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GABRIEL APPUHAMY v. PELIS PERERAAPPUHAMY et at.
D. C., Negombo, 1,855.
Fiscal’* conveyance to purchaser in execution sale—Ordinance No. 4 of 1807,ss. 54, 56, and 58—-And Civil Procedure Code, ss. 283 and 280—Con-firmation by Court—Proper time for conveyance.
Upon a sale in execution duly held in 1871 under Ordinance No. 4 of1867, and no objection having been taken thereto within thirty days ofthe sale—
Held, per Withers and Browne, JJ. (Lawrie, A.C.J., dissentients'),that it was competent to the Fiscal to pass a conveyance to the purchaserin 1893, and that such conveyance was valid. Such purchaser not beingexecution-creditor, an express order of oourt to convey is not necessary.
Held further, per Withers, J., that it was only sales of property heldafter the Civil Procedure Code came into operation that required anorder of confirmation as a condition precedent to a Fiscal’s conveyance.
r I >HE land in dispute, in this case of ejectment, belonged toone Martelis Perera Appuhamy, who by deed No. 474, dated
16th May, 1870, leased it to one Domingo Fernando Rendrala fora
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term of twenty years, and pnt him in possession thereof. On the31st August, 1871, the Fiscal of Negombo, in pursuance of a writ ofexecution issued against Martelis Perera, seized the land and soldit by public auction to the plaintiff, who bought it subject to thelease in favour of Domingo Fernando. On the death of the lessee,his legal representatives, by deed dated 11th August, 1874,assigned to the plaintiff the unexpired term of the lease and puthim in possession of the land. He continued to hold it till theexpiry of the lease, and thereafter on the 11th May, 1893, obtainedfrom the Fiscal a conveyance of the premises in his favour, aspurchaser in execution. The plaintiff averred in his plaint (filedon the 5th September, 1893) that the defendants, on the 28thFebruary, 1892, entered upon the land, and, having ousted theplaintiff’s lessee, were in unlawful possession thereof; and heprayed for declaration of title and for ejectment of defendants.
The second defendant only appeared, and in his answer heaverred that the Court, by its order dated 7th February, 1893, hadrefused to confirm the sale in question, which was therefore nosale. He also pleaded that the Fiscal’s conveyance was obtained byfraud; and denying the ouster and unlawful possession complainedof, he claimed the land as his own by right of purchase fromMartelis Perera (from whom the plaintiff also professed to derivehis title) by deed dated 11th March, 1892, and duly registered onthe 12th March, 1892. He prayed for declaration of title and fordismissal of the plaintiff’s action.
The Court framed the following issues:—
Is the Fiscal’s conveyance in plaintiff’s favour void byreason of there being no authority of Court for its issue ?
If valid, what is the effect of its registration ?
If the conveyance be void, does the plaintiff’s possessionenure to his benefit ?
Upon argument, the plaintiff’s action was dismissed with costs,and judgment was entered for the second defendant, declaringhim owner of the land.
The plaintiff appealed.
The appeal was argued first on the 12th March, 1895, beforeLawrib, A.C.J., and WiTHBRS, J. And their Lordships not beingable to agree to a judgment, it was argued again on the 5th April,1895, before Lawrib, A.C.J., and Withers and Browne, JJ.
Wendt and Domhorst, for appellant.
Batva, for respondents.
Cur. adv. vult.
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17th April, 1895. Lawrie, A.C.J.—
The plaintiff averred that on the 31st August, 1871, he purchasedthe land in question at a Fiscal’s sale held in execution of a writagainst Martelis Perera.
The defendants in the present action said that they conld notadmit the fact of the sale in execution, and they put the plaintiffto the proof of it.
The only evidence of the sale adduced at the trial was a convey-ance by the Fiscal dated in 1893 (twenty-two years after thealleged sale).
I shall, however, for the purposes of this judgment, assume thatit has been proved that the sale in execution in 1871 was in allrespects regular, and that the plaintiff, aB purchaser at that sale, hada right then to get a conveyance from the Fiscal if he paid theprice, supplied the Btamps and survey fees, &c., required by theOrdinance No. 4 of 1876.
The plaintiff did not apply for or get a conveyance.
He was in possession of the land as lessee under a lease fortwenty years, which expired in 1892 ; the former owner of theland transferred the land to the defendant in this action, whoregistered the transfer.
The plaintiff made two attempts to get the Court to authorizethe Fiscal to grant a conveyance, and he failed. In one of theseattempts the order of the District Judge was brought to thiB Courtin appeal, and the order was affirmed.
Burnside, C.J., observed that in his opinion “ no right exists“ to call on a Fiscal to execute a conveyance . . . outside the“ action in which the property has been sold,” and he added he“ knew of no law by which the Fiscal becomes liable to the whole“ world to make a conveyance.”
These observations were obiter, but they are valuable as havingbeen expressed in regard to the right of this very plaintiff to getthe conveyance on which he now founds his case.
Notwithstanding the refusal of the Court to compel theFiBcaltogrant him a conveyance, the plaintiff went to the Fiscal, who(eitherignorant of the proceedings already taken, or thinking that he wasbound to grant a conveyance, or that he was entitled to do so)granted the conveyance of the 10th May, 1893, which recites thatthe sale wsb held on the 31st of August, 1871.
The learned District Judge framed this issue :—
“Is the Fiscal’s conveyance in the plaintiff’s favour void byreason of there being no authority of Court for its issue ? ”
The learned Judge decided in the affirmative. I think he wasright. Fiscals have no common law rights, and are under no
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common law obligations to grant conveyances; they can do soonly in strict conformity with the Civil Procedure Code. Theolder provisions of the Ordinance No. 4 of 1867 have been repealed.
By the present law a Fiscal cannot grant a conveyance unlesshe has before him a confirmation of the sale by the Court.
I can find nothing in the Code which giveB a Fiscal an excep-tional right to convey, without confirmation, if the sale was heldbefore the Code came into operation.
There is a difference in the form of conveyance used under theCode and that used under the Ordinance No. 4 of 1867. There isalso, I believe, some difference in the amount of stamp duty nowexigible. I do not think it could be contended that a Fiscal nowhas right to issue a conveyance in the old form, or with the oldamount of stamps (in this case it is the new form of conveyancewhich has been signed).
It seems to me that a Fiscal is so completely the creature ofwhat remains of the Ordinance No. 4 of 1867 and of the Code thathe has no right to attempt to transfer property except in strictconformity with these laws.
It is true that Fiscals holding office prior to August, 1890, hadmore discretion given to them in the matter of giving transfersthan their successors since 1890 have had, but the Fiscal who gavethe conveyance in 1893 had the lesser rights and powers, and theFiscal gave (in that year) a conveyance without the confirmationof the Court. I venture to dissent from my brothers, and to expressthe opinion that he acted in excess of his powers, and that theconveyance is void.
Even under the old law, a Fiscal would, in my opinion, haveexceeded his duty if after the lapse of ten years he had given aconveyance. Here twenty-two years had passed and new interestshad been created.
I regret that I am unable to concur with my Lord. Under theOrdinance No. 4 of 1867 it waB enacted in the 54th section that nosale should be held “ bad on the ground of irregularity or infor-“ mality, objection to which was not made within thirty days of the“ sale.” If within that time no application was made under section53 of the Ordinance to 6et aside the sale, on the ground of amateria] irregularity in the publishing or conducting it wherebythe applicant sustained substantial injury, the sale was good, andcould not be impeached. (See Sillery's case in 52 L. J., P. C. 7.)In section 56 of the Ordinance it is enacted as follows: “ If the“ Court shall not have disallowed the sale, and the purchaser shall• VOL. I.c
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“ have paid the full amount of the purchaee-money according to the"conditions of sale, and shall have supplied the Fiscal or Deputy“ Fiscal with stamped paper of the proper amount required by law“ for the conveyance of the land sold to him (which stamped paper“ he shall be bound to supply when he pays the purchase-money in“ full), the Fiscal or Deputy Fiscal shall make out and execute a"conveyance of the property according to the form hereunto" annexed, and marked J, in duplicate.”
On the 10th May, 1893, the Fiscal assigned and delivered to theappellant the conveyance of property which had been judiciallysold on the 31st August, 1871, the property being a reversion ofthe interest in the land on the expiry of a lease for a long term ofyears. It was the duty of the Fiscal to grant the conveyance and aprivilege of the purchaser to compel the performance of that duty.
This is not a case under the 58th section of that Ordinance, inwhich an express order of the Court was required before theFiscal could deliver a conveyance to the purchaser.
The Ordinance No. 2 of 1889, in section 2, expressly declaresthat the repeal of the Ordinance in the third column thereof(including, therefore, No. 4 of 1867) should not affect any right,privilege, obligation, or liability acquired, accrued, or incurredunder any enactment hereby repealed. The right to call for theFiscal’s conveyance of the property sold in 1870 had accrued tothe plaintiff before the Ordinance No. 2 of 1889 had come intooperation.
In my opinion it is only sales of property held after the CivilProcedure Code came into operation that require an order ofconfirmation as a condition precedent to a Fiscal’s conveyance, allother necessary conditions being fulfilled. To hold otherwisewould be to give a retrospective effect to the Civil Procedure Code.
1 would answer the District Judge’s issue in the negative, andtherefore in favour of the plaintiff, who is entitled to succeed.
[The foregoing judgment having been read, WITHERS, J.,continued as follows :—]
I venture to adhere to the foregoing opinion which I firstformed on the question submitted to us for decision, and that is,to quote the words of the District Judge, “ Is the Fiscal’s con-“ veyance in plaintiff’s favour void by reason of there being no“authority of Court for its issue ?” I would therefore, for thereasons advanced in my former opinion, answer this questionin the negative, and send the case back for all other questionsproperly raised in the pleadings or settled, as the case may be, tobe decided in the Court below.
The appellant is entitled to his costs in appeal.
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I wish to add that I an> quit* unable to understand how theaction in which the premises were bought and sold in execution ofthe judgment can be considered a pending one, so as to be affectedby the provisions of section 3 of the Civil Procedure Code.Execution happened more than twenty years ago.
On 16th May, 1870, Martelis leased the land for twenty years. On31st August, 1871, under a writ against him in the action 4,567,D- C., Negombo, plaintiff, not as execution-creditor, but as anoutsider, bought the lessor’s reversionary interest, but did notcause the Fiscal to execute a conveyance in his favour. On the11th August, 1874, the plaintiff purchased the unexpired term ofthe lease and entered into possession, and possessed by himself orhis lessee for the rest of the period of the original lease, i.e., to16th May, 1890, and thereafter until 28th February, 1892, when hewas evicted by defendant. Martelis, eleven days subsequently tothis eviction (11th March, 1892), professed to sell to defendant theland by a deed which defendant registered on the following day,the 12th. On the 10th May, 1893, plaintiff obtained his Fiscal’sconveyance, and sued on the 5th September, 1893, for declarationof his title and ejectment of defendant.
Question has been raised whether the Fiscal, after the passing ofthe Civil Procedure Code, could legally have executed this con-veyance without the sale having been confirmed by the Court underthe provisions of section 283.
For the defendant it is submitted that the granting of theconveyance was a step in the procedure of the action, and that,as under section 3 of the Civil Procedure Code every actionpending in any court on the 1st August, 1890, should be proceededwith to final judgment and execution, under the provisions of theCode confirmation of the sale was necessary, since the Code hadrepealed the provisions of part 9, sections 47-58, of the Fiscals’Ordinance, Mo. 4 of 1867.
For the plaintiff it is contended that the right or privilege ofthe plaintiff to obtain this conveyance, and the liability of theFiscal to execute and grant it, was saved from repeal in his favourby section 2 of the Code.
I hold that the latter contention must prevail. It is not shownthat the action 4,567 was still pending on the 1st August, 1890.The last entry in its journal is of date 12th December, 1871, andapparently shows that the creditor then received payment insatisfaction of his decree.
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The plaintiff-purchaser, after the expiry of the thirty days forobjections, was in the same position as a purchaser who hasarrived at the stage provided for in section 286 of Civil ProcedureCode, and if in either case the result of the sale (and, underthe Code, its confirmation) has been the entire satisfaction of theclaim, the action is no longer “ pending ” and within the provi-sions of section 3. This procedure to execution terminatedunder No. 4 of 1867 on the expiry of the thirtieth day, when thesale was not challenged, and did not continue thereafter, viz., tillconfirmation of sale as under the Code, section 283. Consequentlythere was not any procedure to final execution necessary whichsection 3 should regulate and carry through.
Moreover, the right of the purchaser and the liability of theFiscal, whose authority is still derived under part I. of No. 4 of1867, still continued when this conveyance was executed. It hasnot been shown that the purchaser failed to pay according to theconditions and complete his purchase—rather the contrary ; andthe right and corresponding obligation under section 56 are clear,and are saved in plaintiff’s favour by section 2 of the Code. It ishowever submitted that the plaintiff did not supply stampedpaper for the conveyance in his favour when he paid the purchase-money in full; but it is not shown that the Ordinance in such acontingency and for such omission nullified the sale or gave theFiscal right of parate execution—section 51 did not so provide,nor did the Ordinance prescribe what would result upon suchdefault other than what we may suppose possible,—that theFiscal might either decline to execute the conveyance till thestamps were supplied, or supply them, and tendering delivery ofthe executed deed require payment of their value, if necessary, byaction for that purpose.
The judgment should therefore be set aside, and the first issuedecided in favour of plaintiff.
GABRIEL APPUHAMY v. PELIS PERERA APPUHAMYet al