Zahan 9. Fernando.
1931Present: Garvin S.P.J. and Maartensz A.J.
ZAHAN u. FERNANDO.
101—D. C. (Inty.) Colombo, 37,745.
Mortgagedecree—Conditions of sale—Breachof condition bypurchaser—*
Technical irregularity—Power of Court to grant relief.
Thedirections which aCourt gives for theconduct ofa saleinexecution
of a hypothecary decree and the conditions of sale are intended tosecurethe interests of theparties to theaction andalso thepurchaser
at the sale.
TheCourt is entitledtogrant relief ina case inwhichitwould; be
iuequitable to penalize * the purchaser for the breach of a condition ofsale, which may be regarded as a mere technicality.
^fi^PPEAL from an order of the District Judge of Colombo.
N. E. Weerasooria, for appellant.
H. V. Perera, for respondent.
GARV1K S.KJ.—Zahati n. t'rrnawio.
December 17, 1931. Garvin S.P.J.—
By the hypothecary decree which was entered in this case, certainpremises which were mortgaged to the plaintiff were directed by the Courtto be sold by Mr. A. C. Koelmeyer, Licensed Auctioneer, and the Salewas to be by public auction. Certain other directions were given inthe decree, and, thereafter, the Court approved certain conditionsupon which the sale was to take place. One of the conditions wasthat a certain percentage was to be deposited at the time of the sale,and then followed condition^, which is in these terms:—” The remainderof the purchase money shall be paid within one month from the dateof the sale to the District Court of Colombo.” This sale took placeon October 14, 1930. On November 14 of the same year, the purchaserbrought the remainder of the purchase money into Court and movedthat a conveyance be issued in his favour. This application was opposed,and the principal ground of opposition would seem to have been thatthe purchaser was a day late with his deposit. Evidence was, however,led, the tendency of which was to explain and to purge the supposed ■default as the foundation for the further application to the Court toaccept the balance of the purchase money and direct that a conveyanceshould be issued notwithstanding that there happened to be a few hours’delay in bringing that balance into Court. The learned District Judge,having considered the circumstances of the case, came to the conclusion•that it was competent for him to give the relief and he did so. Hedirected that the sale be confirmed and that a conveyance be issued tothe purchaser.
The defendant has appealed from this judgment, and two pointshave been argued at considerable length upon which our decisionis invited. It was contended by the appellant that under no circum-stances had the Court jurisdiction to give any relief from the conditionwhich it had itself imposed, notwithstanding that, in that view, thepurchaser was involved as a consequence in the forfeiture of the depositalready made by him. On the other hand, it was argued in answer tothis objection that the Court was free when it thought the interests ofjustice demanded it to give such relief and confirm the sale and issuethe necessary conveyance. It was further argued that the parties hadproceeded upon a misapprehension in that they assumed that the pur-chaser was out of time, and that in point of fact under the conditionsof the sale, he was in time and would have been in time if he broughtthe balance purchase money into Court at any time on November 14-as he did. It was urged in support of the first of these objections that thedirections which a Court gives as to the manner and conditions uponwhich a sale in execution of a hypothecary decree should be carried outare in effect a part of the decree and that the Court may not vary orgive any relief from any of the directions so given by the general rule that aCourt may not alter its own decree.
The fact that the directions which the Court gives may be embodiedin the decree does not, in my opinion, constitute such directions a decreein the ordinary sense in which that term is rightly understood. A decreeis defined to be “ the formal expression of an adjudication upon any
GARVIN S.P.J.—Zahan v. Fernando.
right, claim, or defence set up in a civil Court when such adjudicationso far as it regards the Court expressing i.t decides the action or appealIt is such a decree that the Court may not vary, except in so far as it ispermitted to do so by the provisions of section 289 of the Civil ProcedureCode, which is in effect limited to the correction of any clerical or arith-metical error. Moreover, section 12 of the Mortgage Ordinance, No. 21of 1927, while vesting in the Court the power to give directions, empowersit when giving those directions to do so by inserting them in the decreeor to give them subsequently after the entering up of the decree. Theobjection in .so far as it is based upon the ground that this is a decree isnot, in my judgment, one that can be upheld. In point of fact, in thiscase, the directions with which we are here* concerned were not givenin the decree. They were given after the decree.
It was then argued that these conditions must be regarded as partof a contract of sale and that the Court could not give relief from a provi-sion fixing a limit of time within which the purchaser was to completehis purchase by bringing in the balance purchase money, proceedingexactly in the same way as it would proceed if the application had beenmade to it by one of two parties to such a contract for relief from itsprovisions. 1 am unable to take the view that this is merely a contractof such a nature, nor that the defendant is in any sense a party to thecontract. This is a sale in execution by the Court of its own decree.The directions which it gives for the conduct and sale are its own unlikeother sales in execution to which the provisions of section 255 and thosesections which follow are applicable. There are here no statutorydirections by which the Court is bound and from which it cannot giverelief. The whole conduct of the sale is in its own hands. The directionsand conditions which it gives presumably are intended to secure theinterests of the parties to the action and also the person who may happento be the purchaser at the sale in execution. Ordinarily, a Court wouldnot sanction any departure from any direction which it ha6 given orfrom the conditions which it has imposed. But I am aware of no rule,since there is no legislative enactment by which it is bound in so acting,which prevents it giving relief in a case in which it would be manifestlyinequitable to penalize the purchaser for a breach of a condition whichin the circumstances of this case may be regarded as a mere technicality.Throughout the proceedings in the Court below, as I have already .said,the view appears to have been taken' that by “ month ” was meant acalendar month. It would seem that at the hearing it was assumedthat that calendar month expired on November 13. The purchaser .stated in his affidavit that he interpreted the month as running fromOctober 14 till the 14th of. the following month, and to put his case atthe very lowest there can be no doubt that he had reason for thinkingthat a calendar month would be computed as running from the date atwhich it commenced to the day bearing the corresponding number inthe following month. If that be correct he was in time.
This consideration brings me to the second of the two points whichwe have been invited to consider, but, in the view I have, taken of thiscase, it seems unnecessary to decide what is a somewhat difficult question.
Dmgm Amina t>. Afudtyana*.
If I have dealt with it so far, it is for the purpose of emphasizing thevery great hardship which would result if the Court refused at thisstage of the proceedings to confirm the sale and direct that the conveyancebe issued to the purchaser.
For the reasons already given, I think that this is a case in which theCourt is entitled in its discretion to accept the balance purchase moneyand direct the issue of the conveyance, even if in law the purchaser isout of time by a few hours.
The order of the learned District Judge Mill stand affirmed. Theappeal is dismissed with costs.
Maartexsz A.J.—I agree.
ZAHAN v. FERNANDO