030-NLR-NLR-V-26-COLOMBO-STORES,-LTD.-v.-SILVA.pdf
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Present : Bertram C.J. and Schneider J.
COLOMBO STOBES, LTD., v. SILVA.
89—D. C. (Inly.), Colombo, 2,034.
Civil Procedure Code» s. 284—May- execution-creditor apply to set asidesale on the ground that the debtor had no saleable interest—Con-struction. of Statutes—Proviso.
Ad execution-creditor who purchases property at the execution' sale may apply under section 2S4 of the Civil Procedure Code thatthe sale be set' aside on the ground that the judgment-debtor hadno saleable interest therein.
Words are not to be read into an enactment, which are not to befound there, and which would alter its operative effect, because of
provisions found in a proviso.
1 (I9J3) 16 N. L. R. 474.
*(1897) 2 N.L. R. 13.
1924.
1 (1924) C. P. 867-
( M» )
1984.
Colombo
Stores, Ltd.
v. Btiva
TT HE facts are pet out in the judgment.
Chok$y9 for the appellant.
E. O. P. Jayetilleke, for the respondent.
July 17, 1924. Bertram C.J.—
This case raises an important point of procedure, namely, whethersection 284 of the .Civil Procedure Code, which authorizes a purchaserin execution sale to apply by petition.in summary procedure to setaside the sale on the ground that the person whose property pur*ported to be sold had no saleable interest therein, applies to a casein which the purchaser is the execution-creditor, In the presentcase the purchaser was the execution-creditor, and he appears tohave sent a messenger to point out certain land to the Fiscal's*Arachchi ; and on the land .being so pointed out, the Fiscal seized it.The sale was duly confirmed, and the Fiscal's transfer was executed.But it was not until about eight months after the Fiscal’s transferthat the true facts became known to the purchaser-, namely,* that. the property seized did not belong to the judgment-debtor but tohis wife.
The terms of section 284 are perfectly general, and apparently*there can be no doubt that the words would apply to the case of apurchaser, who is the execution-creditor, but for the terms of aproviso annexed to the section. In the case of SuppramanianChetty v. Fernando 1 De Sampayo J. expressed the opinion that theterms of the proviso, which declares that both the judgment-debtorand the decree holder must be made respondents to the petition,have the effect of limiting the substantive words of the section, andexcluding from its application the case in which the purchaser ishimself the decree holder. He further said that this exclusion of adecree holder from the section is justified by the fact that it is thedecree holder who himself causes the property to be seized and sold,,and presumably undertakes the risk when he purchases under thewrit. These observations, though obiter, are necessarily of verygreat weight* But on a careful consideration of the terms of thesection, we are of opinion that this cannot be limited in the mannersuggested.
The effect of a proviso with reference to the substantive words of'the enactment to which it is appended have been considered "by theHouse of Lords in the case of The We$t Derby Union v. The Metro-politan Life Aesurance Society* In that ease it was sought toimport into the substantive section certain words which were notthere, but which were thought to be implied from the terms of the-proviso attached to the section. Lord Herschell there said, onpage 655, 111 decline to read into any enactment words which are*1 (1917) 4 a. W. B. 33.* (1997) A. C. 647.
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not to be found there, and which would alter its operative effectbecause of provisions to be found in any proviso.** Lord Watsonsaid, on page 652, “ I am perfectly clear that if the language of theenacting part of the Statute does not contain the provisions whichare said to occur in it, you cannot derive these provisions by impli-cation from a proviso. When one regards the natural historyand object of provisos, and the manner in which they And theirway into Acts of Parliament, I think your Lordships would beadopting a very dangerous and certainly unusual course'if youwere to import legislation from a proviso wholesale into the body ofthe Statute, although I perfectly admit that there may he and aremany cases in which the terms of an intelligible proviso may throwconsiderable light upon the ambiguous import of statutory words/*
It cannot be said.here that the statutory words have any ambi-guous import or require any explanation. All that is said is thatthe reference to the decree holder in the proviso impliedly excludeshim from the operation of the section. The authority I have quoted•clearly establishes that such a construction cannot be maintained.
In that case the facts were that an attempt was made to importa general positive provision into the substantive part of the enact-ment, because a. partial negative exception was contained in theproviso. But the principle of that case is equally fatal to theattempt made in the present case to limit the general terms of theprincipal enactment by reference to a particular saving in the proviso.
With regard to the second ground which De Sampayo J. putsforward for the opinion which he expresses, it may be permitted topoint out that it is not necessarily the execution-creditor who points•out the land for seizure. Section 226 clearly indicates that it is forthe judgment-debtor in the first case to point out land to be seized,and that it is only in default of his doing so that the judgment-creditor is called upon to point out property for seizure* With.regard to this particular proviso, its object is to protect the decreeholder ; to secure that, in a case in which he would not otherwisehave notice, he gets notice. It would be acting against this objectif we were to construe the proviso as depriving him of the privilegeof the section altogether. The proviso applies only in cases in whichsome person other than the decree holder is the purchaser.
There are one or two incidental difficulties in the application of;the section in the wide sense in which it is to be construed. Thefirst is that section 285 declares that when a sale of immovableproperty is set aside on the ground of want of interest, the purchaseris entitled to receive back his purchase money from any person towhom the purchase money is paid. In cases of this sort it is onlythe balance of the purchase money which is actually paid, aftergiving credit to the purchaser for his judgment-debt. With regardto that, it is sufficient to say that section 285 only applies to such•cases as naturally come within it, and in so far as any case naturally
1524.
Bebtbak
C.
ColomboStore*, Ltd.,v* SUva.
( 188 )
1924"
Bb&Xbam
0. J.
ColomboStores, Ltd,,v.Stioa
comes within it. If all has been paid by the execution-creditor a&a balance of the purchase money, that balance is recoverable underthe section.
Further, the question might well arise as to the application of'section 272 in such a case. Satisfaction of the decree under that:section may1 have been entered up. What is the effect of settingaside a sale upon this entry of satisfaction? I think it follows ofnecessity that upon the sale being cancelled, the entry of satisfaction-is cancelled also.^
Mr. J&yetilleke raises a further point: He cites an Indian case(Mahabif Prasad v. Dhumandas l) which lays it down that,, where*an execution-creditor knew at the time of the purchase that his-debtor had no saleable interest, he cannot apply under section-284 to set aside the sale. The Court has a discretion in the matter,,and would not exercise it in such %. case. He suggests that in thiscase the purchaser had either notice or constructive notice that his-execution-debtor had no title. I cannot see that this suggestionof constructive notice is made out. It is true, that the Fiscal’*Arachchi made a report which mentioned the fact that the execution-debtor's wife had certain property within the boundaries pointedout, and that there was no block of the extent indicated within the*property seized. $ut that report is not very definite. in its term/and it was not communicated to the execution-creditor.
It was not made to the Court until after the sale, and though it istrue that the confirmation of the sale took place after the report wasrendered, I am not clear that the execution-creditor was under anobligation to investigate the record at every stage of the transactionto see that no flaw in his title was disclosed. I .do not .consider*that he had constructive notice of this report, and even if he hadconstructive notice of it, the report could have done nothing morethan put him on inquiry. I do not think, therefore, that by reasonof the circumstances of this case we should refuse to exercise ourdiscretion in favour of the execution-creditor. I would, therefore,."allow the appeal with costs in both Courts.
Schneider J.—I agree.
Appeal allowed..
imi) I. L. R. 3 Alla. $27.