Kandavanam and Chelliah.
4954Present: Soertsz and Jayetileke JJ.
KANDAVANAM, Appellant, and CHELLIAH et al., Respondents.
11—D. C. Point Pedro, 1,478.
Fiscal’sconveyance—Propertysold under twowrits—Seizureunregistered—
Two competing Fiscals'conveyances—Priority—CivilProcedure Code,
Where the same property is seized and sold under two writs andneither seizure is registered, the purchaser under the writ upon which theproperty was first sold is entitled to priority by reason of the retroactiveeffect given to his Fiscal's conveyance under the provisions of section289 of the Civil Procedure Code.
PPEAL from a judgment of the District Judge of Point Pedro.The facts appear from the argument.
N. Nadarajah, K.C. (with him H. W. Thambiah) for the seconddefendant, appellant.—There is a competition in this case between twoPi seals’ conveyances of a land which belonged to one Kumarasamy.Deed P2 which is the transfer in favour of the plaintiff is dated February14, 1940, and 2 D 2 which is the transfer in favour of the appellant isdated March 5, 1940. The Fiscal’s sales, however, to the plaintiff andthe appellant took place on August 12, 1939, and November 17, 1938,respectively. The seizures which preceded the two sales were, neither ofthem, registered. On the authority of Aserappa v. Weeratunga et al.1,Pikiri Banda v. L/oku Banda et al.* and Juan Appu v. Weerasena 3 2 D 2is entitled to prevail over P 2.
1 (1911) 14 N. L. R. 417.3 (1911) 15 N. L. R. 63.
(1917) 20 N. L. R. 30.
SOEBTSZ J.—Kandavanam and Chelliah.
S. J. V. Chelvanayagam, for the plaintiff, respondent.—P 2 is theearlier document and is Entitled to prevail over 2 D 2. Sections 238 and289 of the Civil Procedure Code (Cap. 86) have to be read together.The rule of relation back •will apply only if the seizure had been registered.In the present case both the seizures were not registered. The materialdate, therefore, is the date of the Fiscal’s conveyance. See Hendrick' Singho v. Kalanis Appu et al.1; Velupillni v. Marimuttu et al.z; Hendrickv. Deen et al.3. Section 238 of the Civil Procedure Code, in its presentamended form, would apply not merely to private alienations but also toFiscals’ sales.
N. Nadarajah, K.C., in reply.—The rule of relation back does notdepend on the date of seizure. Under section 289 of the Civil ProcedureCode the grantee in a Fiscal’s conveyance is deemed to have been vestedwith the legal estate from the time of the sale, and not from the time ofthe seizure.
Cur. adv. vult,
September 7, 1944. Soertsz J.-—
The relevant- facts for the consideration of this appeal are these.One Kumarasamy admittedly owned two-thirds of the land in questionin the case. He was allowed to appear and defend Claim 541 P (D. C.Jaffna) on condition that he gave security in a sum of Ks. 450. For thispurpose he hypothecated with the Secretary of the Court half of his two-third share. The bond was not registered. His defence in that casefailed and the plaintiff in that case, who is also the plaintiff now before us,in execution of his decree in that case seized this share. This seizure wasnot registered. The share was sold by the Fiscal on August 12, 1939.The sale was confirmed- on December 3, 1939, and the Fiscal’s conveyancewas made in his favour on February 14, 1940.
The appellant himself had sued Kumarasamy in another case and inexecution of the decree he obtained in that case, he seized the entire two-third share of Kumarasamy. This seizure too was not registered. Theshare was sold on November 17, 1938. The sale was confirmed andFiscal’s transfer to him in respect thereof was made on March 5, 1940.A conflict has thus arisen between the plaintiff-respondent and theappellant in respect of a one-third share and the question is who has thebetter title to that share ?
As already observed neither seizure was registered. It follows there-fore, that section 288 of the Civil Procedure Code has no application,for that section renders void “ any sale, conveyance, mortgage, lease ordisposition of the property seized, made after the seizure and registrationjofthe notice of seizure and while such registration remains in force ”. Here,there was no registration of the seizure and, consequently, the course wasclear, so to speak, for the debtor to dispose of the property in any wayhe chose, to the extent to which he had a disposing power over it, or forthe Fiscal to sell, in execution, the debtor’s title such as it was. Thetitle of the purchaser in either event would be just that of the debtor.
1 (1921) 23 N. L. R. 8b.3 (1921) 22 N. L. R. 281.
(1916) 3 C. W. R. 205.
VVlJifi Y Hi VVABDENE J.—Thampillai and Alatora Police.
In the Divisional Bench case of Aserappa v. Weeratimga x, Wood-Renton J. observed as follows:—“ By virtue of that'Section (289) SophiaBatnayake was divested of her life-interest in, the property as from June10, 1907, and the appellant could derive no right to it through his purchasein execution against her on February 5, 1908
In this case also the competing titles are derived from the same sourceand in the same way, that is through Fiscals’ conveyances. The plaintiff'sconveyance is earlier in date than the appellant’s but in view of theretroactive effect given, in a case like this where neither seizure wasregistered, hy section 289 of the Civil Procedure Code, the appellant’stitle dates back to November 17, 1938, as against the plaintiff’s titlewhich “goes back to August 12, 1939. There is no question here ofpriority by registration of the Fiscal’s transfer arid the appellant mustsucceed. I would allow the appeal with costs.
Jaybtileke J.—I agree.
KANDAVANAM , Appellant, and CHELLIAH et al., Respondents