( 319 )
Present : Fisher C.J. and Drieberg J.
FERON v. ISMAIL LEBBE MARIKAR ef al.
17—D. C. Galle, 25,033.
Partition—Sale of property—Valuation by Commissioner—Notice oj
sale—Sanction of Court—Ordinance No. 10 of 1863, s. 8.
Where a sale has been ordered under the Partition Ordinance,the Commissioner is bound to make a valuation of the propertybefore notice of sale is given.
The form and contents and the mode of giving notice must besanctioned by Court.
A sale may be set aside where the Commissioner has notfollowed the directions of the Court.
^ PPEAL from an order of the District Judge of Galle.
Weerasooria, for first defendant, appellant.
H. V. Perera, for purchaser, respondent.
( 320 )
*880 March 25, 1930. 1’isher C.J.—
Feron v.Ismail LabbeMarikar
In this case an action was brought for partition of a property
which the learned Judge has found to be worth Bs. 3,000. In theresult there was a decree for sale, and the property was sold forBs. 250. An application was made to the Court by the appellantto set aside the sale which the learned Judge dismissed with regret.The question for our consideration is whether the provisions ofsection 8 of the Partition Ordinance, 1863, were complied with incarrying out the sale. It is argued that it was not complied within two respects, the first being that the valuation was not madeuntil after the notice of sale was given. This appears to be thecase. The notice of sale was given in the Government Gazette ofMarch 8, 1929, while the valuation was submitted for the approvalof Court on March 21, 1929. This has been held by this Court to bean irregularity. In Tilakasekere v. Misi Nona,1 Bertram C.J. said:
“ In the present case it appears that the Commissioner made thevaluation after he had given notice. This is no doubt an irregu-larity.” Secondly, it is said that the notice of sale is a matterwhich must be controlled by the Court, that is to say, it is notcompetent for a Commissioner to make his own arrangements asregards giving notice even if he comes to the Court to ratify themafter the event; but that the Court itself must exercise its dis-cretion in deciding in what way notice should be given. I thinkthis contention is also correct. The words of section 8 are that aCommissioner shall “ give notice, of not less than six weeks in suchmanner as the Court shall direct and as shall appear best calculatedfor giving the greatest publicity thereto .” These words
indicate that the form and contents and mode of giving the noticemust be ordered by the Court, and that a sale may be set asideif the Commissioner does not act in accordance with the directionsof the Court.
In the above two respects, therefore, in my opinion section 8lias not been complied with. Having regard to the price realizedby the sale in relation to the value of the property, I do not thinkthere was any need for express evidence to show that the appellantsuffered damage under the irregularities. In my opinion it must beinferred.
The appeal will, therefore, be allowed, the sale will be set aside,and the matter will be remitted to the District Court for the sale
to be carried out in accordance with the provisions of the Ordinance.The respondents will pay the costs of the appeal and of the hearingof the application in the Court below.
Drieberg J.—I agree.
> s C. TP. R. 65.
FERON v. ISMAIL LEBBE MARIKAR et al.