065-NLR-NLR-V-07-DE-MEL-DHARMARATNE.pdf
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1903.
September 28.
DE MEL v. DHARM AR ATNE.
C., Colombo, 13,718.
Judgment—Issue of writ of executions—Appeal against decree—Sale by Fiscal—Confirmation of sale—Conveyance by Fiscal to purchaser—Reversal ofjudgment by Supreme Court—Application to District Court to vacateorder of confirmation of sale—Civil Procedure Code, ss. 282, 283.
Where a writ of execution Was allowed upon a judgment against thedefendant, and the defendant appealed against the decree and theSupreme Court set it aside a week after the Fiscal had sold his property,and where, such sale being confirmed by <order of the District Court, thedefendant moved it t<^ vacate its order of confirmation,- -Held, that the Court had power to vacate its order.
T
HE plaintiff obtained judgment against the defendant on th$15th August, 1902, and issued a writ of execution on the 18tb
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of thb aft™™ month. The defendant filed his petition of appealagainst the decree on the 27th.
On 14th November, 1902, the Fiscal sold to a third party thedefendant’s land which had been seized under the writ. The Balewas confirmed by order of Court dated 20th January, 1903, and theFiscal’s conveyance to the purchaser was duly passed.
The Supreme Court sitting in appeal having set aside thedecree (under which the sale had. taken place) on the <25thNovember, 1902, the defendant moved the District Court for anorder to vacate its order of the 3(fth January, 1903, whereby it'had confirmed the sale, on the ground that such order was madeper incuriam, in ignorance of the faot that the decree had beenset aside in appeal.
The Additional District Judge (Mr. Felix Dias) allowed themotion on the authority of Idroos Lebbe v. Meera Lebbe (1 Tam-byah’8 Reports, p. 6). He held that a Court could refuse to confirma sale only for the reasons stated in sections 282 and 283 of the CivilProcedure Code; that a defendant who did not, within the thirtydays allowed him under section 283, apply to the Court to stay theconfirmation of a sale was not entitled afterwards to question itsvalidity; that if no such application had been made, it couldrefuse to confirm a sale if it appeared that the judgment debthad been satisfied at the time the writ of execution issued; thatthe defendant neglected to take steps within the thirty days tohave the sale set aside, and an innocent purchaser ought not tobe allowed to suffer by his negligence. Nevertheless the Courtfelt bound by the Supreme Court decision above referred to.
“ This decision, ” the A.D.J. observed, “ appears to have beenwrongly decided. Lawrie, J., has followed two Indian decisionsbased on sections 312 and 316 of the Indian Procedure Code, butit seems to me that they have no application under our Code.In section 312 of the Indian Code, which partly corresponds toour section 283, there is no proviso showing the grounds uponwhich the Court shall stay' its hand in confirming a sale. Undersection 316 of the Indian Code, which does not appear in ourCode, after a sale of immovable property has become absolute theCourt is bound to issue a certificate of title to the purchaser butonly provided that the decree under which the sale took place wasstill subsisting at the date of the certificate.'*
“ In other words, under the Indian Cod’e, a sale is incompleteuntil the issue of the certificate by the Court, so that if in theinterval the original decrep is reversed for any reason, the Courtceases to have jurisdiction to tak‘e further steps to execute thatdecree, and necessarily it has been rightly held that it had no
1903.
September 28.
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1903. power to confirm a sale or issue a certificate after the- decree hadSeptember 28. been 8et aside.
“ The Indian cases relied upon cannot govern us, and the onlygrounds upon which a Court can refuse to confirm a sale are thosecontained in sections 282 and 288 of our Code.
“ Following the judgment of the Supreme Court above cited,I direct that the order of the 20th January, 1903, confirming thesale of property in this case be vacated. ”
The purchaser in execution appealed.
The case was argued on 23rd September, 1903, before Layard, C.J.
Langenberg (with. Samarawickrama), for the purchaser,appellant.
H. J. G. Pereira, for respondent.
Cur. adv. vult.
28th September, 1903. Layard, C.J.—
In this case the District Judge has very properly followed Mr.Justice Lawrie’s judgment in the case of ldroos Lebbe v. Mira Lebbereported in 1 Tambyah’s Reports, p. 6. It is, however, argued byappellant’s counsel that Mr. Justice Lawrie’s judgment isincorrect, and being the judgment of a single Judge is not bindingon this Court.
It is suggested that Mr. Justice Lawrie, in following the twoIndian decisions cited by him, overlooked the difference betweenour Code and the Indian Code, and that these two decisions arebased on the proviso attached to section 316 of the Indian Proce-dure Code, which has no place in our Code.
A careful perusal of these two decisions discloses that they bothdeal with the jurisdiction of a Court to confirm a sale where a salein execution of a decree has taken place pending an appeal andthe decree has been reversed befor the sale has been confirmedby the Court. Now, the section of the Indian Code which deals withconfirmation of sales in execution by the Court is section 312, andthat section corresponds to section 283 of our Code, and containsno provision directing the Court to refrain from confirming a salein execution where the decree on which the writ of execution hasissued (.has been set'aside- before the application for confirmationwas made; still the Indian Courts held that the power of the• Court to confirni the sale under a decree ceased when such decreewas reversed in appeal before the confirmation took place, andthat the Court had no jurisdiction to ■ confirm such sale. Thejudgments of the Indian -Court;, which -make no reference tosection 316 of the Indian Procedpre Code or of the proviso to itr
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appear to me to be sound. A sale under a decree* is incomplete 1903.until confirmation by the Court, and the Court’s power to confirm September 23*a Fiscal’s sale is dependent on the sale being held in pursuance of a Lavabd, C.J,decree. It is the existence of a valid decree which gives the Courtjurisdiction to act. Such being the case, when the decree has beenswept away by a judgment in appeal, the Court has no power toconfirm the sale, there being at the time no subsisting decreewhich would justify the Court in acting. The power ofconfirmation is to be executed when there is a decree and a salethereunder, and consequently if then decree has ceased to existbefore the Court is called upon to exercise its power of confirma-tion the Court’s jurisdiction to confirm ceases. Again, #undersection 283 of our Code a sale can only be confirmed if no suchapplication is made as is mentioned in the preceding section. Oneof the parties who is entitled to make such application and supportit under section 282 is the decree-holder; no such person, however,exists as a decree-holder when there is no subsisting decree.
Sections 282 and 283 contemplate that there is a decree-holder'at the time of confirmation of the sale; when however the decreeceases to exist, there is no decree-holder who can make an appli-cation or support it when made.
A reference to section 316 of the Indian Procedure Code shows-that that section deals with what transpires after the order ofconfirmation of a sale under section 312 has been made, and in noway limits the power of the Court to confirm a sale under section312; its provisions were not alluded to by the Indian Judges intheir judgments in the cases above referred to, and could not in anyway have affected their judgments, because, as I said above, thatsection deals with what transpires after the order of confirmationhas been made by the Court.
Section 316 runs as follows:“ When a sale of immovable
property • has become absolute iu manner aforesaid, the Courtshall grant a certificate stating the property sold and the name ofthe person who at the tome of sale is declared to be the purchaser.
Such certificate shall bear the date of the confirmation of the sale;and, so far as regards the parties to the suit and persons claimingthrough or under them, the title to the property sold shall vestin the purchaser from the date of such certificate, and not before:
Provided that the decree under which the sale took place was still*subsisting at that date. ”
It enacts only what is to happen after a sale has been confirmedunder section 312, viz., that the Court must i^sue a certificate andthen proceed to declare what the effect of such a certificate is,viz., that it vests the title of the, properly mentioned in it in the-
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1903.purchaser,provided thatthe decreeunder which the sale took
September28.place wasshill subsistingat thedateof the certificate, i.e., at the
Lay—C.jdate of the confirmationof thesale,because the certificate bears
that date also.
The object of the proviso is to limit the effect to be given to acertificate after it has been issued, for, the section havingimperatively enacted that a certificate once issued was to vesttitle, it was necessary to provide that it did not do so if the decreewas not subsisting at the date of the certificate. Otherwise it wasopen toargument thatwhena certificate was produced the
enactment prevented the person, whose property was mentionedin, it«as having been sold, from impeaching the title of thepurchaser under any circumstances. The object of the provisowas to emphasize the fact that the Court could only act undersection 812 when there was a subsisting decree, and not in anyway to define the jurisdiction of the Court to confirm a sale undersection 812.
The order of the District Judge must be affirmed, and inaddition thereto it must be declared that the purchaser at theFiscal’s sale is entitled to a refund of the amount paid by him.If the amount of the levy is in Court, the purchaser must beallowed to draw it, and the execution-creditor, the plaintiff, mustbe decreed to pay the purchaser the difference between theamount in Court and the actual purchase money. If the plaintiffhas drawn the amount of the levy, then he must be decreed to paythe whole of it to the purchaser. The appellant must pay thecosts of the appeal.
Wendt, J.—
I entirely agree. The true principle appears to me to be thatthe confirmation of the sale is a step in the execution of the decree,which the Court has no jurisdiction to take if the decree no longerexists. I think, therefore, that the decision of Lawrie, J., inIdroos Lebbe v. Meera Lebbe (I Tamb. 6) was perfectly correct.