( 468 )
Present: Wood Renton C.J. and Shaw J.UPARIS v. SUBASINGHE et al.
89—D. C. (Inty.) Oalle, 11,573.
Fiscal's sale—Payment of money due under writ to judgment-creditor'sproctorbeforesale—PaymentcommunicatedtoFiscal—Fiscal's
letter authorizing stay of sale not received by officer who conductedthe saletill aftersale—Power ofFiscal to staysalewithout order of
Court—Civil Procedure Code, ss. 226, 842, 848.
A Fiscal has no legal power, to stay a sale otherwise than uponan order of Court. He may adjourn the sale.
It is no doubt customary for Fiscals or their officers to stay salesupon the application of parties to proceedings, but they do so attheir own risk. The safe course for a Fiscal to whom any suchapplicationis madeis to adjournthe sale andreport the matter to
the Court itself.
A judgment-debtor moved to have a Fiscal’s sale set aside, onthe ground that he had satisfiedthe decree byfullpayment to the
judgment-creditor’s proctor two days before tbe sale took place,and that the fact of that payment had been duly communicatedto the Fiscal with a request to stay the sale. It waB only after thesale that the Fiscal’s letter authorising a stay of the sale wasreceived by the Fiscal’s officer who conducted the sale.
Held, that in the absence of fraud on the part of the purchaserthe sale cannot be set aside.
rjl HE facts are set out in the judgment.
W. Jayewardene, for purchaser, appellant.
Bawa, K.G., for plaintiff, respondent.
May 29, 1917. Wood Renton C.J.—
On July 8, 1916, three lots of land called Madangahawatta weresold by the Fiscal’s officer in execution of a decree for pro ratdcosts due by the plaintiff and the fourteenth to the eighteenthdefendants. On August 3,1916, these parties filed petitions
praying for an order to set aside the sale, on the grounds that theyhad satisfied the decree by full payment to the judgment-creditor’sproctor two days before the sale took place, and that the fact of thatpayment had been duly communicated to the Fiscal, with a requestto stay the sale. The purchaser of two of the lots in question.consented 'to the sale being cancelled. The purchaser of the thirdlot showed cause against the application, and the learned DistrictJudge, after hearing evidence, set the sale aside. He appeals againstthat order.
The ground of the District Judge’s decision is that the appellantwas fully aware that payment had been made, and, in view of thedecisions of this Court in GoonetUleke vl Qoonetilleke 1 and Appuhamyv. Adrian,* and cp. Hamtdu v. Kirihamy,3 there can be np doubtbut that that ruling would be correct if the evidence showed conducton the part of the appellant that could be regarded as equivalentto fraud. I do not think, however, that the facts of the presentcase are capable of supporting a finding to that effect. On July 6the whole amount of the judgment-debt was paid to the execution-creditor’s proctor. The appellant. is the father of the execution-creditor, whose name, by an inexplicable error on the part of theFiscal’s Arachchi, was at first put down as that of the purchaser atthe execution sale. This mistake was subsequently rectified bythe substitution of the name of the real purchaser, the appellanthimself. The appellant was a party to the partition proceedingsin which the judgment-debt for pro ratd costs was incurred. Theproctor was.not examined as a witness at the trial. These circum-stances would no doubt point to the conclusion that the execution-creditor must have been aware of the fact of payment, and theymight have constituted valuable corroboration of other evidenceshowing that the appellant also was aware that the judgment-debthad been satisfied. But the only other facts that can be reliedupon for that purpose are the under-value at which the propertyvfas sold, namely Rs. 59, as compared with the alleged value ofRs. 2,000, and the circumstance that before the sale the judgment-debtors who were at the. spot informed the Fiscal's Arachchi, inthe appellant’s presence, that the money had been paid, and that aletter staying the sale had been sent from the Fiscal’s office. Thisevidence, does not affirmatively prove that the appellant heardwhat the judgment-debtors said, although it is no doubt highlyprobable that he did so. It was only after the sale had been
» (1912) 15 N. L. R. 272.a (M14) 17 N. L. R. 392.
3 (1916) 19 N. L. R. 216.
( 470 )
concluded that the judgment-debtor, by whom actually payment hadbeen made, arrived with the Fiscal's letter authorizing a stay of thesale. Even if we assume that the appellant did hear the statementof the judgment-debtors to the Fiscal’s Arachchi prior to the sale,it does not, in my opinion, necessarily result from that fact that hewas aware that payment had been made. I do not think that theevidence, which I have just' summarized, is sufficient to bring homefraud to the appellant within the meaning of the cases abovementioned.
/ ^The question then arises whether, in' the absence of fraud, the
sale can be set aside. To that question the answer, must, in my
opinion, be in the negative. The trend of judicial decisions in thiB
Colony distinctly establishes the proposition' which is supported
by the language of section^ 342 and 343 'of the Civil Procedure Code,
that a Fiscal- has no legal power to stay a sale otherwise than upon
an order of Court. He may adjourn the sale. It is no doubt
customary (see Saparamadu Appuhamy v. Appuhamy1) for Fiscals
or their officers to stay sales upon the application of parties to the
proceedings, but they do so at their own risk. The safe course
for a Fiscal to whom any such application is made is to adjourn the
sale and report the matter to the Court itself. The case of Silva v.
Rawter,2 although it turned directly on the claim sections in the
Civil Procedure Code, is, I think, an authority for the proposition
that the Fiscal has no power to stay execution without an order of
the Court, and it has been subsequently interpreted in that 6ense.
See 436 C. R. Negombo, 19,074," and 321 C. R. Matara, 7,886> It
appears to me that this is a reasonable construction of the law. It
would be highly inconvenient if the right of Fiscals or their officers
to stay a sale of their own authority were recognized. Section 226
of the Civil Procedure Code shows that, if payment is not made to
the Fiscal or his officer by the judgment-debtor on the original
demand before execution of the writ is proceeded with, the seizure
and sale must follow so far as the .Fiscal or his officer is concerned.
The expression “ by seizure, and, if necessary, by sale ’/ in Form
No. 43 in the schedule to the Civil Procedure Code cannot be taken
as modifying the clear language of section 226. The direction in
that section that the Fiscal shall “ forthwith proceed to seize and
sell ’ ’ is peremptory, subject to the power of adjournment conferred
by section 342.
On these grounds I would set aside the order under appeal,and direct judgment to be entered up confirming the sale. Theappellant is entitled to his costs in the District Court and alsoof this appeal.
Shaw J.—I agree.
» (1909) 2 S. C. D. 76.
* (1906) 10 N. L. R. 66.
-* S. C. Min. Jan. 21, 1918,* S. C. Min. Nov. 8, 1914.