088-NLR-NLR-V-25-FERNANDO-et-al-v.-RODRIGO.pdf
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Present: De Sampayo J. and Garvin A. J.
FERNANDO et cL v. RODRIGO.
35—D. C. (Inty.) Colombo, 2,752.
Partition Ordinance—Sale—Minute irregularities do not invalidate sale.
Minute irregularities were held not to invalidate the sale underthe Partition Ordinance.
A sale under the Partition Ordinance was advertised in thepapers for six weeks, but posters were posted only three weeksbefore the sale. Handbills were not distributed contrary to thedirections of the Court.
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Held, that the irregularities did not invalidate the sale.
rf^HIS aotion was one under the Partition Ordinance. The Court
ordered the property in question to be sold, and a commissionwas issued to Mr. Wickremesinghe, licensed auctioneer. Mr.Wickremesinghe filed his report on April 23, 1923, and stated thatas there was no bid among the co-owners, the property was im-mediately afterwards put up for sale among the public, and realizeda sum of Rs. 2,000.
The petitioner objected that the sale was irregular, because itwas held after the time for the return of the commission had expired.The commission was issued on March 1,1923, and required the com-missioner to bring the proceeds of sale into Court on or before April18, 1923. On April 19, 1923, the commissioner moved that thedate of the commission be extended to April 30, 1923. It wascontended that the commission having expired on the 18th couldnot be extended by the order made on the 19th, and that anyapplication for extension should have been made before April 18.The other ground of objection was that the sale had not beenadvertised as ordered by the Court.
On this point the contention was that the Court had approved ofthe advertisement of the sale by the fixing of posters and thedistribution of handbills, that section 8 of Ordinance No. 10 of 1863required the commissioner to give not less, than six weeks’ notice ofthe sale in such manner as the Court shall direct, and that as a resultthe sale should have been advertised by posters and handbills for aperiod of six weeks.
The District Judge held that the posters were posted Withinthree weeks of the sale, but that handbills Were not distributed.Hie further held that in view of this irregularity it was not necessaryto consider the question whether the extension of time was irregular.He set aside the sale. The purchaser appealed.
1924*
1984.
Fernandoe. Rodrigo
( «8 )
fl. J. C. Pereira, K.C. (with him A. L. Jayasuriya), for fourteenthrespondent, appellent.
H. V. Perera, for petitioners, respondents.
Cur adv. vuli.
May 26,1924. De Sampayo J.—
In this case we have to consider the regularity of a sale undprthe Partition Ordinance. Commission was issued to effect the saleto one L. A. Wickremesinghe. The sale was carried out, and thematter of confirming the sale or setting it aside came before the,District Judge. Of all the parties to the action only the seconddefendant, Abraham Ternando, objected to the sale, and appliedthat it be cancelled. All the other parties, of whom there wereseven or eight, either tacitly acquiesced in the sale or did notactively take steps to have the sale set aside. The chief ground on!which the objection was upheld by the District Judge Was that -handbills containing notice of the sale had not been distributed 1^.the commissioner. There were certain other points which he thoughtnot necessary to decide, which, however, have been pressed beforeus and which will be considered in due course. On the question ofhandbills the point is whether the Court had given directions thatthe sale should be advertised by means of handbills among otherforms of advertisement. The Ordinance by section 8 enacts thatthe commissioner shall give notice of the sale in such manner as theCourt shall direct. In the present case the commissioner, after hereceived the commission, submitted to the Court a document which,for convenience sake, I will call the motion paper, in which he statedthe valuation that he made of the property, the total figure statedbeing Rs. 7,500. Then comes the following passage:—
“ I file conditions of sale marked A and B and draft notice of salemarked C, and move that the same may be approved.1”
' Against this portion of the motion we find the word “ approved ”written in the margin by the District Judge and initialled by him.The paper I referred to continues “ the sale will be advertised in theDaily News, Daily Mail, and Morning Leader, and by affixingposters and distribution of handbills.”
The argument is that the effect of this document, as regards theform of advertisement, is that the Court directed that not only thesale shall be advertised in the newspapers mentioned and by meansof posters, but it shall be advertised by the distribution of hand-bills. The District Judge, as a matter of fact, on the evidence hasheld that no handbills were distributed by the commissioner, butthat itself is not a sufficient ground for setting aside the sale,but it must be Bhown that the Court gave the direction that theadvertisement shall take the form of distribution of handbills.As I have already stated the Court’s approval was asked and given
1924.
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as regards the conditions of sale and form of notice, but the Courtwas not asked to give, nor did the Court profess to give, directionsas regards the rest of the matters, namely, advertisement, &c. Thisis made clearer by reference to the journal which has a record tothis effect“Mr. Wickremesinghe ” (i.e., the commissioner) “filesconditions of sale marked A and B and draft notice of sale markedC fpr approval,” and the District Judge gave his approval. Conse-quently, so far as the order of Court on the. commissioner’smotion is concerned, there was no direction given that the saleehall be advertised by means of handbills. Mr. H. V. Perera, forthe respondents, argues that in another way the Court’s direction; to that effect may be gathered. For instance, in the conditions ofsale already referred to, there is a paragraph to the effect thatthe property will be put up by auction for sale at the spot at 5 p.m.on April 20, 1923, “after previous advertisement.” Mr. Pereraargues that the expression “ after previous advertisement ” referredto^the last portion of the commissioner’s motion paper containinghis intention to advertise the sale in a certain way and by distribu-tion of handbills. It is obvious that that expression does not referto that portion of the motion, and does not constitute a directionof the Court as contemplated by the Partition Ordinance. I maynote that the conditions of sale are on a printed form, evidently oneout of a stock kept by the commissioner for general purposes ofsales of lands and not for sales under the Partition Ordinance, muchless to this particular sale, and it is also not unreasonable to saythat “ previous advertisement ” referred to is such advertisementas the auctioneer or commissioner will actually publish according tohis discretion. It has been found, as a fact, that the commissionerdid advertise the sale in the three newspapers and also by meansof posters. The only omission was as regards the handbills. HereI may usefully cite a passagefrom the judgment of the Chief Justicein Tilaka8ekera v. Mid Nona.1 The Chief Justice there observedthat in sales under the Partition Ordinance it is always possibleto point to some minute irregularity. If such minute irregularitieswere held to be fatal, few of such sales would survive criticism.It is clear to me that this omission to distribute handbills, even if adirection was given by the Court, was of the kind of irregularitycontemplated in the passage I have quoted. I think we ought tohold, in the first place, that the Court gave no directions as contem-plated by the Partition Ordinance, and, therefore, none was violatedby the commissioner. The only ground on which the sale was setaside by the Court has no real foundation. Mr. H. V. Perera,however, appearing for the respondents, not only argued contrary,but sought to support the order of the District Judge on two otherpoints, one of which is that while the Ordinance requires that noticeof sale shall be given six weeks before the date of sale, in the present
1 C. W. R. 65.
Da SampatgJ.
Fernandov. Rodrigo
( 420 )
1924.
Da SampayoJ.
Fernandov. Rodrigo
case suoh period of notice had not been given. The faot is that theadvertisements in the newspapers were for a period of six weeks,but the commissioner admitted as regards the posters that heissued them only just three weeks before the date of the sale. TheOrdinance does not say that all the forms of notice of sale shall be*for six weeks. As I h^-ve already remarked, even if posters, x^re apart of the directions of the Court and were not issued six weeksbefore the date of the sale, the irregularity, if any, is so slight thatthe Court will not make that a ground on which to set aside the sale.
The next point urged on behalf of the respondents is .that theoriginal authority given to the commissioner was irregularlyextended to a further date. Commission was issued on March 1,.and did not limit the period as to the time of sale, but only directed^the commissioner to bring the proceeds of sale within a cettaimtime. It has been assumed on behalf of the respondents that.the:time referred to there is the limit of the time of the commissionitself, and on that footing it is argued that the extension whichwas made after that date was of no avail, and that the commis-sioner had no authority to carry out the sale at all. Now, lookingat the commission itself, the idea to fix a limit of time to carry*out the sale is not borne out. This document may not be perfectin form, but what it does say is that the cpmmissioner shall bringthe proceeds of sale within a week of the sale, “ or on or aboutApril 18, 1923.” The extension, in fact, was made on April 19 to"April 30. Now the document does not show that the Court limitedthe commissioner’s authority as regards the time of sale to April 18.It only directed him to bring the money into Court within thattime if the sale had taker) place before that date. After all, April 18,is not the decisive date. That part of the commission authorizedthe commissioner to bring the money into Court within a weekafter the date of sale, whatever date it might have been, or on o&before April 18, so that there was an alternative. It does not make'the extension on thev 19th invalid by reason nf a limit of time beingplaced beforehand. So, I think, even if the District Judge hadconsidered these two points, he would very rightly have refusedto act on them and decide the question of validity of sale for thereasons so given.
I think the appeal is entitled to succeed, and I would set asidethe order under appeal, and direct that the District Judge shouldconfirm the sale as reported by the commissioner.
The respondents should pay the costs of the appeal.
Oarvjk A,J.—I agree.
Set aside.