049-NLR-NLR-V-19-HAMIDU-v.-KIRIHAMY-et-al.pdf
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Present: Ennis J.. and Schneider A.J.
HAM1DU v. KIRIHAMY et al
67—D. C. (Inty.) Kurunegala, 4,971.
Self in execution—Subst ■- t reversal of decree.
A sale having duly taken place in execution of & decree valid atthe time cannot afterwards be set aside as against a bona fide^purchaser not a ]. “ty to the decree, on the ground that the decreehad been, subsequently to the sale, reversed.
T T NDER a decree °f the Court of Requests of Colombo the landin claim, wh’ch is situate within the jurisdiction of theDistrict Court of K<. —egala, was seized upon writ and sold by theFiscal and purchased by Kiri Banda, a person other than theexecution-creditor. ■ sale was confirmed and a Fiscal’s transferissued to the purchaser, who thereafter sold it to the plaintiff.
Two years after these transactions the decree of the Court ofRequests, ’ Colombo, was reversed for want of territorial jurisdiction.The defendants-appellants pleaded that the Fiscal’s sale passed' no-title to the purchaser, inasmuch as the decree on which the salewas held was set aside.
The parties went to trial on the following issues: —
Are the ■ rights acquired by the plaintiff through the sale ■
in execution of the decree in C. R. Colombo, caseNo. 23,526, affected by the circumstance of the saiddecree having been subsequently set aside, in view of thefact that the sale in execution was confirmed before thedecree was set aside?
Are those rights unaffected by the setting aside of the
decree b reason of the fact that the purchaser was notmade a party to the proceedings for setting aside thedecree?
Had th' Court of Requests of Colombo in case No. 23,526
jurisdiction to confirm the sale in execution?
Has this Hourt jurisdiction to try the issue whether the
Fical’s sale pleaded by the plaintiff (if there was sucha sale) is liable to be set aside on the ground of fraud,in that the present plaintiff was acting in collusion withthe exec ition-creditor and purchaser, and obtaining adecree' and Fiscal’s tansfer without sale?-
The District Jud^s (G. W. Woodhouse, Esq.) answered the firstth^ee issues in favour of the .plaintiff, and the last in favour of, thedefendant, and in the result entered judgment in favour of the-plaintiff.
The defendants appealed.
1916..
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1916.K. W. Jay e war dene, for the appellants.—The Fiscal’s sale in
Hamidii v. question was a nullity, inasmuch as the proceedings in the Court ofKirihamy Requests of Colombo, which passed the decree (which led to the sale),were void ab initio, The Court of Requests has itself held that ithad no jurisdiction to try the case in which writ issued. Moreover,no summons had been served on the defendants in that case. If adecree is reversed because a Court has no jurisdiction there is dojudgment, and everything done on the basis of existence of the judg-ment falls, and the sale is void. Counsel cited 32 Cal. 296; 38 Cal.622, Hukm Ghand 397; Bose’s Digest, vol. V., p. 11414; Bampini(6th ed.) 521; 15 All. 324; 12 Sutherland W. R. 72.
Canakeratne (with him Bawa, K. G.t Allan Drieberg, and A. St. V.Jayewardene), for respondent.—The respondent is a bona fidepurchaser from Kiri Banda, who purchased at the Fiscal’s sale. IfFiscal’s sales are to be invalidated on grounds like these, no one willcare to buy at Fiscal’s sales. The Privy Council has-held that a salein execution is not invalid merely because the judgment whichled to the writ and sale was set aside in appeal. See 10 All. 166.
E. W. Jayewardene, in reply.
Cur. adv. vult.
July 5, 1916. Ennis J.—
In this case the plaintiff claimed title to an undivided share of alfind called Ibalakumburaismattewatta. The plaintiff purchasedfrom one Kiri Banda, who purchased at a Fiscal’s sale held inexecution against Bandara Menika, Ran Menika, and Sambalingam.The learned District Judge on certain preliminary issues held infavour of the plaintiff, and fixed a date for trial of the remainingissues. It is contended for the appellants that the decree underwhich the land was sold by the Fiscal having been set aside on theground that the Court had no jurisdiction the sale was null and void.It is admitted that the failure of jurisdiction was “ territorial.
It seems to me to be unnecessary to go at length into the casescited to us, as one Zain-ul-abdin-khan v. Muhammad Asghar AliKhan and others,1 decided by the Privy Council is directly in point.It was there held that a sale, having duly taken place in executionof a decree valid at the time, cannot afterwards be set aside asagainst a bona, fide purchaser, not a party to the decree, on theground that the decree had been, subsequently to the sale, reversed.In that, case the decree, as far as it was set aside, was set aside onthe ground that the original Court had no jurisdiction, as the causeof action did not arise within the territorial limits of the Court.
In my opinion the decision of the learned District Judge is right forthe reasons which he has given. I would dismiss the appeal with costs.
Schneider A.J.—lagree.
Appeal dismissed.
i 1. L B. 10 All. 160