KANDIAH, Appellant, and VAIRAMUTTU and others, Respondents

001-NLR-NLR-V-60-KANDIAH-Appellant-and-VAIRAMUTTU-and-others-Respondents.pdf


THE
NEW LAW REPORTSOF CEYLONVOLUME LX
1958Present: Basnayake, C.J., Pulle, J., and Sansoni, J.KANDIAH, Appellant, and VAIRAMUTTU and others, Respondents
S.C. 765—D. C. Jaffna, 11509
Execution of decrees—Decree to pay money—Issue of writ to Fiscal to sett judgmentdebtor’s immovable property—Satisfaction of decree thereafter—Power of Fiscalto stay sale otherwise than upon order of Court—Right of judgment debtorto have Fiscal’s sale set aside—Civil Procedure Code, ss, 226, 226, 237, 23S,239, 255, 256, 258, 259, 342, 343, 349.
Proctor and client—Proxy unrevoked—Power of client to act in person.
When writ is issued for the sale of immovable property in execution of a decreeto pay money, the authority of the Fiscal does not automatically cease upon themoney payable under the decree being paid or the decree being otherwise ad-justed in whole to the satisfaction of the decree holder. The Fiscal has nopower to stay the sale otherwise than upon an order of Court.
Accordingly, the judgment debtor is not entitled to have a Fiscal’s sale setaside on the ground of satisfaction of the decree by payment prior to the date ofsale, when there is no proof that the Court itself ordered stay of execution.
Once a proxy is given to a Proctor by a party, the party himself cannotwithout revoking the proxy perform in person any act in Court.
^LPPEAL from a judgment of the District Court, Jaffna.
Renganathan, with M. ShanrrmgaUngam, for Purchaser-Appellant.
Nagendra, with Neville Wijeratne, for Defendants-Respondents.
Cur. adv. mdt.
July 22, 1958. Basnayake, C.J.—
The question that arises for decision on this appeal is whether theauthority of the Fiscal, to whom a writ has issued for the execution of adecree by seizure and sale of the judgment-debtor’s immovable
1;i,x
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r. N. B 26020—1,598 (9/58)
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BASNAYAKE, C.J.—Kandiah v. Vairamuttu
property, automatically ceases upon the money payable under thedecree being paid or the decree being otherwise adjusted in whole tothe satisfaction of the decree holder.
Shortly the facts are as follows : On 23rd September 1954 the secondplaintiff obtained judgment against the defendants in a sum ofRs. 1,104/40 together with interest on that sum at 5% per annumfrom 23rd September 1954 till payment in full. As the defendantsfailed to satisfy the judgment debt the plaintiffs applied for writ ofexecution for seizure and sale of the property of the defendants.
The writ dated 1st June 1955 authorised the Fiscal to seize and sellthe lands, goods, debts and credits of the defendants for the recoveryof the sum of Rs. 1,104/40 with interest thereon at 5°,', per annum from23rd September 1954 till payment in full and costs of suit Rs. 179/92.The writ was executable on or before 1st June 1956 and the Fiscal wasrequired to inform the Court for what sum or sums and to what personor persons he sold the property of the defendants.
It would appear from the sale reports and the evidence of theAdditional Deputy Fiscal that on 31st August 1955 two lands wereput up for sale but that there were no bidders for one of them. Asthe sale of land No. 2 did not realise the full amount of the decree theFiscal oil 8th February 1956 issued a fresh sale notice in respect ofland No. 1 fixing the sale for 19th March 1956. The journal entry of16th March 1956 shows that the plaintiffs in person submitted thefollowing writing to the Court:—
“ We Kathiran Sinnavan and wife Manickam the plaintiffs in thecase have this day received the full amount of the decree interest andcosts due to us from the Defendants in this case and hereby begthat the Court be pleased to order the sale fixed for 19th March 1956by the Fiscal, N. P., Jaffna be ordered to be stayed.”
The learned District Judge ordered that they should move throughthe proctor who had been appointed to act for them in the case but theydid not do so and the land was sold on 19th March 1956 for Rs. 775/-.The defendants were not present at the sale. A stranger informed theFiscal that the money due on the decree had been paid, but as the Fiscalhad no authority from the Court to stay the sale he proceeded with it andmade his report to the Court on 23rd March 1956.
On 23rd April 1956 the defendants through their proctor moved theCourt to have the sale held on 19th March 1956 set aside on the groundthat “ there is material irregularity in the conduct of the sale and therewere other circumstances by which the sale was vitiated”. The learnedDistrict Judge has allowed the application of the defendants to have thesale set aside. In his order he states :
“It seems to my mind that on 16.3.56 whea the Plaintiffsfiled their motion in person that they had received the balance amountdue on the decree, satisfaction should have been entered on that dateand the Fiscal directed not to proceed with the sale. At any rateafter that motion was filed on 16,3.56 there was no decree to beexecuted.” ,
BASNAYAKE, C.3.~Kandiah v. Vairwmuttu
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The first question that arises for decision is whether the plaintiffs werein law entitled to certify payment in person under section 349 of the Codewhen they had appointed a proctor to act for them. It is well establishedthat once a proxy is given to a proctor the party himself cannot withoutrevoking the proxy legally perform in person any act in Court. In theinstant case the learned District Judge very correctly ordered the plain-tiffs to move through the proctor whom they had appointed to act forthem in these proceedings. They did not do so. The position thenis that there had been no proper certification of payment as contemplatedin section 349 of the Code.
In the instant case even if the proctor of the decree holder had certifiedpayment there is nothing in section 349 or any other section of theCode which provides that upon such certification a writ of executionautomatically ceases to be in force.
A judgment-creditor has the power (section 218 of the Civil ProcedureCode) to seize and to sell or realise in money by the hands of the Fiscalsubject to certain exceptions (section 218 C. P. C. proviso) all saleableproperty, movable or immovable, belonging to the judgment-debtorwhen a decree to pay money is unsatisfied. For the purpose of effectingthe required seizure and sale the Fiscal must be put in motion by appli-cation to Court for execution of the decree (section 223 C. P. C.). Theapplication must satisfy the requirements of section 224 of the Code andcontain the particulars prescribed therein.
Upon an application for execution of decree being made, the Courtmust satisfy itself by reference, if necessary, to the record that the ap-plication is in conformity with section 224 and that the applicant isentitled to obtain execution of the decree (section 225 (I) C. P. C.).If it is so satisfied it must direct a writ of execution to issue to the Fiscalin the prescribed form (section 225 (3) C. P. C.). Upon receiving the writthe Fiscal must within the prescribed time proceed to the house of thedebtor and request him, if he is present, to pay the amount of the writ.
If the debtor does not comply with his demand the Fiscal is under aduty to forthwith seize and sell such property of the judgment-debtoras is specified in the writ or may be pointed out to him by thejudgment-debtor or the judgment-creditor.
Where the property to be seized and sold is immovable property as inthe instant case the seizure must be effected in the manner prescribedby section 237. A notice of seizure is an instrument that can be registeredunder the Registration of Documents Ordinance and section 238 providesthat any sale after the registration of the notice of seizure is void asagainst a purchaser from the Fiscal in a sale under the writ of execution.The Fiscal is not free to withdraw a seizure except upon an order undersection 239 of the Code. That section reads :
“ If the amount decreed with costs and all charges and expensesresulting from the seizure of any property is paid into Court, or ifsatisfaction of the decree is otherwise made through the Court, or ifthe decree is set aside or reversed, an order shall be issued, on theapplication of any person interested in the property, for thewithdrawal of the seizure.”
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BASflfAYAKK, C.J.—Kandiak v. Vairamuttu
Before the sale of immovable property seized by the Fiscal he mustgive notice of the sale in the prescribed manner (section 255, II, C. P. C.)and must also advertise the sale when the property seized under one writexceeds the value of one thousand rupees (section 256 C. P. C.).
It would appear from section 258 that a sale, notice of which has beengiven in the prescribed manner, can be postponed or stayed at the requestor with the concurrence of the party suing out the writ. In such acase the Fiscal is entitled to recover half the prescribed fees from theparty at whose instance the writ is stayed.
A sale once fixed can be postponed only in the manner prescribedin the Code. Section 259 empowers the Court to postpone a sale to enablethe judgment-debtor to raise the amount of the judgment-debt bvmortgage, lease or private sale of the property seized or any other propertyof his. The Court is also authorised by section 343 to stay executionproceedings at any stage of it and make an order for adjournment of asale upon an application to it to stay proceedings to which all personsinterested in the matter are made parties and after payment of all Fiscal’sfees then due. The Fiscal is also given the discretion of adjourning asale (section 342 C. P. C.). This provision when read with sections239 and 343 cannot be regarded as conferring on the Fiscal a greaterpower than that of putting off the sale to another day owing to his inabi-lity to hold the sale on the day originally appointed either due to unforeseencircumstances or because of reasons beyond his control. In his returnto execution he has to refer to any adjournment of the sale by him andspecify the cause.
It would appear from the foregoing that the Code does not makeprovision for the automatic cessation of the Fiscal’s authority uponthe certificate of payment. Upon the certificate of payment the partyinterested in the staying of execution must make an application eitherunder section 239 or under section 343. Without an order of Courtdirecting the Fiscal to stay execution he has no authority to do so. Inthe instant case the parties interested did not obtain an order for thewithdrawal of the seizure or stay of execution from the Court.
The view I have taken finds support in the decisions of this Courtin the cases of Saparamadu Appuhamy v. M. C. K. Appuhamy et al.xand Upar is v. Subasinghe et al.2. In the earlier of these two eases Wendt
J.observed:
“ If the appellant can shew that, upon his making his tender, theFiscal was bound to stay the sale, I am disposed to think that the .Fiscal’s persisting in selling would be a material irregularity in con-ducting the sale. I do not, however, think that the Fiscal was sobound. Certainly no provision of the law to that effect was broughtto our attention. No doubt it is usual for a Fiscal, upon being paidhis charges, and requested by the writ-holder so to do, to stay anexecution sale; but he is the officer of the Court, acting upon themandate of the Court and although he may possibly be answerable indamages to the decree holder for refusing to comply with his request,
I cannot see that the judgment debtor is entitled to insist that the
(1909) 2 Weeralcocn 76, 2 Leader 251.
* (1917) 19 N. L. S. 468.
BASKAYAKE, C.J.—Kandiah v. Vairamultu
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Fiscal shall stay the sale, or when the sale has been carried outaccording to the exigency of the writ, to ask that it be set aside, tothe prejudice of the purchaser.”
In the second case Wood Renton G.J. stated—
“ The trend of judicial decisions in this Colony distinctly establishesthe proposition which is supported by the language of sections 342and 343 of the Civil Procedure Code, that a Fiscal has no legal powerto stay a sale otherwise than upon an order of Court. He may adjourn,the sale. It is no doubt customary for Fiscals or their Officers to staysales upon the application of parties to the proceedings, but they do so
at their own riskIt would be highly inconvenient if the right
of Fiscals or their officers to stay a sale of their own authority wererecognised. Section 226 of the Civil Procedure Code shows that, ifpayment is not made to the Fiscal or his officer by the judgment-debtor on the original demand before execution of the writ is proceededwith, the seizure and sale must follow so far as the Fiscal or his officeris concerned.”
In the case of Perera v. W icbremaratne1 Dalton A.C.J. expressedthe view that section 342 empowers the Fiscal to adjourn a salewhen clear and undisputed evidence is produced to him before thesale that the plaintiff’s claim has been satisfied and cash for his fees istendered. I find myself unable to agree with that view. If the Fiscalhas power to decide whether there is “ clear and undisputed evidence ”that the plaintiff’s claim has been satisfied and not hold the sale on theground that the plaintiff’s claim has been satisfied it would be a hollowmockery to fix another date for a sale which is never to take place.Section 239 makes it abundantly clear that where satisfaction of thedecree is made through the Court the proper course is for any personinterested in the property to obtain an order for withdrawal of theseizure.
Section 343 provides for the case of stay of execution proceedings inoases where for reasons other than the satisfaction of the judgment debta stay is asked for. In such a case the seizure remains, but the Courtmay make order for the adjournment of the sale. The view taken byDalton A.C.J. places upon the Fiscal functions vested in the Court bysection 239. He is not qualified to discharge such functions and itwould appear from the provisions of the Code which regulate the Fiscal’s• powers and duties that it was never intended that he should he calledupon to decide matters within the ambit of the Court’s powers. I agreewith the following observations of Wood Renton C.J. in Upar in »..Subasinghc (supra) :
“ Section 226 of the Civil Procedure Code shows that, if payment is-not made to the Fiscal or his officer by the judgment-debtor on theoriginal demand before execution of the writ is proceeded with, theseizure and sale must follow so far as the Fiscal or his officer is>concerned.”
1 (1933) 35 y. L. R. 183.2*J. X. B 29020 (9/5S)'
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BASNAYAKE, C.J.—Kandiah v. Vairamutlu
• Section 342 undoubtedly gives the Fiscal a discretion to adjourn a sale,for it reads :
“ The Fiscal may in his discretion adjourn a sale:
Provided that the date to which the sale is adjourned is published
in the same manner as was the original notice of sale ; and
Provided also that he report to the Court in his return to the writ
of execution, or sooner, the cause for which the adjournment was
made.”
But the exercise of his discretion is confined to matters of which healone is the best judge. It does not enable him to encroach on powersentrusted by the Code to the Court. It would be unwise to attemptto prepare an exhaustive list of the occasions on which his power of ad-journment may be exercised, but it is sufficient to mention that the Fiscalexercised the-discretion vested in him by the section when he adjournedthe sale of one of the lands seized by him when there were no bidderson 31st August 1955.
The Fiscal is an officer of the Court charged with the duty of executingthe writ issued by it. So long as the writ is in force he is bound to executeit unless he is ordered by the Court not to do so. His power of adjourn-ment of a sale is not meant to be exercised for purposes for which itwas not designed. Riot, civil commotion, floods, pestilence, suddenillness of the Fiscal himself, show of force preventing the sale being held,are some of the occasions which would call for the exercise of his dis-cretion. I am unable to agree with the view expressed by Wendt J.in Silva v. Ibrahim Hauler1 that the Fiscal’s power to adjourn asale is confined to a case in which he has commenced the sale.There is nothing in the meaning of the word adjourn or in the contextin which it occurs that restricts it to a case in which the sale hascommenced.
The Court’s power to review the exercise of his discretion by the Fiscalwould be regulated by the well settled rule that if the discretion hasbeen exercised bona fide, uninfluenced by irrelevant considerations,and not arbitrarily or illegally, no Court is entitled to interfere even if theCourt, had the discretion been theirs, might have exercised it otherwise.”(Fraser’s case *)
The learned District Judge is wrong in holding that the sale is of no veflect and should not have set it aside. His order is therefore reversed.
The appellant is entitled to his costs both here and below.
Pulle, J.—I agree.
Saksoni, J.—I agree.
Appeal allowed-
1 (7906) 10 AT. L. B. 56.2 (1918) 4 D. L. B. 776—(1949) A. C. 24 at 36.