040-NLR-NLR-V-34-BARTLETT-v.-RENGASAMY.pdf
139
DRIEBERG J.—Bartlett v. Rengasamy.
1932Present: Drieberg and Akbar JJ.
BARTLETT v. RENGASAMY.
6—D. C. (Inty.) Kegalla, 9,793.
Hypothecary decree—Directions regarding execution—Change of auctioneer—
Power of Court.
Where a Court has entered a hypothecary decree, it has power to alterthe directions given regarding the execution of the decree.
In such a case a sale is not bad for the reason that a different auctioneerwas subsequently appointed to carry it out.
^^PPEAL from an order of the District Judge of Kegalla.
Ranawake, for second defendant, appellant.
Nadarajah and Alles, for respondents.
July 21. 1932. Drieberg J.—
This is, an action to recover money due to the first respondent on amortgage of land. Decree was entered on February 6, 1931, against theappellant, who was the second defendant, and two others. The decreewas one ordering the defendants to pay the amount due before a certainday, and directing that in default the mortgaged premises should be soldand the proceeds applied in payment of the decree and if they provedinsufficient, that the debtor defendants (the first defendant and theappellant, the second defendant) were to pay the deficiency with interest.The only directions regarding its execution which were entered in thedecree were that the land was to be sold by Mr. Krishnapillai, anauctioneer, and that the plaintiff, the first respondent, should be allowedto bid for and purchase the land, and have credit for the amount of hisclaim and costs. On May 16, the plaintiff applied for execution by anorder for sale being issued to another auctioneer, Mr. Wickramasinghe,and this was allowed. It does not appear that the defendants were given
140
DRIEBERG J.—Bartlett v. Rengasamy. .
notice of the change of auctioneer. Mr. Wickramasinghe submittedconditions of sale which were allowed. The sale took place and the landwas bought by the second respondent.
An application w^s then made by the debtor defendants to have thesale set aside on the ground that it was conducted without properadvertisement and publication, and not at the time stated in the noticeof the sale, and that by reason of these irregularities the land which wasordinarily worth Rs. 22,000 was sold for Rs. 2,075. The land consistsof 20 acres of rubber. Rs. 22,000 refers to its value at any earlier periodand there is no reason for holding that it was worth more than Rs. 2,075at the time of the sale in August, 1931. The trial . Judge hasrightly found that there was no irregularity in the publishing orconducting of the sale, and dismissed the application to have the saleset aside. One of the .applicants, the second defendant, appeals fromthis order.
• The only point advanced at tile argument with which we need deal isMr. Ranawake’s contention that the Court had no power to vary thedecree by issuing to Mr. Wickramasinghe the order to sell when thedecree directed a sale by Mr. Krishnapillai, and that even if the Courthad the power so to appoint another auctioneer, this could not bedonq without notice to the judgment-debtors. He contended that foreither of these reasons the sale was bad and should be set aside, apartfrom, any question of resulting damage from the sale being for aninadequate price.
Section 12 (1) of the Mortgage Ordinance, No. 21 of 1927, provides that—“ Where in a hypothecary action the Court finds that the mortgage oughtto be enforced, the decree shall order that, in default of payment of themortgage money within the perjdd mentioned in the decree, the mortgagedproperty shall be sold, and the Court may if it thinks, fit, in the decreeor subsequently give siich corrections as to the conduct and conditions ofthe sale (including the terms on which the mortgagee shall be allowedto purchase), and the person ;to conduct the sale and the confirmation ofthe sale, and the form of conveyance and the person by whom it is to beexecuted, and as to the delivery of possession to the purchaser and as tothe removal of any person bound by the decree from the property, as theCourt may think fit.” It was contendedj that if no auctioneer was namedin the decree, it would have been within the power of the Court tonominate such an auctioneer subsequently, that the Court has theoption of either giving this direction in the decree or subsequently, butnot Of subsequently giving a direction varying one previously given inthe decree.
It is, of some assistance to consider the state of the law before theOrdinance No. 21 of 1927. It was held in some cases, of which I need onlyrefer to Walker v. Mohideen that section 201 of the Civil Procedure Codealone gave the Court authority to give directions for the sale of themortgaged property; the plaintiff may apply for such directions, or hemay not, but if he does so apply he must do so before decree is entered!and the Court has no. authority to give such directions except in the
i (1924) 26 N. L. R. 310.
Junaid v. Mohideen.
141
decree itself. Ordinance No. 21 of 1927 was introduced to meet the diffi-culty created by this decision. While the words of section 12 (1) of theOrdinance to some extent support the appellant’s contention, the Court hadin my opinion the power to appoint another auctioneer than that namedin the decree. This proceeds on the assumption that the directionsregarding the conduct of the sale constitute the decree ; but this is notso. for though these directions can be embodied in the decree they do notconstitute the decree. This was pointed out in Zahar v. Stephen Fer-nando A decree is M the formal expression of an adjudication uponany right claimed or defence set up in a civil court, when such adjudi-cation, so far as regards the court expressing it, decides the action orappeal In an action such as this the decree is the declaration that thedefendant is ordered to pay the plaintiff a certain sum, that in default ofpayment the mortgaged property is to be sold and the proceeds appliedto payment of this amount, and that if this be insufficient the defendantshould pay thie amount of the deficiency to the plaintiff. How andwhen the sale should be carried out, the conditions on which the judgment-creditor can purchase, how the conveyance is to be executed and posses-sion given to the purchaser, are matters concerning the execution of thedecree and the directions given for any of these purposes do notconstitute the decree, though they may be entered in it. Though adecree can only be amended by the Court which passed it, within thelimits prescribed by section 189 of the Civil Procedure Code,j there isnothing to prevent a Court from varying or altering its directions regard-ing the execution of the decree, and the saJe is not bad for the r^son thatanother auctioneer was appointed to carry out the sale.'
No complaint was made in the application of want of notice' that the-order to sell was issued to another auctioneer though the appellant knewthat the order to sell had been issued, as appears from his petition toCourt of July 16, and he was present at the sale. It is not suggestedthat Mr. Wickramasinghe was a person who should not have beenentrusted with such a sale as this, and the mere circumstance that thejudgment-debtors had no notice of his appointment is no grdund forsetting aside the sale.1
The appeal is dismissed with costs.
Akbar J.—I agree.
Appeal dismissed.