045-NLR-NLR-V-17-CASSIM-v.-ANDRIS.pdf
( 144)
1913.
Present : Pereira J.
CASSIM v. ANDRIS298—C. R. Galle, 7,038
Fiscal's sale—Material irregularity in the conduct of the sale—Land worthRs. 400 sold for Rs. 7—Connection between irregularity and lowprice presumed.
Where a Fiscal advertised a property for sale at 12 noon, butsold it one hour earlier, and where the property which was worthabout Rs. 400 fetched only Rs. 7, the sale was' set aside oa theground of material irregularity in the conduct of the 'sale.
Pereira J.—It is, I think, palpable that there is a connection, ascause and effect, between the fact of the sale having taken place/more than an hour before the appointed time and the fact of therealization by the sale of so small a sum as Rs. 7. No doubt ithas been held that such a connection should be affirmativelyestablished, but there is no reason why it may not be establishedby means of presumptions, permissible under section 114 of theEvidence Ordinance, as effectually as it may be by direct evidence.
fJlflE facts appear from the judgment.
Zoysa, for appellant
A. St. V. Jayewardene, tor respondent.
Cur. adv. vult.
( )September 16, 1913. Pbbkiea J.—
This is an appeal from an order of the Commissioner refusingto set aside a Fiscal's sale on the grojind of material irregularityin the conduct of the sale. The appellant's case* is that the timefixed for the sale was 12 noon, but that the sale took place aboutan hour before. As to the time when the sale took place, theevidence led by the appellant appears to me to be more precise, andtherefore, ceteris paribus, entitled to greater weight than the evidenceled by the respondent. The appellant and his witness Thevis saythat they went to the land sold, and by their watches that theyhad with them the time was 11 or 11.5 a.m., -and that the landhad then been sold. On the other hand, all that the respondent'switnesses swear to is that the sale took place ** at the proper time."The Fiscal's arachchi says: " I sold it at the proper time." Now,this is an evasive answer, and I am surprised that such an answerwas elicited from the witness. The witness should have beenasked to state the time that he was referring to. The questionwhether the sale took place at the proper time was a question forthe Court to decide. So far there is no explanation of what in theopinion of the witness was the " proper time.”
The next question—a question apparently not raised in theCourt below—is whether the appellant can be said to have sufferedloss as a consequence of the irregularity. The property soldappears to have been worth Bs. 400, while it fetched at the saleonly Bs. 7. It is, I think, palpable that there is a connection, ascause and effect, between the fact of the sale having taken placemore than an hour before the appointed time and the fact of therealization by the sale of so small a sum as Bs. 7. No doubt it hasbeen held that such a connection should be affirmatively established,but there is no reason why it may . not be established by means ofpresumptions, permissible under section 114 of the Evidence Ordi-nance, as effectually as it may be by direct evidence. To take anextreme case. Where a sale is appointed to take place at 6 in theevening, it is manifest that no bidder is likely to be present at theplace appointed at 6 in the morning, and the fact of the sale fallingthrough for want of bidders might well be presumed to be due tothe irregularity. In the same way the relation of cause and effectbetween the two facts mentioned above in the present case maywell be presumed. The case of Khan v. Hussain1 cited by therespondent's counsel is not in point. There the sale was announcedto take place on March 20, and it in fact took place on that day,the irregularity complained of being that the proclamations werenot posted up thirty days at least before the day appointed forthe sale.
I set aside the order appealed from with costs.
i J. L. R. 21 Cal. 66.
Set aside.
IMS.
Caeeim *,Andris
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