Wijeyewardene v. Podisingho.
1939 Present: Abrahams CJ., Poyser S.P.J., Hearne, Keuneman,
and Nihill JJ.
WIJEYEWARDENE w. PODISINGHO et al.
84—D. C. Kalutara, 19,086.
Fiscal’s sale—Failure on part of Fiscal to demand payment of money—Sale notan absolute nullity—Sale may be set aside on application of judgment,debtor—Civil Procedure Code, ss. 226 and 344.
Failure on the part of the Fiscal to demand payment of the amountof the writ in accordance with section 226 of the Civil Procedure -Codedoes not render a Fiscal's sale a nullity so as to enable a person, who isnot a party to the execution proceedings, to attack the sale on thatground.
It is open to the judgment-debtor in such a case to make an applicationto set aside the sale under section 344 of the Civil Procedure Code, butmere proof of non-compliance with section 226 is not sufficient to avoidthe sale.
Hadjiar et al. v. Kuddoos et al. (37 N. L. R. 376) overruled.
’“T'HE plaintiff-respondent brought this action for declaration of title
1 to a property called Maharawilakumbura which belonged to oneR. Jayewardene. The plaintiff had obtained a mortgage decree in D. C.Kalutara, 15,805, u./^insi R. Jayewardene in respect of another landwhich was sold ana balance sum was due. In the meantime Jaye-wardene died and his administrator, the second defendant, was substituted.On December 5, 1932, the plaintiff obtained writ to recover the balance.It was issued to the Fiscal on December 16. The property was seizedand the seizure was registered on December 19. The sale took place onJanuary 7, 1933, and the plaintiff obtained on January 12, 1934, theFiscal’s transfer which was registered on January 30.
Pending these proceedings Jayewardene’s estate was administered in
C. Kalutara (testy.) 2,332 by the second defendant. On January 14,1933, he sold this property with the permission of Court by public auctionand it was purchased by the first defendant-appellant, who on April 7,1933, obtained a transfer which was registered on April 11, 1933.
The learned District Judge entered judgment for the plaintiff and thefirst defendant appealed. The appeal was listed before Maartensz andHearne JJ., who had doubts as to the correctness of the decision inHadjiar et al. v. Kuddoos et al.1 and referred the case to a Bench of fiveJudges.
H. V. Perera, K.C. (with him J. R. Jayawardana), for first defendant,appellant.—The transfer in favour of first defendant and its registrationare earlier than those of the plaintiff.
The Fiscal’s sale and transfer are void because the Fiscal has notcomplied with the provision contained in section 226 of the Civil ProcedureCode in that the Fiscal did not demand payment of the amount in thewrit. The only decision in favour of the appellant is Hadjiar et al. v.Kuddoos et al.1, which is exactly in point. The Fiscal must comply withall the provisions. The demand is an essential step and not merelyincidental. It may have arrested the rest of the proceedings.
1 (1935)' 37 N. L. R. 376.
Wijeyewardene v. Podisingho.
Under section 218 of the Civil Procedure Code power is given to thejudgment-creditor to sell the property of the debtor, but section 223provides how the seizure is to be effected through the. Fiscal. Anopportunity must be given even at the last moment for an effort toprevent the sale. It had been held in Bastian Pillai v. Anapillai1 thata sale without seizure was void.
Under section 256 the law requires an advertisement of the sale. Ifthere was no advertisement the sale would be void under section 282.These two sections should be read together. See ZJkku Amma v. PunchiUkku*. It was held in Keel and Others v. Asirawatharh and another*,that the provisions of section 763 were imperative. Section 347 of theCode corresponds to Order 21, rule 22 of the Indian Code. In RajagopalaAyyar v. Ramaniyachariarit was held that a sale without notice to thejudgment-debtor was a nullity. Section 289 deals with the date onwhich the transfer takes place and it must be considered with section 238.Under that section a private alienation is prohibited—see Gunasekera v.Rodrigo et a 1.", and Hendrick Singho v. Kalanis Appu‘.
The administrator is not the debtor.' He is an officer of the Courtwho has the right to sell the deceased’s property to pay his debts. SeeAndrishamy v. Silva et aV. It is a' sale by Court and not a privatealienation. The debtor lost his title Between the date of the Fiscal’s saleand transfer and therefore there can be no relation back to the date ofthe sale.
N. E. Weerasooria, K.C. (with him A. E. R. Co^ea and H. A. Chandra-sena); for plaintiff respondent.—Gunasekera v. Rodrigo et al. * is anauthority against the contention of the appellant, because it was heldthat section 289 of the Civil Procedure Code does affect the judgment-debtor and of persons claiming through him. The appellant claims titlethrough the judgment-debtor although the sale had taken place under„the authority of Court. Hendrick Singho v. Kalanis Appu* refers to acase where the seizure was not registered. In this case it was registered.It was held in The King v. Migel Kangany and others w that the provisionsof section 226 are directory only. The purpose of the demand is to givethe debtor an opportunity to pay up. Now the mortgage decree is noticeto pay it up. There has been no irregularity in this case. Further a mereirregularity is not sufficient to set aside a sale.
Counsel cited Deputy Fiscal, Kegalla.v. Tikiri Banda"; Kannangara v.Peries"; and Saibo v. Mohamadu “.
H. V. Perera, K.C. in reply.—The King v. Migel Kangany and others(supra) is a criminal case. Even in a money decree the debtor knows thata balance is due, but that is not a demand or notice. This is a case wherethe writ is issued for the first time. The irregularity is on the part of thej udgment-creditor who acts through the Fiscal.Cur. adv. vult.
(1901) 5 N. L. R. 165.» (1915) 18 N. R. R. 454.
(1929) 30 N. L. R. 305.'« (1929) 30 N. L. R. 468 at page 472.
(1935)4 C. L. W.128.»(1921) 23 N. If.R.SO.
* (1923)I.L.R. 47Mad.288.>«(1917) 4 C. W.R.127 al129.
3 (1929)30N.L. R.468 at472.»*(1928) 29 N. L.R. 443.
« (1921)23N.L. R.80.12(1928) 30 N. L.R.78 at 80.
23 (1937) 39 N. L. R. 522 at 524.
KJEUNEMAN J.—Wijeyewardetie v. Podisiiigho.21S
January 31, 1939. Keuneman J.—
This is an action for declaration of title to a property called Maharawila-kumbura. The property belonged to Mr. R. Jayewardene whp died in1932. The second defendant, was appointed administrator of his estate.
In execution of writ in case No. 15,805, D. C. Kalutara, against thesecond defendant administrator, the Fiscal seized the property in questionon December 16, 1932, and the seizure was registered on December 19,1932. The land was sold in execution on January 7, 1933, and purchasedby the plaintiff, but the Fiscal’s transfer was not issued till January 12,1934, and was registered on January 30, 1934.
On January 14, 1933, seven days after the Fiscal’s sale, the seconddefendant administrator had the same' property sold by public auction,and it was purchased by the first defendant, who obtained a notarialconveyance of the property. This sale was with the sanction of the Court,and under conditions of sale approved by the Court in testamentary caseNo. 2,332 D. C. Kalutara, and no fraud Ijas been proved in respect ofthis sale.
The learned District Judge entered judgment for the plaintiff, and thefirst defendant appealed. At the appeal before Maartensz and Hearne JJ.as at the trial in ’">e District Court, the appellant contended that the saleby the Fiscal was n. md void, as the officer entrusted with the executionof the writ did not require the judgment debtor to pay the amount of thewrit under section 226 of the Civil Procedure Code before proceeding toseize and sell the property. The learned Judges in appeal had doubts asto the correctness of an earlier decision in the case of Hadjiar et al. v.Kuddoos et al.1, and have referred the determination of the question to theFull Bench.
Subject to an argument that I shal^ deal with at the end of this judg-ment, the Fiscal’s transfer related back to January 7, 1933, the date ofthe Fiscal’s sale, and therefore took precedence over the later deed bythe administrator. Counsel for the first defendant argued, however, thatthe Fiscal’s seizure, sale and transfer were null and void owing to thefailure of the FiscaFs Officer to make demand under section 226 of theCivil Procedure Code which runs as follows : —
“ Upon receiving the writ, the Fiscal or his deputy or other officershall within forty-eight hours after delivery to him of the same . . .repair to his (the debtor’s) dwelling-house or place of residence andthere require him, if present, to pay the amount of the writ.”
In Hadjiar et al. v. Kuddoos et al. (supra) which was decided by twoJudges, Koch J. emphasized the use of the word “ shall ” in the section,and thought that the intention of the Legislature was to regard a demandby the Fiscal as essential. He continued : “If therefore the Fiscal hasfailed in this duty and this has been established to the satisfaction of theCourt, I am of opinion that the sale held under the writ is null and void ”.He further stated that “ the default of the Fiscal amounted to more thana mere irregularity for it rendered the sale null and void ”.
It is necessary to point out that this case is not exactly parallel to thepresent case. In the case decided by Koch J. an application to set aside
i (1935) 37 N. L. R. 376.
220KEUNEMAN J.—Wijeyewardene v. Podisingho.
the sale was made in the same action in which execution issued, andKoch J. expressly held that such an application could be made undersection 344 of the Civil Procedure Code. It is dear therefore that thesewere proceedings between parties to the action, including the purchaser atthe Fiscal’s sale in that category. The decision therefore does not dealwith the question whether the sale was “ null and void ” for all purposes.
Moreover the authority of this case is weakened in view of two othercases which have been cited to us. In The King v. Migel Kangany andothers', which was a criminal proceeding for unlawful assembly andrioting, it was argued that the accused was engaged in a lawful enterprise,viz., resisting the Fiscal’s Officer in enforcing execution, in that theFiscal’s Officer had not complied with the provisions of section 226 of theCivil Procedure Code. Shaw J. said, “ section 226 in my opinion doesnot render an execution invalid, if it is executed beyond the time specifiedafter delivery of the writ to the Fiscal. That section in my opinion, ismerely an instruction to the Fiscal as to the manner in which he shouldproceed when levying execution. It is intended to be directory onlyand it is not, in my opinion, compulsory to the effect that the writ wouldbecome invalid if not executed within forty-eight hours of delivery to theFiscal Koch J. in Hadjiar et al. v. Kuddoos et al. (supra) accepted thisdictum of Shaw J. but held that although the time limit was not com-pulsory, the necessity for the demand itself goes to the root of the interestsof the judgment-debtor. I find some difficulty in following this distinc-tion.
Again in a later case Saibo v. Mohamadu", Abrahams C.J. held thatthe case decided by Koch J. was “ no authority for saying that the seizurewas invalid when no demand was made, if the defendant was aware of theseizure …. The defendant cannot claim the benefit of section226, when he is not injured by mere non-compliance with it ”.
Under section 226 there can be no doubt that a duty is placed on theFiscal to repair to the dwelling-house or place of residence of the debtor.If the debtor is present the Fiscal has to make demand, but if the debtoris absent no further duty is imposed on the Fiscal in this connection.
If the Fiscal fails in the performance of the duty imposed, I think it isequally clear that it is open to the defendant to make an application toset aside the sale under section 344 of the Civil Procedure Code. I mayadd. that I am of opinion that mere proof of non-compliance with section226 without more is not sufficient to enable the defendant to succeed.
In my opinion, however, it is not correct to say that where there hasbeen a failure on the part of the Fiscal to comply with the duty imposedon him under section 226 of the Civil Procedure Code, the subsequentproceedings in execution are null and void for all purposes. No doubtunder the section a peremptory direction is given to the Fiscal, but nosection of the Code invalidates all subsequent proceedings^ where theFiscal fails in his duty. In this connection there is an interesting judg-ment by Drieberg A.J. in a criminal case where the accused was chargedwith resisting a Fiscal’s Officer in executing a writ of possession issuedunder a partition decree. In that case section 347 of the Civil ProcedureCode was in question. That section provides that where more than one
1 4 C. W. R. 127.* <1937) 39 N. L. R. 522.
KEUNEMAN J.—Wijeyewardene v. Podisingho.
year has elapsed between the date of the decree and the application forits execution, the Court shall cause the petition to be served on thejudgment-debtor, and it was argued that writ issued without such notice-was void for want of jurisdiction and an illegal process, which the appellantwas justified in resisting. But Drieberg A.J. rejected this argument,,saying, “ Notice is required in the interests of the parties against whomexecution is sought, and the absence of notice makes the executionproceedings void as against them and not merely voidable, but I do notthink they can be regarded as void against persons not parties to theaction and who are not entitled to notice ”,
With deference I think myself that the use of the words “void” and“ voidable ” in this connection is misleading. It is possible that in aproceeding under section 344 of the Code the Court may regard a failureto comply with the requirements of any section relating to execution asof such fundamental importance that mere proof of that fact is sufficientto entitle a party to have all the proceedings set aside, and I think thatwhere the word “ void ” is used, it is used in this sense, and that the word“ voidable ” implies that it is incumbent on the party seeking to set aside-the sale, to establish other matters in addition to the fact of non-com-pliance with any section relating to execution.
As regards parties to the action in which a decree is passed, it is the-policy of the law that all questions relating to the execution of the decreeshall be determined by order of the Court executing the decree and notby separate action, vide section 344 of the Code. Has thp- Legislaturereserved to persons not parties to the action the right to raise suchquestions in separate actions ? In my opinion it is not possible to come-to' such a conclusion. It is certainly the policy of the Code to provide anumber of safeguards to the judgment-debtor, and he is the person whomay be damnified by non-compliance with the terms of the various:sections, and where the judgment-debtor does not or cannot claim a rightto raise such questions, I do not think we should extend this right to thirdparties who are not parties to the action.
Several authorities on other sections relating to execution were citedbefore us and it is necessary to consider them in this connection. InKeel and others v. Asirwatham and another Soertsz A.J. considered the-effect of failure to comply with the terms of section 763, which providesthat in the case of an application for execution of a decree which is;appealed against, the judgment-debtor shall be made respondent. It isto be noted that the question arose in an appeal from an order settingaside a sale in the action in which execution issued. Soertsz A.J. quotedStroud’s Judicial Dictionary in connection with the word “ shall ” asfollows: “ Whenever a statute declares that a thing shall be done, thenatural and proper meaning is that a peremptory mandate is enjoined ”,.and held that the failure to give notice vitiated the sale. The decision inthis case was based partly on the case of Omer v. Fernando et aU, whichin its turn purports to follow the Privy Council decision in Malkarjun v.Narhari and another “, in which the meaning of the word “ nullity ” wasdiscussed.
1 4 C. L. W. 128.»16 N. L. B. 135.
* I. L. B. 25 Bom. 337.
KEUNEMAN J.—Wijeyewardene v. Podisingho.
Lord Hobhouse there said : —
“ Other decisions are cited in which proper notices have not beenserved after decree, but on examining them they all appear to be casesin which proceedings have been taken either under section 311 of theCode or by independent suit, within the year allowed for setting asidea sale. In such cases the necessity for distinguishing between irregu-larity and nullity does not arise, and general assertions of the invalidityof such sales, quite appropriate to the case in which and the purposefor which they are used, are only misleading when separated from theircontext and applied to a case in which the distinction between irregu-larity and nullity is the cardinal point.”
“ It is then necessary for the plaintiffs to set aside the sale in order toclear the ground for redemption of the mortgage. There can be noquestion that omission to 'Serve notice on the legal representative is aserious irregularity, sufficient by itself to entitle the plaintiff to vacatethe sale. But there may be defences to such a proceeding, and justicecannot be done unless those defences are examined by legal methods.It may be that the plaintiff could unite a suit to set aside with one toredeem, and that the defendant’s anticipatory plea of misjoinderwould if tried have been overruled. But that need not be discussed,because their Lordships think it is beyond reasonable doubt that thisis not a suit to set aside the sale.”
I may add however that the question whether property sold after avesting order had been made under the Insolvent Debtor’s Act of 1848,without notice to the official assignee was good, has subsequently been• decided by the Privy Council in Raghunath Das v. Sundara Das Forresons given their Lordships decided that notice under Order 21 rule 22was necessary in order that the Court should obtain jurisdiction to sellthe property. “ In the first place the property having passed to theofficial assignee, it was^wrong to allow the sale to proceed at all. Thejudgment-creditors had no charge on the land and the Court could notproperly give them such a charge at the expense of the other creditors ofthe insolvents. In the second place no proper steps had been taken tobring the official assignee before the Court and obtain an order bindingon him, and accordingly he was not bound by anything which was done.In the third place the judgment-debtors had at the time of the sale noright, title, or interest which could be sold or vested in the purchaser andconsequently the respondents acquired no title to the property ”. Thecase in I. L. R. 25 Bom. was distinguished, as there a notice had beenserved on the wrong party, but the Court had held in the sameproceedings that it was the correct party.
A similar principle has been applied in India to the case where propertyattached is sold after the death of the judgment-debtor—vide RajogopalaAiyar v. Ramunugachariyas. But it is clear that special considerationsapply to that case, in particular the necessity of joining new parties onwhom the title of the judgment-debtor has devolved by operation of law.
» I. L. R. 42-Cal. 72.
= I. L. R. 47 Mad. 288.
KEUNEMAN J.—Wijeyewardene v. Podisingho.
It may be pointed out that the decision of the Privy Council does not reston the ground merely of the failure to comply with the terms of the section,but is based on the other considerations I have mentioned.
We have also been referred to the case of Bastianpillai v. Anapillai1,where the right of a plaintiff whose title arose under at Fiscal’s conveyancewas successfully disputed, on the ground that what was sold by the Fiscalwas not what had been seized by him. Bonser C. J. followed the judgmentin Mahadeo Dubey v. Bhola Nath Dichit * where it was held that a regularlyperfected attachment is an essential preliminary to sales in execution otsimple decrees for money, and where there has been no such attachmentany sale which may have taken place is not simply voidable but dejacto void. It may be noted that the Indian decision was given in aproceeding for setting aside the sale, and not in a separate action. ButBonser C.J. rests his judgment on the fact that “ the Fiscal is empoweredto seize and sell the debtor’s property, the Code prescribes what seizuremeans, and that he has no power to sell property that he has not seized,and that property as to which the provisions of the Code as to seizurehave not been followed cannot be said to have been seized In this casewhat was seized was the property itself, and not. the mortgage debt uponit which was subsequently sold.
I think however it is possible to distinguish this case from the presentone. Bonser C.J. appears to lay emphasis on section 255 of the Code,which may be regarded as limiting the power of the Fiscal to selling onlyproperty which he has seized, and it is possible to argue that the sale ofproperty which has not been seized, is no sale under the Code, and that anact done by the Fiscal which the Code did not empower him to do, is anullity. I do not think that the same argument is applicable to anomission on the part of the Fiscal to do something which the Code enjoins.
On a consideration of all these authorities, I am of opinion that the factthat no demand was made by the Fiscal under section 226 of the Codedoes not deprive the Court of jurisdiction and' render the seizure and salethereafter a nullity, and that it is not open to any person to seek to attackthe seizure and sale on that ground in a separate action.
One other matter was argued before us, which was not referred to us,viz., that the doctrine of relation back under section 289 of the CivilProcedure Code cannot have effect where the judgment debtor hasbetween the date of the Fiscal’s sale and the Fiscal’s transfer been deprivedof his title by a sale which is not a private alienation. In my opinionsuch an interpretation would render section 289 entirely nugatory, andI agree with two decisions to the contrary, viz., Juan Appu v. Weerasena*and Aserappa v. Weeratunga et aV, decided by a Bench of three Judges.I hold against the appellant on this point.
The appeal is dismissed with costs.
Abrahams C.J.—I agree.
Poyser S.P.J.—I agree.
Hearne J.—I agree.
Nihtli, J.— I agree.
20 N. L. R. 30.
14 ,V. L. R. 417.
' 5 N. h. R. 31.
* I. L. R. o All. 80.
WIJEYEWARDENE v. PODISINGHO et al