COURT OF APPEAL.
DR. GUNAWARDANE, J(P/CA)
DE SILVA, J.
C. COLOMBO 14441/PMARCH 29,1996.
Partition – Partition Law 21 of 1977 – S.43,47,409,415 of the Civil Proce-dure Code – Sale by Public Auction – Money deposited in Bank Account -Vacant Possession taken over – who is entitled to the Interest upto date oftaking over of Possession?
The Plaintiff Petitioner was declared entitled to undivided 3/4 share andthe Defendant-Respondent to the balance 1/4 share. Court made order forthe sale by Public Auction of the Corpus first between the Petitioner andthe Respondent. At the Public Auction, the Petitioners' bid was acceptedand he on 22.2.93 deposited the said sum in Court in a Savings Account.The Possession of the Corpus, was obtained by the Petitioner on 16.12.94.The Petitioner thereafter on 19.1.95 moved Court without notice to the Re-spondent, that interest lying to the Credit of the case which had accrued inthe Savings Account upto 31.12.94 be paid to him. The District Court with-out inquiry allowed this application and as a result Rs. 380,082.15 waswithdrawn by the Petitioner. However the Respondent moved Court on19.5.95 praying that the Petitioner be directed to bring into Court the amountof interest so withdrawn. The Court after inquiry directed the Plaintiff Peti-tioner to bring into Court the said amount. The Plaintiff Petitioner seeks torevise this order.
It is to be noted that no sooner that Petitioner had deposited the saleproceeds into Court he fulfils his obligations and it is the duty of Court tohold that money on behalf of the beneficiary-the Respondent.
S.47 of the Partition law has no application, because S.47 deals withclaim of several parties.
S409-415 of the Civil Procedure Code are also not applicable. Thesesections apply to actions filed by a Plaintiff against a Defendant arisingout of money claims on account of a debt or damage. The present action isnot an action filed by the Respondent to recover a debt or damage.
Per De Silva, J.
"The order permitting the withdrawal of interest was made on 1.3.95 by anexparte application which had caused grave prejudice to the Respondent,the Respondent had correctly invoked the jurisdiction of the District Courtwhich made the said order to obtain relief".
APPLICATION in revision from the order of the District Court of Colombo.
R.Manikkavasagar for Petitioner.
S.Mahenthiran for Respondent.
Cur. adv. vult.
J.A.N. DE SILVA, J.
This is an application for revision against the order of the learnedDistrict Judge dated 10.10.95 wherein she has directed the PlaintiffRespondent Petitioner (hereinafter referred to as Petitioner) to deposita sum of Rs. 380, 082./15 in Court. The said sum was the accruedinterest of the purchase price deposited in Court of the 1/4 th sharepurchased by the Petitioner.
The Counsel for both Parties agreed that this matter be decided onthe written submissions. The facts relevant to the application are asfollows.
In the Partition action No: 14441/P the Plaintiff Petitioner was de-clared entitled to an undivided three-fourth (3/4 th) share and the De-fendant-Respondent the balance one fourth (1/4 th) share of the landand premises which was the subject matter of the action.
On the 26th of November 1992 the District Court of Colombo madeorder for the sale by Public Auctioi i of the Corpus first between Peti-tioner and the Respondent at the upset price of Rs. 300,00/- per perch.The Court also made order that if the corpus could not be sold at orabove the upset price then the auction should take place in Public.
The Public Auction took place on the 19th of January 1993 and thePetitioner made his bid for the 1/4th share of the Respondent at a price
of Rs. 1,556,250.00 at which price the auction was concluded. One ofthe conditions of sale was that the purchase money should be depos-ited in Court to the credit of the case. Accordingly, the petitioner on22.02.93 deposited the said sum of Rs.1.556,250.00 in Court and thesame was held by Court in the Savings Account 502652 at the PettahBranch of the National Savings Bank.
On 26.02.93 the Petitioner filed an application in Court for delivery ofpossession of the portion of the corpus belonging to the Respondentwhich was in the possession of persons claiming to be tenants underthe Respondent. The inquiry into these matters took place on severaldates and finally possession of the entire corpus was obtained by thePetitioner in December 1994.
After the Plaintiff-Petitioner obtained vacant possession of the Cor-pus, on 19.01.1995, the petitioner filed a motion without notice to theRespondent, alleging that he had obtained vacant possession of thecorpus on 16.12.94 and moved that the interest lying to the credit ofthis case which had accrued in the savings account upto 31.12.94 bepaid to the Petitioner.
The Court without inquiry allowed this application and as a resultRs. 380,082.15 was withdrawn by the Petitioner on 07.03.95 by pay-ment order No: D 147432 (Journal Entry No: 133).
When the Respondent became aware of this he filed Petition andApplication and moved the District Court on 19.05.95 praying that thepetitioner be directed to bring into Court the amount of interest sowithdrawn.
The District Court inquired into this matter inter partes. Petitionerfiled objections and after written submissions were tendered by thecounsel for the parties the Trial Judge on 10.10.95 made order direct-ing the plaintiff petitioner to bring into Court the amount of interest sowithdrawn.
Present revision application is against this order. The counsel forthe Petitioner submitted that the Respondent is entitled to claim onlythe purchase price and not the interest as the money was depositedunder section 43 of the Partition Law No: 21 of 1977 Section 43 readsthus:
“The purchaser of the land or, where the land was sold in lots, thepurchaser of each lot shall pay into Court the money realized bythe sale of the land or of that lot in conformity with the conditionsprescribed and the orders issued by the Court under section 39"
In the instant case the plaintiff purchased the 1/4th share of theRespondent at the auction sale on 19.01.93 for a sum of Rs.1,556,250.00 and paid the purchase price into Court in satisfaction ofthe Respondents claim as provided for in section 43 of the PartitionLaw No:21 of 1977.
It is to be observed that under the Partition Law No:21 of 1977 whena decree for the sale of the common property is given it shall be lawfulfor the Court to issue a commission for the sale of such property bypublic auction to the highest bidder. The purchaser should pay intoCourt the amount of the purchased money according to the conditionsof sale.
Upon the confirmation of the sale the purchaser is entitled to a cer-tificate under the hand of the Judge of such Court and this certificatewill be evidence in any Court of the purchaser's title without any deedof transfer from the owners.
It is to be noted that no sooner the petitioner had deposited the saleproceeds into Court he fulfils his obligations and it is the duty of theCourt to hold that money on behalf of the beneficiary. In this case itwas the Respondent who was the beneficiary of the proceeds of sale.
Counsel for the Petitioner also sought to bring his case under sec-tion 47 of the Partition Law No:21 of 1977. Section 47 reads thus:
"(1)The Court shall cause to be prepared by a party named by theCourt a schedule of distribution showing the amount which eachparty is entitled to withdraw out of the money deposited in Court.
(2) No money shall be withdrawn from Court by any party until theschedule of distribution has been approved by the Court.
(3) A party entitled to compensation in respect of a plantation or abuilding or otherwise shall share proportionately with the otherparties in any gain or loss, as the case may be, resulting fromthe sale of the land at a figure above or below the value deter-mined by the Court under section 38."
It is my view that section 47 of the Partition Law No:21 of 1977 hasno application to the instant case because section 47 deals with claimof several parties. Counsel for the Petitioner also has submitted thatwhen money is paid into Court it is done under Chapter XXVII of theCivil Procedure Code. He drew the attention of Court to section 409-415 of the Civil Procedure Code.
Section 409 reads as follows “The defendant in any action broughtto recover a debt or damage may, at any stage of the action deposit inCourt such sum of money as he considers a satisfaction in full theplaintiffs claim. Section 411 states that "no interest shall be allowed tothe plaintiff of any sum deposited by the defendant from the date of thereceipt of such notice. Whether the sum deposited be in full sum of theclaim or fall short thereof.
Section 415 reads thus "the enactment, of this Chapter shall applymutatis mutandis to the case of payment of money into Court made byany party to the other, in satisfaction of the claim of any other party."
It is my view that these sections of the Civil Procedure Code applyto actions filed by a plaintiff against a defendant arising out of “moneyclaim on account of a debt or damage." The present action is not anaction filed by the Respondent to recover a debt or damage, Thereforethese provisions have no application to this case which has been insti-tuted under the Partition Law, which is a special Law.
The order permitting the withdrawal of interest made on 01.03.1995was an exparte application which had caused grave injustice to theRespondent. The Respondent has correctly invoked the jurisdiction ofthe District Court which made the said order to obtain relief.
In the circumstances we see no reason to interfere with said Orderof the learned District Judge. Accordingly the said dated 10.10.1995is hereby upheld and this application of the Petitioner is dismissedwith costs fixed at Rs. 2500/-. The order in this application will beapplicable to the leave to appeal application No:224/95 and the saidapplication is dismissed without costs.
DR. GUNAWARDANA, J. (P/CA) -1 agree.
LAFIR v. GUNAPATHY