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Present: T)e Sampayo and Schneider JJ.SUPPRAMANIAM CHETTY v. JAYAWARDENE el ad.
30 and 30a—D. C. Badullu, 3,169.
Mistaken view on the part of the Fiscal's officer as to the identity of theproperty seized—Is sale invalid 1■—Inherent potoers of the Courtin respect of a party who obstructs the execution of its own orders—Civil Procedure Code, ss. 237 and 323.
A mistaken view on the part of a Fiscal's officer as to the identityof the property seized cannot invalidate the actual seizure or sale,though it may form the basis of an application under section 292of the Civil Procedure Code to set aside the sale on the groundof irregularity, which has misled bidders and prejudiced the sale.The Code lays down the mode of seizure, and the fact of seizuremust depend upon its observance, and not upon any particularbelief of the Fiscal’s officer.fjl HE facts are set out in the judgment.
Samarawickreme, for appellant.
Bawa, K.G. (with him F. H. B. Koch), for third and fourthrespondents.
Bawa, K.G. (with him Koch), for third and fourth respondents,appellant.
Samarawickreme, for petitioner,; respondent.
July 4, 1922. De Sampayo J.—;
Appeal No. 30 i6 one taken by the plaintiff from an order of theDistrict Judge dismissing, an application to deal with the thirdand fourth respondents to the application for resisting a Fiscal’sofficer, who was entrusted with the execution of a writ, to put theplaintiff in possession of a certain land. It is necessary to statethe facts in some detail for the purpose of deciding this appeal.This action was brought hj the plaintiff on a mortgage bond bearingNo. 308 executed by the first and second defendants, by which anumber of lots of land constituting a tea estate known as Udawelaestate was mortgaged to secure the payment of a certain sum ofmoney. The third respondent to the application was joined in theaction as the third defendant, as he was in possession of some of thelots of land on the basis of a Fiscal’s sale in execution against themortgagors subsequently to the mortgage. The fourth respondent
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ie an employee of the third respondent, and is made a respondent
to the application, as he was one of the persons who obstructed the de Sampayo
Fiscal’s officer. The mortgaged lots were enumerated in the prayer
of the plaint, and among them were the following, which were, as Suppraina-
usual, described by boundaries :—Che.Uif
(la) Udawelawnlawalawwewatta, in extent 13 acres and ^.'/awortlen*20 perches.
(15) Two contiguous allotments of land called WattebeddeKopiwatta and Gabbalawatta, in extent 14 acres and 3roods.
(1<7) Udawellawalawwewatta, in extent 22 acres 1 rood and10 perches, “ according to survey and plan of V. G. Potger,
At the trial of the action the third defendant raised* questions oftitle, and after evidence the District Judge found in favour ofthe plaintiff for the lots (la), (15), and other lots, but not forlot (lg), and accordingly a decree was entered for the sale of thelots (la), (15), and the other lots only. At the Fiscal's sale theplaintiff himself became purchaser, and duly obtained Fiscal stransfer. On plaintiff’s "application under section 287 of the CivilProcedure Code, the Court issued a writ to put him in possession,but the third and fourth respondents. obstructed the Fiscal’s officerin putting plaintiff in possession of the portion of the' estate on whichthe factory stands, and which is .said *to be lot (lg) in the plaint.
The fact appears to be, as rightly found by the District Judge on theevidence given at this inquiry, that the disputed lot is included inlots (la) and (15), for which the plaintiff obtained a mortgagedecree, and that there is no separate land to be claimed as lot (lg).
It appears to be a case of overlapping. The confusion probablyarose from the circumstance that the mortgagors had deeds forlots (la) and (15). and there was only a survey for what wasdescribed as lot (lg). Hence the original finding of the Courtin favour of the plaintiff for lots (la) and (15) only. The notarywho attested the mortgage bond would appear to have put in theland appearing in the survey quantum vale at. Seeing that an estatecomprising various lots of land was mortgaged, it would be strangeif the most important portion, namely, that on .which the factorystood, was excluded. As a matter of fact, the first and seconddefendants mortgaged not only the lots of land, but “ all the buildings,bungalows, machinery, fixtures, furniture, stores, tools, implements,cattle, and other the live <and dead stock on the said estate. ” Thethird respondent himself gave evidence very fairly at the inquiry.
The survey marked R1 is the survey referred to in the plaint indescribing lot (lg), and it shows the factory. It is, in fact, thesurvey of what is called the “ factory block ’ ’ in the case. Now,the third respondent’s evidence is this : “ I have no doubt that the
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1M2' lot depicted in B 1 refers to the lot Udawellewalawwewatta of 221>e Sampayo aores in my 'Fiscal’s transfer. Udawellewalawwewatta was trans-ferred subject to mortgage No. 308, so that my title to the landSuppmma- shown in B 1 is subject to this mortgage, and liable for sale againstniam Gketty me if the mortgage is good. ” There is no mistake here, for the thirdJayawardene respondent is possessed of great expert knowledge and knew what hewas talking about. I think it must be held that since lots (la) and (lb)cover lot (lp), the mortgage decree in effect ordered the sale of lot (lp).
A subsidiary, question was raised as to whether the factory blockwas in fact seised and sold by the Fiscal under the plaintiff’s writ.The Fiscal’s officer, who had acted in the matter of the execution,pointed' out to the surveyor, who went to survey the lands for thepurpose of the transfers in favour of the plaintiff, the land excludingthe factory block as the land .which was seized, and in Court he gaveevidence to the same effect. But I agree with Mr. Samarawickremethat a mistaken view on the part of the Fiscal’s officer as to theidentity of the property cannot invalidate the actual seizure, or thesubsequent sale, though it may form the basis of an applicationunder section 282 to set aside the sale on the ground of irregularitywhich has misled bidders and prejudiced, the sale. The Code laysdown the mode of seizure, and the fact of seizure must depend uponits observance, and not upon any particular belief of the ‘Fiscal’sofficer. Section 237 of the Code provides that the seizure of immov-ableproperty shall be made by awritten notice ^signedby the
Fiscal, and that the notice :shall specify, among , other things, thename, . situation, and boundaries of the land seized, and shall beproclaimed at some place, on or adjacent to such property by beat oftom-tom or other customary mode, and u copy of the notice shall beaffixed- by the Fiscal' to * conspicuous part of the property and ofthe Court-house and of the Fiscal's office. It is the Fiscal thateffects the seizure by means of the notice, and I take it that the Fiscal’sofficer – is only concerned with proclaiming the notice and affixingcopies of it as directed. In this case the seizure was affected by awritten notice which contained the required particulars of lots (la)and(lb),and the other directionsgiven bythe abovesection
were presumably followed. There was, therefore, a due seizure, ofthe factory block now in dispute, though the Fiscal’s officer may nothave known it. Moreover, the very Fiscal’s officer sent his “ seizurereport ” showing that the property as described in the decree wasseized. The notice of sale and the sale report of the Fiscal containedthe same descriptions. All this puts it beyond doubt that lots (la)and. (lb)which, as stated above,includethe factoryblock,
weredulyseized and sold under theplaintiff’swrit. Consequently
appeal No. 30a taken by the third and fourth respondents from thedecision of the District Judge .that those'lots were seized .and sold,,and that the third and 4th respondents obstructed the Fiscal’sofficer in placing, the plaintiff in possession thereof fails.
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The District Judge decided atl the questions of fact in favour ofthe plaintiff, but dismissed the application on a point of procedure.He considered that the provisions of section 325 of the Civil ProcedureCode were not applicable to plaintiff as execution purchaser,mul he would not exercise even the inherent* powers oF the Courtin respect of a party who obstructed the execution of the Court’sown orders, because the plaintiff had purported to apply For an orderunder section 325. This is taking a very narrow view of the Court’sduty and power. I think the form of application is quite sufficientto enable the District Judge to exercise whatever power he has inregard to the matter. Moreover, the District Judge is mistaken inthinkingthat the provisions of section 325 and the following
sectionsarenotavailable. Thoughthe penal part of these pro-
visions may not be capable of being enforced, the Court is entitledthereunder to cause the party resisting the execution of the writ ofpossession to he removed and the writ-holder to be put in possession.His attention does not appear to have been drawn to the Full Benchdecision in Silva v. De Mel. 1 I think the District Judge should havemade order specifically directing the plaintiff to be put in possessionof the “ factory block, ” in respect of which " the third, afid' fourthrespondents had resisted the Fiscal’s officer-. Now : that thequestionoftitlehas been decidedagainst the third and fourth
respondents,anyfurther resistancewould be offered by them
at their proper risk.
In my opinion the order dismissing the plaintiff's applicationshould be set aside, and the District Judge directed to make suchan order as last above indicated, and the third and fourth respond-ent’s appeal should be dismissed. The plaintiff should, I think,have the costs of the inquiry in the Court below and of this appeal.
Schneider J.—I agree.
1 (2915) 18 AT. L. R. 1$1.
SUPPRAMANIAM CHETTY v. JAYAWARDENE et al