066-NLR-NLR-V-30-ARUMUGAM-PULLE-v.-DURAYA.pdf
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Present: Fisher C.J. and Drieberg J.
ARUMUGABl PULLE v. DURAYA.
136—D. C. {Inty.) Kurunegala, 12,480.
Sale under mortgage decree—Bide subject to acceptance bp Court—Condition not incorporated in contract with purchaser—Power ofCourt to refuse confirmation.
Where, at a sale held under a mortgage decree, there was acondition that the 'bids were subject' to the acceptance of Court,but this condition was not incorporated in the contract enteredinto between the auctioneer and the purchaser,—
Held, that the Court had no power to refuse confirmation of thesale where the purchaser had complied with the conditions embodiedin the contract.
A
PPEAL from an order of the District Judge of Kurunegalasetting aside a sale of property held under a mortgage decree.
Among the conditions read out at the sale was one to the effect that
“ all bids are subject to acceptance of Court.” But this condition .
was not incorporated in the contract entered into between theauctioneer and the highest bidder. The learned District Judgerefused to confirm the sale.
H.'V. Perera, for purchaser, appellant.
Hayley, K.C. (with Ferdinands), for defendant, respondent.October 4,1928. Fisher G.J.—
This is an appeal from a judgment refusing to accept a bid,admittedly the highest bid,- at a sale of . mortgaged property heldunder a decree for sale. The learned Judge from very excellentmotives has decided to treat the sale held under the decree as a nullity,for the present at all events, with the result that the appellant. who has acted in strict accordance with all the obligations imposedon him by the conditions of sale finds himself debarred from gettinga transfer of the properly which he has purchased. The learnedJudge justifies his action on the fact that at the top of the printedconditions of sale the words “All bids subject to acceptance ofCourt,” which were read out at the sale with the other .conditionsare inserted in manuscript. In my opinion, those circumstancescannot interfere with or affect the right of the appellant to have the.property duly transfered to ,him in view of the fact that inaddition to having complied with all the conditions himself, he holds
1928-
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1928. a contract duly executed by the auctioneer to convey the property-lrw^nre r!..T. to him. That contrct, which is governed by and was executed in——accordance with section 2 of Ordinance No. 7 of 1840, does not
contain the condition alluded to and in an action upon that con-Dura/ya tract it would not be open to the vendor to give oral evidence of acondition which is not embodied in the contract. It is clear law thatterms offered and representations made during the negotiations of acontract which are not contained in the final agreement are excludedfrom the contract. . An additional stipulation cannot be introduced.This is not like the ordinary case of confirming or refusing to con-firm a sale. In such a case the question of confirmation turns onconditions anterior to the hale, and the question is whether allconditions under which it is laid down that the sale should be heldhad been performed at the time the sale was held. In the result,therefore, the appellant who has been required to perform his partof the contract and has performed it, has a binding contract witha person legally authorised to sell the property and is entitled tohave effect given to the legal consequences of such a situation. Asregards the so-called condition of sale, the present -case shows thedifficulties to which it may give rise, and though it is not necessaryto. definitely pronounce on its legality or illegality in this case, I thinkit may safely be said that it is a condition to which the plaintiff insuch an action as'the present action could successfully object.
In my opinion the order refusing to accept the appellant’s bidmust be set aside and a transfer of the property to the appellantshould be carried out in the ordinary way. The respondent mustpay the appellant’s costs of this appeal.
Dbiebebg J.—I agree.
Appeal allowed.