072-NLR-NLR-V-04-FERNANDO-v.-PERERA.pdf
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FERNANDO v. PERERA.
D. C., Negombo, 2,795.
Sale in execution—Purchase hy execution-creditor—Order for conveyance—Ordinance No. 4 of 1867, s. 58—Order confirming sale—Civil ProcedureCode, s. 286—Possessory action—Possession by predecessor in tide—Treating action rei vindicatio as a possessory action.
In 1887, A, an execution-creditor, purchased a parcel of land at thesale in execution, but obtained no order for a conveyance under section58 of Ordinance No. 4 of 1867. In 1895 he obtained an order, undersection 286 of the Civil Procedure Code, confirming the sale, and aconveyance was thereupon executed-in his favour by the Fiscal:
Held, that the order confirming the sale had all the requirements ofan order under section 58 of Ordinance No. 4 of 1867, and that it wasin effect an order directing the Fiscal to convey the property to A, andthe conveyance was therefore valid.
Where, in an action rei vindicatio, the plaintiff moved to be allowed totreat it as a possessory action and to prove possession for a year and aday and ouster within a year of action brought, the District Judge dis-allowed the motion on the ground that the plaintiff had not been inpersonal possession for the requisite period :
Held, that in reckoning the period of a year and a day the possession ofa predecessor in title may be taken into account, and the plaintiff’smotion should not have been disallowed.
I
N this case of rei vindicatio it appeared that the property whichformed the subject of dispute was sold under a writ ol
execution and purchased by the execution-creditor. He did notget an order for a conveyance under section 58 of the OrdinanceNo.4 of 1867, but in 1895 he applied to the Court for an order ofconfirmation of the sale, as also a conveyance from the Fiscal.The District Judge was of opinion that the order confirming thesale had been improperly allowed and dismissed plaintiff’s case,even though plaintiff moved that the action should proceed as apossessory suit, and that he should be allowed to prove possessionfor a year and a day and ouster within a year of action brought.Plaintiff appealed.
W. Pereira, for appellant.
Wendt, for respondent.
Boxser, C.J.—
By this action plaintiff, relying on his title, sought to recoverfrom the defendant a piece of land. A Fiscal's conveyance ofthe 5th March, 1895, was one of the links in his chain of title.The defendant took objection to the validity of this conveyance,which objection the District Judge upheld. It – was this: theproperty was sold in 1887 under a writ of execution issued bythe plaintiff’s predecessor in title, and at that date the plaintiff’spredecessor in title who had issued the writ became the purchaser,
1898.
August SO.
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1898. but he did not obtain a conveyance. At that date sales in execu-Augutt 80.tion were governed by the provisions of Ordinance No. 4 of 1867.
Bonser C.J. Section 58 of that Ordinance provides that, when a party in whosefavour execution is issued becomes thei purchaser of tihe propertysold thereunder, the purchase money should be allowed in reduc-tion of his claim, but that no conveyance in such a case is to be<made to the purchaser, “ but under express order of the Court.”In 1889 the Civil Procedure Code was passed, which took awayfrom the execution-creditors the right of purchasing at sales, andprovided that if they wished to purchase they must get previoussanction for that purpose from the Court.
In 1895 the purchaser wished to obtain a conveyance from theFiscal of the property which be had bought in 1887. He there-upon applied to the Court for an order confirming the sale, andan order was accordingly made by the District Court recitingthat the property was put up for sale in 1887; that thirty dayshad elasped since the Fiscal had reported the sale, and that noapplication had been made to set aside the sale; and an order wasthereupon made that the sale be confirmed. It appeared on theface of the order that the purchaser was ihe execution-creditor.It was objected that this order confirming the sate was not anexpress order of thei Court such as section 58 of Ordinance No. 4 of1867 required but it seems to me that it had all the requirementsof such an order. The fact was before the Court that the execu-tion-creditor was the purchaser, and yet the Court confirmed thesale. What was that but in effect directing the Fiscal to conveythe property. I think, therefore, that the objection ought not tohave been upheld. The case must go back to enable the plain-tiff to proceed with proof of his title.
Then, at the trial, when the plaintiff saw that the judge wasagainst him on this question of title, he asked the judge to be•allowed to treat this action as a possessory action and to provepossession for a year and a day and ouster within a year of actionbrought. The District Judge refused the application on theground that the plaintiff had not been is personal possession forthe requisite period. He seems to have held that the possessionof a predecessor in title could not be taken into account. In this,I think, he was wrong. Mr. Wendt referred us to a case, in whichit had been expressly held that the possession of a predecessormay be taken into account (Nona Umma v. Ibrahim Ismail,4 S. C. C. 75). In my opinion that ^ase was rightly decided, andthe District Judge ought not to have refused the application.
The case must be sent back for trial.
WiTnERS, J., agreed.