that this impliesthat the Fiscal could in the ordinary course enter on the land for thesurvey if it is in the occupation of the judgment-debtor and that it isonly when it is in the possession of another who objects to the entrythat an order of Court is needed. But any doubt there may be on thispoint is removed by section 12 (5) which provides that unless the Courtotherwise orders the form of conveyance where the sale is by the Fiscal,is to be that provided in the Ordinance. This form has no referenceto a plan made by the Fiscal, whereas the form in the Code, which is.for sales in execution of simple money decrees, requires the land to bedescribed in reference to a diagram or map. The Court did not orderthat the conveyance should be with reference to a plan; no surveytherefore was needed, and there was no necessity for the Fiscal to enterthe land to make one. The first point raised, that the Fiscal had theright to enter the land without a special order, must therefore fail.
Regarding the second contention that the appellants’ applicationof September 12, 1930, should be treated as an application under section12 (3) (b) for an order of Court authorizing the Fiscal to enter the land,it appears to me that such an application can only be made where the
1 (1924) 26 N. L. R. 320.
MACDONELL, C.J.—Bandar a v. Punchi Banda.
Court has directed under sub-section (5) that a plan should be made forthe conveyance. In such a case, the Fiscal can enter the land withouta special order for the purpose, but one will be needed if he is resistedby a person in occupation other than the judgment-debtor. Thelearned District Judge was of opinion that it was not necessary to makea plan for the purpose of the conveyance and I think he is right. Inthe case of simple money decrees, the conveyance is the final stage ofthe duties of the Fiscal which begin with seizure, and where there isno plan available, one prepared by the Fiscal is needed to show what.property was seized and sold. In the case of a mortgage, the decreedirects the sale of that which the parties to the bond have agreed shouldbe sold in default of payment of the debt and which it must be assumedthe parties have sufficiently described in the bond. Cases may occurwhere a plan may be necessary but no good reason has been advancedwhy one is needed in this case.
I agree that this appeal must be dismissed with costs.
SEKAPPA CHETTY et al. v. MURUGAPPA CHETTY et al