APPUHAMY et al. v. ADIRIAN et al

126-NLR-NLR-V-17-APPUHAMY-et-al.-v.-ADIRIAN-et-al.pdf


( 802 )
1914.
Present: De Sampayo A.J.
APPUHAMY et al. v. ADIRIAN et al.
218—C. R. Matara, 6,333.
Fiscal's1 sale—Application to set aside sale by judgment-debtor—Purchaseraware that debt was paid at the time of sale—Civil Procedure Code,es, 282 and 844—Fiscal’s fees not paid—May Fiscal sell the landseised l-^Civil Procedure -Code, ss. 268, 270 and 848.
'-.'If a Fiscal's sale can be-shown, before it is confirmed, to have beenmade under an entire- mistake, when to the knowledge of the pur-chaser the exigency of the writ had been fully satisfied, the salemay be set aside under section 344 of the Civil Procedure Code.
In, this case the Supreme Court treated an application madeunder section 282 as one made under section 344 of the CivilProcedure Code.
When a writ is satisfied by the payment of the amount whichthe Fiscal is thereby authorized to levy, the Fiscal cannot furtherexecute the writ merely for the recovery of his own fees.
The Fiscal’s only course is to proceed in the manner laid downby sections 258 and 270 of the Civil Procedure Code.
HE petitioners (defendants) applied to have the Fiscal’s sale
X underwrit- issued in this caseBetaside. They filed the
following petition:—■
TourHonour's -:applicants arethe judgment-debtorsin the above-
styled case.
Thatwith the. consent and.knowledge ofthejudgment-debtors'
proctors, .the.first applicant sold two .ofthe -lands, specially mortgaged
to Don ; Davith Wickremesinghe of Kirinda and Hewa Lokugey SamelHamy,and raisedmoney and paid the amount ofthedebt in the said
case and -costs in full, as would appear on reference to the two receiptsrespectively – dated December 22, 1913, and January 9, 1914 (which willbe produced- -a^. the inquiry into this petition).
Thatlong afterthe payments and settlement oftheabove debt, ».e.,
on.the 14thinstant,' at an unusual hourof the day, namely, 6 o'clock
inthe evening, the said Fiscal’s Arachchi,whois a close relation of the
second respondent and a thick friend of the first and third respondents,and who' knew about the payments of the said debt, as he happened to beat the notary’s office on the day the first respondent sold the two landsfor the payment of the debt, sold the following lands to the first, secondand third respondents at the extremelylowprices,* withoutmakingany
publication -of the sale as required by law, that is to say:—
8/16 of Gulugahawatta at Kirinda, worth Es. 100, for Bs. .3
to first respondent.
8/16 of Gulugahadeniya, worthBs. 60, for . Bs.2 tofirst'
respondent.
r
( 898 )
(8) One pela extent of Uda Kirin dakumbura, worth. Be. 200, for191<L
Be. 4 to second respondent.•.—7-
AppuMtnu
(4) 1/7 of Werolugahamadiththa and the planter's half, share of thesecond plantation thereof and tiled house of ..seven cubitsinWeralngahamadiththa, all worthBs.800, for Bs.14to
third respondent.v ’'
That theapplicantshavesustainedsubstantial injury by reasonof
the said irregularity of not publishing the sale, and by the said sale ofvaluable properties for low price's.
That theapplicants are not indebtednowtojudgment-debtor’inany
sum of money.
Whereforethe applicants pray that,in termsof clause 282ofthe
Ordinance No. 2*of 1889, the said sale may be set aside with costs.
The following issues were proposed and accepted: —
■ (1) Wasthe writ under which thelandsinquestion1 -weresold a
valid writ?
(2) Weretherespondentsalreadyaware thatthe writ had been
paid and settled?
(8) Was there due publication of the sale?
(4) If not, didthepetitioners suffer any material damaged by reason
of the said irregularities?
The learned Commissioner delivered the following judgment: —
In this case writ issuedon December1,1918.Seizure ■, of . property
took place on December 13, 1913 (P 4). On January 7,1914, partpayment ofthegreater portion of thedebt, viz., Be. 280,was 'certified.'
On January9,1914,the balance (Bs. 19) waspaid,' but- payment was
.not certified by plaintiffs' proctor. The property seized was sold oilFebruary 14, 1914, as the seizure was not withdrawn. *. The result isthis petition to set aside the sale.
I think it was very negligent on thepartofplaintiffs', proctornot
to have withdrawntheseizure, or at'any rate nottohavecertifiedthe.
second payment. Petitionersare by no meansfreefrom -bl$me inthe
matter^ As,however,theseizurewas ..not withdrawn,and full payment
not certified, I canseeno reason to hold'' thatthe' writ'whs ^ invalid. No
authority inpointhasbeenshown to me, thoughIhave:waitedfive
days for it,and Ur.Grebe promisedto furnishauthoritieson the 12th.-
Nor has any irregularity in theconduct ofthesalebeen proved. The
only question is whether respondents were innocent purchasers.
It is in'evidencethatthirdrespondent purchasedone of the lands,’
Uda Kirindakumbnra,from theoriginal first petitioner,, father – of. Siddi
Appu, nowdeceased.ThelateAdirian sold the land-in order .to. .raise
money topay offthis debt. That evidencehasnotbeen contradicted.
It therefore followsthatthird respondent knewthe debthad'"been paid;
first is his brother, and had equal knowledge. It is not, however,: shownthat second respondent knewof -a previoussale.Itdoes not; appearthat
Adirian wasatthesale to informintendingpurchasers.However, the
lands fetched nexttonothing, because it wasprobablyknown that the
writ had been satisfied. I therefore set aside the sale of the,'first, second;and fourthlandson the groundthat thefirstand- third •' respondents
were in apositionto know, andknew, thatthewrithad been* satisfied.
( 394 )
1914. Ana were therefore not' innocent purchasers for value, but uphold the
sale of third land, as second respondent was not in such a position.
As to fihe Fiscal’s Arachchi, I do not think he should have beeen sued.He had only to obey orders and carry out the sale.
The petitioners will pa; costs of second respondent and of fourthrespondent; first andthird respondents will pay the petitioners' cost.
J. C. W. Bock.
In forwarding the above case, I have the honour (to state that, inwriting my judgment, by an. oversight I omitted to state my opinionthat the plaintiffs had suffered material damage by the sale.
Appuhamya Adiridn
J. C. W. Boot.
Balasingham, for the appellants.—The writ was not paid in, full.The petitioner .himself admits in his cross-examination that “ theFiscal's charges had not been paid." In any case there was noorder .to the Fiscal to stop sale. It was held by the Full Court in. Silva v. Raw ter 1 that the Fiscal has no power to stay execution of awrit without an order of Court to that effect. See also 16 N. L, R.451, 2 Leader 151. It would, be- inconsistent to hold that theFiscal had to sell, but that no one should purchase if he knowsthat the debt was paid. The money was not paid to the Fiscal,but to the creditor.
Nothing has been proved to show that there was any irregularityin publishing or conducting of the sale. A sale regularly conductedunder a subsisting decree does not become null and void, even if thedecree is afterwards set aside. See Idroos Lebbe v. Meera Lebbe.2The petitioners have applied for setting aside the sales on the groundof material irregularity under section 282 of the Civil ProcedureCode. The fact that the purchasers knew that.the debt was paidis not an irregularity in publishing or conducting of the sale. (See14 N. L. R. 314, 2 A. G. B. 123.) In any case that is not a groundset Out in their petition as a ground for setting aside the sale.Sections 282 and 283 require that the grounds of each irregularityon which a person desiring to set aside a sale relies should beexpressly notified to the Court within thirty days of the sale, andthe Court has no power to set aside (whatever hardship the particularcircumstances of the case may disclose) any sale on the ground , ofan irregularity which has not been. so notified (see- Chellappa v.Selvadurai3). The objection in this case was not raised withinthirty days, and the second issue should not have been framed.
Where a person, a stranger to the proceedings, purchases propertybona fide at an auction sale held in execution of a decree, the sale tohim cannot be set aside,- on the ground that the decree had alreadybeen satisfied out of Court at the" time the sale was held. SeeYellappa v. Ramachandra.4
(1906) 10 N. L. R. 56.8 (1912) 15 N. L. R. 139.
* (1899) 1 Tam. 6.4 (1896) 21 Bom. 463.
( 395 )
Even ii an application was made to the Court, it would not have 1M4.recalled the writ unless the Fiscal’s fees were paid. See section 343.' AppuhamyThere is no evidence to show that, the appellants knew- of the pay- «• AdtritMment of the debt.
7. Orenier (with him Canekemtne), for the respondents.—TheJudge holds that the appellants were aware of the payment. Theproperties were sold for ridiculously small amounts. There isnothing on the face of the record to show that objection was takento Idle framing of the second issue.
July 17, 1914. De Sampato A.J.—
The appellants are the first and third respondents to a petitionsubmitted by the defendants, who are the judgment-debtors in thiscase, for the purpose of having certain sales in execution set aside.
The appellants were the purchasers at those sales. The petitionpurports to be an application under section 282 of the Civil ProcedureCode, but that section does not apply because there is no irregularityshown in the publication or conducting of the sales. ’ There is,however, no objection to the application being regarded as one madeunder section 344 of the Civil Procedure Code.
The judgment against the defendants was for Es. 222, but writissued for the recovery of Es. 254.11, the difference being due tothe addition of costs and poundage. After the issue of writ thedefendants paid to the plaintiffs’ proctor a sum of Es, 230, which wascertified on the record, and a further sum of Es. 19, for. which areceipt was granted. From the terms of the receipt it is .clear thatthe plaintiffs received the money in full satisfaction of their, claim,and I agree with the Commissioner’s finding that thereafter therewas nothing to be recovered by the plaintiffs oh their. judgment,.
By some mistake, however, the writ was not recalled, and the.
Fiscal proceeded to sell certain lands, some of which .were..purchasedby the appellants for ridiculously small sums. There is evidencein the case to show, and the Commissioner finds, that the appellants,well knew prior to the sales that the amount of the writ had beensatisfied. Counsel for the appellants, however, '’urged' that the.evidence fell short of proof that the appellants were aware of thepayments made. It is generally difficult to prove a fact of thedescription by direct evidence, but it is sufficient for practicalpurposes if circumstances are proved from which it can be inferred.
In my opinion there is ample proof of circumstances in this casepointing to the conclusion that the appellants had knowledge ofsatisfaction of the judgment. As a matter of fact, -the large sum ofEs. 230 was paid out of the proceeds sale of another land, whichwas purchased from the defendants on a notarial conveyance by oneof the appellants, who are brothers. The arachchi- who conductedthe Fiscal’s sales appeals to have himself been present at the notary’s
( 896 )
Iftttj office when the deed was executed, and there is some ground forDptfce defendants’: suggestion that there was collusion between him and
the purchasers in connection with the Fiscal's sales.
Apputomy ' The question in these circumstances is whether it is within thev. Adman poorer of the Court to set aside the sales on the ground that theamount of the writ had been fully paid. In Ooonetilleka v. Goone-tilleka 1 this Court, while questioning the soundness of a contention,that section 844 was an enactment of substantive law, and that ina case which did not fall under section 282 it empowered the Courtto set judicial rules aside under any circumstances in which justiceto the parties may require that to be done, nevertheless allowed thatunder section 844 Fiscals* sales might be set aside for reasons whichwould render, them void under the common law, i.e., for fraud.Applying thq principle thus recognized, I think that, if a Fiscal’ssale can be shown, before it is confirmed, to have been made underan entire mistake, when to the knowledge of the purchaser theexigency of the writ had been fully satisfied, the sale may similarlybe set aside under section 344. I therefore consider that the appli-cation in this case is well founded, so far as the execution sought toenforce a satisfied judgment. But it is argued that the Fiscal’s saleswere still good, because it was shown that the Fiscal’s tees had notbeen paid. As regards this, I am unable to agree that when a writis satisfied by the payment of the amount which the Fiscal is therebyauthorized to levy, the Fiscal can further execute the writ merelyfor the recovery of his own fees. Section 258 provides a scale of feesdue to the Fiscal when a sale takes piace, and enacts that where asale .is not proceeded with after seizure and publication of sale theFiscal shall recover half the fees so sanctioned, and that in defaultof payment the Fiscal shall certify the amount to Court, and section270 provides for the procedure to be followed in order to enforcepayment. Of. course, if the sale in fact takes place, the Fiscal maydeduct froih the proceeds what is due to him and account to theCourt for the balance; but if the sale does not take place, it seems tome that the Fiscal’s only course is to proceed in the manner laiddown, by sections 258 and 270.
Fpr these .reasons I think the order appealed against is right, andI dismiss the. appeal with costs.
Appml dismissed.
1 (1912) IS N. L. R. 272.