. The provision of section 344 of the Code, upon which also theappellant relies, is more useful for his purpose. It is true that thatsection enacts no substantive law, but provides, as a matter ofprocedure, that all questions relating to the execution of the decreeshall be determined in the same proceedings and not by separateaction, and for the, grounds of an application thereunder we must.look elsewhere. It has been held by Wood Benton J. in Goone-tilleke, v. GoonetiUeke 1 that a fraud in the conducting of a sale is oneof such grounds. I am willing to take the expression “ fraud in theconducting of the sale ” in a broad sense, and to regard it as includingany act of positives misrepresentation or illegal omission, wherebya purchaser is induced to bid for and purchase the property to hisprejudice. The question then is, whether there was such fraud inthis case. The District Judge refused to entertain the applicationas based on section 344, because he thought a purchaser in executionwas not a “ party to the action ” within the meaning of that section.Here the District Judge is in error, and I need only refer to Carpen
1 (1912) 15 N. L. R. 272.
( 140 )
Oh SamfayoJ.
Ahamado«. Fernanda
Chetty v. Hamidu 1 and Perera v. Abeyratna * and the authoritiestherein cited.. {The matter, therefore, really turns on the questionof fact, which I have indicated.
In my opinion the materials in the case do not amount to proofof fraud. The only allegation in the appellant’s petition on thispoint is that the plaintiff was well aware that the defendant “ hadno saleable interest in the southern portion at the time of theexecution of the mortgage. ” Nor is this, insufficient allegationsupplemented by evidence at the inquiry, except by the admissionby the plaintiff’s proctor that “ his client was aware, when the landwas put up for sale, that the southern block did not belong to hisjudgment-debtor. ”. No act of actual misrepresentation by whichthe appellant was misled is even alleged against the plaintiff, but it|is contended that he ought to have warned the bidders at the sale,or otherwise prevented the inclusion of the southern portion in thesale, and that his silence or inaction amounts to fraud. I am unableto agree with this contention. The defendant mortgaged to himthe entire land in 1912, and there is nothing to show that at thattime, or at the time of the action, which was brought in 1917, or atthe date of the decree he knew of any defect in the defendant’s title.In the plaint he described the mortgaged property, as he should do,according to the particulars given in the bond, and the decree ofCourt and the writ necessarily contained the same descriptions.
– The plaintiff had no further obligation in that regard, and couldnot control the execution proceedings. He might, of course, havewithdrawn the writ, or announced to the bidders that his execution-debtor’s title was defective, but I am unable to characterize asfraudulent his failure to act up to that counsel of perfection. Anyidea of fraud is further negatived by the fact that he himself bidwithin Bs. 5 of the bid for which the property was knocked down tothe appellant. He took the same risk as the appellant, and no less,and I do not think that the appellant, to whom the principle ofcaveat em-ptor applied, has any reason to complain against the con-duct of the plaintiff. Faced with this result of the proceedings asthey stand, Mr. Bawa wished to have a further opportunity to proveother facts. What these other facts may be we do not know.But it is clear that the appellant’s case must stand or fall on thematerials which he himself put before the Court in support of theapplication. When fraud is alleged, .it must be proved by cogentevidence; and in the absence of such evidence, I am not disposed toallow the plaintiff to be troubled a second time on a question offraud.
In my opinion the appeal should be dismissed, with costs.
Ennis A.C.J.—I agree.
Appeal dismissed.• (1912) IS N. L. R. 414
» (1909) 1 Our. L. S. 166