026-NLR-NLR-V-22-ARUNACHALAM-CHETTY-v.-HAMDOON-et-al.pdf
( 100 )
1920.
Present; Bertram C.J. and Schneider A.J.ARUNACHALAM CHETTY t>. HAMDOON et <d.
43—D, G. (Inly.) Colombo, 127,901,
Civil Procedure Code, ss. 262 and 284—Default of payment of purchasemoney—Be-sale of property—Application by first purchaser to setaside sale on the ground that the debtor had no interest.
_ A deposit which a purchaser at a Fiscal’s sale had made wasforfeited as he made default in payment of the balance, and theproperty was re-sold. She subsequently applied to Court undersection 284 of the Civil Procedure Code, having discovered thatthe judgment-debtor had no interest in the property, which pur-ported to be sold, and asked that the Court should set aside thesale* and that the amount she had already paid' by way of depositshould be returned to her. .
Held, that she-was not entitled to the return of the money, andthat there was no sale in existence to set aside.
rjpHE facts appear from the judgment.
A. SL V. Jayawardene, for the appellant.
R. J. C. Pereira (with him L. M. de Silva), for the respondents;
( 101 )
August 2,1920. Bertram O.J.—
In this case the appellant, who is the purchaser at a Fiscal's sale,made default in the payment of the balance of the purchase money,and, in consequence, under section 262 of the Civil Procedure Code,the deposit which she had made was forfeited to the judgment-creditor, and the property was re-sold. She subsequently appliedto the Court under section 284, having discovered that the judgment-debtor had no interest mthe, property which purported to be sold, andasked that the Court should set aside the sale, and that the amountshe had already paid by way of deposit should be returned to her.
I regret that I do not see that the Court can afford her any relief.Section 284 only allows her to apply to set aside a sale. But by herown -default under section 262 the sale seems to me to have beenset aside already. There is, consequently, no sale in existence toset aside. I am unable to see, therefore, how section 284 can applyto the case. The result is undoubtedly peculiar. The money isforfeited to the judgment-creditor. If there is a subsequent sale, andthe amount realized by that sale, together with the forfeited deposit,exceeds the amount of the judgment^debt, the balance is paidto the■ judgment-debtor. In any case, the forfeiture of the deposit worksout to the advantage of the judgment-debtor. If it-transpires, that *he had no saleable interest in the property, then I imagine thereeanbe no effective subsequent .sale, but the deposit has neverthelessbeen, by the words of section 262, forfeited to the judgment-creditor.The judgment-debtor thus receives an advantage through the saleof a property which never belonged to him. That certainly is apeculiar result. But it does not enable us to construe section 284as applying to circumstances which are clearly outside its terms.
Mr. Jayawardene has raised the further point that, before thedeposit was forfeited by section 262, the appellant should have hadan opportunity of being heard on the general ground that no oneshould be deprived of money or property which belongs to him unlesshe has had an opportunity of stating'his case. It is not necessaryfor us to decide whether this principle applies to a forfeiture undersection 262, because, even if the appellant has been called upon toshow cause why the deposit should not be forfeited at the expirationof the thirty days, I do not see that she could possibly have had anygood cause to show. If she refrained from paying the deposit;because she had discovered the absence of a saleable interest, sheought to have taken action within thirty days. I do not see,therefore, that the absenoe of an opportunity of being heard can inany way have prejudiced her in the matter now in dispute. .1 am,therefore, of opinion that the appeal must be dismissed,'with costs.'
Schneider A.J.—I agree.
1920.
i
Aruna*
chalamChetty v.Hamdoon