080-NLR-NLR-V-22-VELUPILLAI-v.-MARIMUTTU-et-al.pdf
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Present: Schneider A. J.
VELUPILLAI v. MARIMUTTU et at.
203—C. B. BatUcaloa, 1,475.
Seizure not registered—Sale by judgment-debtor after Fiscal's sale—’ Registration of deed before Fiscal's conveyance was obtained—
Civil Procedure Code, as. 238 and 289.
Under a writ of execution issued against C the land in questionwas sold in 1917. Fiscal’s transfer D 1 was obtained in May, 1920,and was registered in May. C in July, 1919, transferred the landto plaintiff, and this deed was registered in February, 1920. Theseizure under which the sale in execution took place was notregistered under section 238 of the Civil Procedure Code.
Held, that plaintiff had superior title.t j 'iHE facts appear from the* judgment.
Croos-Dabrera, for appellants.—The Fiscal's conveyance has aretrospective effect and revertB back to the date of sale. Therespondent’s deed, though registered earlier, cannot prevail overthe subsequent Fiscal’s conveyance. Aserappa v. Weeratunga;1Juan Appa v. Weerasena ;s and Noordeen v. Ukkuhamy? There isno question of registration here. The deed on which the appellantrelies was subsequent in execution as well as registration, but bythe operation of section 289 the appellants became vested with titleas from the date* of the Fiscal’s sale, which was prior to the date ofthe sale to the respondent. A Fiscal’s sale will be rendered abortiveif between the date of the seizure and the registration the judgment-debtor transfers the property to a third party.
{1911) It N. L. R. 417.» {1917) 20 JV. L. R. 30.
• (1918) 5 C. W, ft. 93.
1921.
1
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1921,
Velupiilai v.MarimuUu
J,Joseph, for respondent.—This case is on all fours with Hen-drick v. Been,1 and iB concluded by that authority. The case ofAserappa v. Weeratunga2 has no application here. Here there is nocompetition between two Fiscal’s conveyances. The question hereis whether by reason of the failure of the registration of the Fiscal’sseizure the duly registered private alienation which took place afterthe Fiscal’s sale but before the Fiscal’s conveyance prevails overthe latter. It is submitted that the private alienation prevails.The object of the registration required by sections 237 and 238is to give notice to an intending purchaser by private treaty ofthe fact of the Fiscal’s seizure. The words of section 238 are“ any private alienation of the property seized …. afterthe seizure and before …. the sale of conveyance of theproperty seized.” Here the private alienation took place betweenthe Fiscal’s sale and conveyance. A Fiscal’s sale is not renderedabortive by a private alienation taking place between the dateof the seizure and the registration, provided the registration takesplace within two weeks as provided by section 237. Fernando v.Fernando.z
Cur. ado. wit.
February 16, 1921. Schneider A.J.—
The fact as now ascertained are as follows. The owner of the landwas Chellappah. Under a writ issued against him the land was soldin October, 1917. The Fiscal’s transfer (D 1) is dated May, 1920,and was registered on the same day. The defendants claim titlethrough this sale in execution. The plaintiff claims under a deedexecuted by Chellappah in July, 1919 (P 1), and registered inFebruary, 1920. It is admitted that the seizure under which thesale in execution took place was not registered under section 238 ofthe Civil Procedure Code. The question is, Which conveyed thesuperior title, the Fiscal’s transfer (D 1) or the deed (P 1) ? Thefacts in this case are not distinguishable from those in the caseof Hendrick v. Been} It was not disputed by counsel for theappellants (defendants) that if the decision in that case is to befollowed, the judgment of the learned Commissioner of Bequests iscorrect, and the appeal fails. But . he contended that the principleupon which Hendrick v. Been1 was decided had been over-ruled bythe decision of the cases of Aserappa v. Weeratunga2 decided by aFull Bench of this Court; Juan Appu v. Weerasena4 decided byWood Benton C.J. and Shaw J.; and Noordeenv. Ukhuhamy* decidedalso by a Full Bench. I am unable to agree with Jus contention.
What was decided in Hendrick v. Been1 was that an alienation bya judgment-debtor subsequent to a sale in execution but prior to aconveyance by the Fiscal operated to convey a title superior to that
1 {1916) 3 C. W. R. 205.3 < 1969) 9 A'. L. R. L
> (1911) 24 N. L. R. 417.4 {1917) 20 N. L. R. 30.
6 {1918} 5 C. W. R. 93.
1921:.
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purported to be oonveyed by the Fiscal, provided there had been noregistration of the seizure, the reason for this being that in theabsence of other considerations the title deed prior in date shouldprevail, without hindrance by the fiction created by section 289 ofthe Procedure Code, that upon the execution of the Fiscal’s con*veyance the legal estate shall be deemed to have been vested asfrom the date of the sale. The point deoided by the Fall Bench inAserappa v. Weeratunga1 was quite different, and did not touch thepoint involved in this case. It was there held that in the case oftwo conveyances by the Fiscal competing for priority on the groundof registration under the Registration of Deeds Ordinance, thedates of the execution of the conveyances should alone be takeninto consideration without regard to thedates of the sales themselves.Both the sales in that case followed upon seizures which had beenregistered. That decision, therefore, does not apply. In JuanAppu v. Weerasena 8 the Judges were of opinion that it was absolutelyconcluded by the Full Bench decision in Aserappa v. Weeratunga.1They were invited to consider the effect of the decision in Hendrick v.Deen,a but declined to do so, regarding it as an attempt to raise anobjection which came too late. In Noordeen v. Ukkuhamy 4 the pointor decision was a question concerned with prescriptive possession.Incidentally, a competition between a conveyance by a judgment-debtor subsequent in date of execution but prior in date of regis-traton to a Fiscal’s conveyance, and that Fiscal’s conveyance hadto be considered, and it was held that the private conveyance pre-vailed. That decision, therefore, does not help the appellants. Iamcontent to follow the decision in Hendrick v.Deen? and to hold thatthe plaintiff has the better title, inasmuchas his deed is prior in dateof execution to the Fiscal’s transfer relied upon by the defendants,the seizure not having been registered.. If I may say so, I agree withall the reasons given by my brother De Sampayo in that case.His view that the registration required by sections 237 and 238 wasintended to serve the same purpose as the registration of a deedunder the Land Registration Ordinance was that which had beentaken by Wendt J. in the case of Fernando v. Fernando.* In thatcase Lascelles C.J. expressed the opinion that the purchaser at aFiscal’s sale should be deemed as coming under the designation of aperson having a claim enforceable under the seizure. The provisionfor the registration of the seizure was, therefore, intended forthe protection not only of the purchaser at the Fiscal’s sale, but alsoof a purchaser from the judgment-debtor.
Having regard to the provisions and the language of sections 238,237, and 238 of the Civil Procedure Code, it seems to me that it wasintended by them to declare within what limits a private alienation
SOHNBIDBB
A.J.
VelupiUai e.MarirmMu
* (1911) 14 N. L. S. 417.* (1916) 3 C. W. B. 205.
(1917) 20 N. L. B. 30.* (1918) 5 O. TT..5. 93.
5 (1909) 9DLL.B. 1.
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1921.
Schhbtobb
AJ,
Vehtpillai v.Marimuitu
of property after a seizure was forbidden by the law. If that be thecorrect view, it necessarily follows that private alienation, exceptas so forbidden^ is permitted. It should also be noticed thatsections 236 and 238 do not declare the private alienation absolutelyvoid, but only “ void as against all claims enforceable under theseizure.” If that is the limited effect of an alienation, even wherethe seizure has been registered, it is hard to believe that it is the lawthat any private sale subsequent to a sale by the Fiscal is absolutelyvoid. The learned Commissioner of Bequests has reasoned out hisconclusion on the law in a judgment which does him great credit.
I would for the reasons given by me dismiss the appeal, with costs.
Appeal diemieeed.