074-NLR-NLR-V-15-GOONETILLEKE-v.-GOONETILLEKA.pdf
( 272 )
1912.
Present: Lascelles C.J. and Wood Benton J.
GOONETILLEKE v. GOONETILLEKA.
24—D. C. Kalutara, 3,517.
Civil Procedure Code, ss. 282 and 344—Fiscal’s sale—Material irregu-larity—Application to set , aside sale.
Under the general law a sale can be impeached -on the ground offraud. An allegation of fraud ' in the conducting of the sale is aquestion arising between the parties to the action in pursuance ofthe decree in which the sale takes place, and it . must, therefore,under section 344 of the Civil Procedure Code, be determined bythe Court in the execution proceedings, and not by a separateaction.
fjl HE facts appear in the judgment.
A. St. V. Jayewardene, for the appellantBawa, K. C., for the respondent.
Gut. adv. vult.
March 20, 1912. Wood Benton J.—
This is an application by the petitioner-appellant to set aside aFiscal’s sale, held, in execution of an order of Court, on the groundof material irregularity in advertising and conducting the sale. Theorder to sell directed the Fiscal of the Western Province to .sell theproperty by public auction after giving twenty-one days’ previousnotice by affixing the order to the court-house and after due publica-tion at the site of the premises. The property was sold for the sumof Rs. 140. The appellant alleges that it is worth about Rs. 1,500.He alleged a great number of objections to the sale, but the onlypoints argued before us were: (1) That there had been no notifica-tion of the impending sale at the court-house as the order of theDistrict Judge directed; (2) that there had been no due publicationof the sale at the place where the property was situated; and (3)that the sale had been conducted by an officer who was not qualifiedto act in the matter, namely, a vidane arachchi, in whose divisionthe land sold was not situated.
The present case is one to which the provisions'of section 282. ofthe Civil Procedure Code cannot apply, inasmuch, as there was noseizure of the land in dispute, and the sale in fact took place under,a mortgage decree entered up by the Court under section. 201.
The. learned District Judge does, not seem*to have attached-muchcredit to the evidence adduced on behalf of the appellant to provethe real value of the .property. So far as one can form an opinion
( 273 )
from the written record, I am not myself impressed with the evidenceof Moradu Marikkar, who said that he was prepared to pay Es. 1,500ior it within three weeks. There is nothing to show affirmativelythat the order of the Court as to the sale was not affixed to thecourt-house. The vidane arachchi who conducted the sale saidthat he did not affix such a notice there, and added “ that ismot done by the Fiscal. ” I am not quite sure what these last wordsmean. But I think that it was the duty of the appellant to provethis objection if he relied upon it. For aught that appears on theface of the record, the notice may have been affixed to the court-house. Moreover, the learned District Judge has stated in hisjudgment that the petitioner did not rely on this objection at thetrial. We must, I think, take that statement to be accurate. Iwould hold that the first of the three objections above referred tofails. The next objection is an alleged absence of due publication•at the spot. We have the vidane arachchi’s evidence on the oneside, and that of the appellant’s witnesses on the other. If theformer is speaking the truth, and the learned District Judge hasbelieved him in preference to the appellant’s witnesses, there wasdue publication; and the comparatively low price at which theproperty was sold must have been due to other causes. Thequestion' involved in this objection are questions of fact and ofcredibility. I see no reason to differ from the finding of the learnedDistrict Judge in regard to it.
The last objection is, I think, plainly untenable. It was clearlyincumbent on the appellant’s counsel, even assuming that that wassufficient to enable him to succeed on the point, to show that theappointment of a headman of a division other than that in whichthe lands were situated to carry out the sale was not merely anirregularity, but a material one. There is no such evidence in thepresent case. The appeal.must, therefore, fail on all the points thatwere argued before us. But I desire to say a word on the argumentof the appellant’s counsel as to the scope of section 344 of the. CivilProcedure Code. He contended in effect that that section is anenactment of substantive law, and that, in cases which' do not fallunder section 282, it empowers a Court to set judicial sales asideunder any circumstances in which justice to the parties may requirethat to be done. At a later stage in his argument he put his caserather "on the ground that under Boman-Dutch law- judicial salescan be set aside on the ground of material irregularity, even if thereis not the affirmative proof required by section. 282, in cases towhich, it is applicable, that such material irregularity has been thecause of the prejudice of which the party attacking the sale com-plains (see Burge, 1st ed., vol. II., p. 578). It is unnecessary toexpress an opinion on the latter argument, since' the facts of thecase, as I interpret them, do not supply even proof of a materialirregularity. But I desire to guard myself from being supposed to
1912.
WoodRkoton J.
QoonetUleke
v.
GoonetUleka
( 274 )
1912.
WoodRenton J.
OoonetiUeke
v.
Goonetilleka
assent to the view of the scope of section 844 which the appellant’scounsel invited us to accept. I entertain very serious doubtswhether that section does enact substantive law, and whether- itdoes not merely provide that questions that arise legally betweenthe parties, either under the Code or under the common law, areto be dealt, with in the proceedings themselves, and are not to formthe subject of independent action. This is clearly the principle ofthe decision of the Privy Council in Prosunno Kumar Sanyal v.Kali Das Sanyal.1 Under the general law a sale can be impeachedon the ground of fraud. An allegation of fraud in the conductingof the sale is a question arising between the parties to the action inpursuance of the decree in which the sale takes place, and it must,therefore, under the section in the Indian Code of Civil Procedure(section 244 of the old Code and section 47 of the new), correspond-ing to section 344 of our Code, be determined by the Court in theexecution proceedings, and not by a separate action. I do not seethat the decision just referred to goes any further than this. Thesame observation applies to the other Indian cases to which wewere referred: Jagan Nath Qorai v. Watson and Companya andWahid-Un-Nissa v. Girdhari.3 The local case of Carpen Chetty v.Hamidu* relates only to the interpretation of the word “ parties ”in section 344, and has no bearing on the point now under con-sideration. No authority has been cited to us showing that section344 of the Civil Procedure Code itself enables a judicial sale to beimpeached on any ground whatever, or does more than regulatethe form under which questions as to its validity arising underother heads of the common law or the statute law are to bedetermined. I would dismiss the appeal with costs.
Lascelles C.J.—
I concur in the foregoing judgment, and in particular with thatportion which deals with the scope of section 344 of the CivilProcedure Code.
Appeal dismissed.
> (M92) 1. L. R. 19 Cel. 688.3 {1905) I. L. 8. 87 All. 708.
* 1892) I. L. R. 19 Cel. 341.* (1909) 1 C. L. R. 169.