113-NLR-NLR-V-22-ISMAIL-v.-RATNAPALA.pdf
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1B20.
Present: De Sampayo J.
ISMAIL v. RATNAPALA.
138—C. R. Oalle, 1,930.
Sale by order of Court under the Entail and Settlement Ordinance—Misdescription—Sale set aside by Court—Action against auctioneerby purchaser for refund of commission.
“ It is to the party at whose instance a sale takes place that thepurchaser must look for repayment, not only of the purchase money,but of the expenses and charges if the sale becomes abortive.”Where a purchaser sued the auctioneer for return of commissionand charges paid by purchaser,
Held, in the circumstances of the case, that he was not entitled toreoover same from the auctioneer.
r 11HE facts appear from the judgment.
De Zoysa, for plaintiff, appellant.
Jayawieh'&me, for defendant, respondent.
September 17, 1920. De Sampayo J.—.
The decision of the question involved in this action dependspartly on facts and partly on law. It appears that an order wasmade by the District Court under the Entail and Settlement Ordi-nance, 1876, for the sale of half of a certain house, and the defendant,an auctioneer, was appointed to carry out the sale. The sale asadvertised by the defendant was half, not only of the house, but ofthe land on which it stands, and the plaintiff became purchaser atthe sale, and in accordance with the conditions of sale, he paid Rs. 76for the defendant’s commission and charges. On account of themisdescription of the property to be sold, and also because theSeoretary of the Court, in whose presence the sale was, accordingto the Court’s directions, to have been held, was absent at the sale,the District Court set aside the sale. The plaintiff now sues thedefendant to recover the sum of Rs. 76 paid to the defendant as hiscommission and charges. The Commissioner of Requests dismissedthe plaintiff’s action, holding that the defendant in the circum-stances of the case was not liable.
We are not now concerned with the reasonableness of the groundson which the Court set aside the sale, but the circumstances arerelevant to the question of the defendant’s liability. The absenceof the Secretary at the sale can hardly be a sufficient reason fordepriving the defendant of his commission and the expenses incurred
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by him. As regards the description of the property, the conditions 1920.
of sale which were submitted to and approved by the Court contained
the same description, and the applicant for the sale and the Court * jf
were as much responsible for the mistake of the defendant. More-
over, the plaintiff was not in any way misled. It was admitted by iwnapaia
him in this case that he knew that he was buying half the house
only. Indeed, in the proceedings under the Entail and Settlement
Ordinance he resisted the setting aside of the sale, stating that he,
in fact, bought half the house, exclusive of the soil. Nor was the
misdescription intentional on the part of the defendant. It appears
that the house stood partly on one land and partly on another, and
in the endeavour to specify it he gave descriptions which, when
literally read, included the lands. It should further be noted that
one of the conditions of sale was that “ if any unintentional error or
misstatement shall havebeenmade in the description of the property,
the same shall not vitiate the sale, and the auctioneer shall not be
responsible.”
The Court might well have confirmed the sale, because the ownerswould have been benefited by the misdescription rather thanotherwise, and because the actual purchaser himself said he wasnot prejudiced and opposed the cancellation of the sale.
In view of all these facts it does not seem equitable to compel thedefendant to refund the money unless there is some distinct rule oflaw to the contrary. I am not aware of such a rule of law.
Principle appears to me to suggest, on the other hand, that it is tothe party at whose instance a sale takes place that the purchasermust look for repayment, not only of the purchase money, but of theexpenses and charges if the sale becomes abortive. In No. 104, -Interlocutory, D. C. Colombo, No. 45,7s!,1 which was the case of anexecution sale, this Court held that the purchaser was entitled torecover from the execution-creditor the amount of fees and chargespaid to the auctioneer. I do not see much difference between anexecution-creditor and a party on whose application the Courtmakes an order for sale of entailed property.. In any event I amunable to discover any authority for depriving the auctioneer of thecommission which has been received by him for his services and ofthe necessary charges incurred by him, and I am not disposed tointerfere with the dismissal of the plaintiff’s action.
The appeal is dismissed', with costs.
Appeal dismissed.
1 S. C. Mm., Nop. 29,1919.