( 230 )
Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Middleton.
CARUPPEN CHETTY v. HABIBU.
Ex parte Marikkar Hadjiar, Petitioner.
D. C., Colombo, 22,644.
Fiscal's sale—Decree against administratrix—Application to set aside saleby heir—Person interested—Civil Procedure Code, s. 282.
Where in execution of a decree obtained against the administra-trix of an intestate estate property belonging to the estate was soldby the Fiscal, and one of the' heirs of the intestate estate appliedto have the sale set aside under section 282 of the Civil ProcedureCode,—
Held, that the applicant was a person having an interest in theproperty within the meaning of section 282 of the Civil ProcedureCode, and was entitled to make the application.
PPEAL by the plaintiff from a judgment of the District Judgeof Colombo. The facts sufficiently appear in the judgment
of the Chief Justice.
W. Pereira, K.G., Acting A.-G., and Van Langenberg, for theplaintiff, appellant.
Bawa, Acting S.-Q., and F. M. de Saram, for the petitioner,respondent.
Cur. adv. vult.
( 231 )
December 10, 1907. Hutchinson C.J.—
The defendant is sued as the administratrix of the estate of SaiboM. M. Hadjiar, deceased. Judgment was given against her for acum of money; the plaintiff issued a writ of execution for therecovery of that sum, and under the writ certain immovableproperty was sold by the Fiscal, and was bought by the plaintiff.
The respondent to this appeal petitioned the Court to set asidethe sale on the ground of certain irregularities. He was not a partyto the action, but is one of the heirs of the deceased intestate. Theplaintiff objected that the petitioner is not a person having aninterest in the property within the meaning of 'section 282 of theCivil Procedure Code; he contended that the property was vestedin the administratrix, and that she is the proper party to move ifthere has been any irregularity. The petitioner replied that he isheir to three-fourths of the estate, and that his interest is real andsubstantial. The District Judge over-ruled the objection, and theplaintiff now appeals against that decision.
Section 282 enacts that “ the decree-holder, or any person whoseimmovable property has been sold under this chapter, or any personestablishing to the satisfaction of the Court an interest jn suchproperty, may apply to set aside the sale on the ground of amaterial irregularity in publishing or conducting it.”
Reference was made to District Court, Colombo, 81,499 (May 9,1883); 6 S. C. C. 95; 9 Weerasinghe’s Report 47; 3 8. C. R. 41.
In the last-quoted case the sale was under the writ of a firstexecution creditor, and it was held that the second executioncreditor, having an interest in the proceeds of sale, had an interestin the land. I think that was right. Here the petitioner has aninterest in the proceeds of sale; the administratrix was a respondentto the petition, and was alleged to be hostile to him. In my opinion,the petitioner has an interest in the property sold within themeaning of section 282. I would dismiss the appeal, with costs.
CARUPPEN CHETTY v. HABIBU