076-NLR-NLR-V-31-ANNAMALAI-CHETTY-v.-LUDUVICI.pdf
( 285 )
Present: Fisher C.J. and Driebevg J.
ANNAMALAI CHETTY v. LUDOVICI.
151—D. C. (Inty.) Kandy, 1,S04.
Auction sale—Property of insolvent—Higher offer after sale—Power ofCourt to refuse confirmation.
Where property of an insolvent estate is sold by auction, ilicCourt has no power to withhold confirmation of the sale merelybecause the offer of an enhanced sum is made after the auction.
^ PPEAL from an order of the District Judge of Kandv.
H. V. Perera (with Garvin), for appellants.
Keuneman, for respondents.
December 20, 1929. Fisher C.J.—
This is an appeal by a purchaser,,of certain property of an insolventestate from the refusal of the learned Judge to confirm the sale.The reason given by the learned Judge for his refusal is that sincethe close of the sale by auction an offer has been put forward to buythe property at a price very considerably higher than that at whichthe property was knocked down to the highest bidder, the appellant.Clause 5 of the conditions of sale contains the following words:" On payment of the remainder of .the purchase money by thepurchaser and the confirmation of sale by court the vendor^ shallexecute a conveyance of the said property, &c., ” and it is presumablyon the words referring to confirmation by the Court that-the learnedJudge has based his refusal to confirm the sale. He does notexpressly refer to it in his judgment, but he says that “ The Courtcould refuse to confirm the sale for any good reason.” Otherconsiderations were put before us which it was urged would form a
1929.
( 236 )
1929.
Drieberg J.
AnnamalaiChetty v.
Ludovici
good basis for justifying the learned Judge in refusing to confirmthe sale, but those considerations were not urged in the Court below,and for the purposes of this appeal, therefore, we must assume thatthe only objection to confirmation is that which was urged in theCourt below. In my opinion the mere fact that a fresh offer of anenhanced sum is made after the close of the sale by auction is not ofitself enough to justify the Court in refusing to confirm the sale, and •I think therefore that the Court was not entitled to refuse to confirmthe sale on that ground.
In view, however, of the matters which have been urged before usas to non-compliance by the appellant with the conditions of sale, Ithink an opportunity should be given for the questions raised to bebrought before the Court if those concerned consider it advisable soto do.
We therefore set aside the order of the learned Judge and remitthe case to the District Court for confirmation of the sale to becomeeffective six weeks from the receipt of the record in the DistrictCourt, unless during that period an application is made to the learnedJudge for an order refusing to confirm the sale, on grounds otherthan that which was relied upon when he gave the decision appealedfrom.
The appeal is allowed with costs.
Drieberg J.—I agree.
Appeal allowed.