079-NLR-NLR-V-34-LETCHIMAN-CHETTY-v.-SAMITCHI.pdf
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DALTON J.—■Letchiman Chetty v. Samitchi.
1932Present: Dalton and Akbar JJ.
LETCHIMAN CHETTY v. SAMITCHI.
56—D. C. . (Inty.) Galle, 29,221.
Fiscal’s sale—Application to set aside by . judgment-creditor who has nottaken out writ—No interest in property sold—Civil Procedure Code, s. 282.
A judgment-creditor, who has not taken out writ at the date at whicha sale is held in execution of a judgment in favQur of another judgment-creditor, is not a person having an interest in the property sold withinthe meaning of section 282 of the Civil Procedure Code, as would entitlehim to apply to Court to have the sale set aside.
.A. PPEAL from an order of the District Judge of Galle.
N.E: Weerasooria, for appellant.
V. Perera, for respondent.
September 13, 1932. Dalton J.—
The appellant in this case was the petitioner in the Court below andsought to set aside a sale of certain property under the provisions ofsection 282. The learned District Judge found that he was not a personwho had any interest to make the application under that section anddismissed his application. In case, however, he should have been
DALTON J.—Letchiman Chetty v: Samitchi.
307
■wrong on that particular point he went on to deal with the facts to whichit will not be necessary for me to refer apart from setting out certainfacts which concern the provisions of section 282.
The decree-holder in D. C., Galle, case No. 29,221, issued writ to recoverthe sum of Rs. 1,148.78 and costs. The Fiscal had in his hands at thesame time other writs, one of which was for the sum of Rs. 18,000. Heseized certain properties belonging to the judgment-debtor which aresaid to have been assessed at Rs. 30,000. They were sold on September19, 1931, but only the sum of Rs. 4,120 was realized. The petitioner-appellant was judgment-creditor in another case against the samejudgment-debtor, in D. C., Galle, case No. 28,987. He obtained hisjudgment on April 30, 1931, for the sum of Rs. 2,577 and costs, but hedid not apply, so far as the facts appear from the record before us, forthe issue of a writ until October 21, 1931, which was more than onemonth after the sale. The writ was eventually issued on December3, 1931. It appears that it was admitted in the lower Court, and thiswould appear to be confirmed by the appellant’s petition of appeal,that he was not entitled to concurrence in the proceeds of the sale underthe provisions of section 352 of the Code. He has applied, however,to have the sale set aside under section 282 as a person having aninterest in the prpperty.
No authority has been cited to us by counsel for the appellant to theeffect that the term “interest” as used in section 282 would applyto a person who has merely obtained a decree against the judgment-debtor. It is urged on behalf of the appellant that inasmuch as hehad at the time of the sale a decree against the judgment-debtor he hadan interest, as I understand the argument, in the property of the judg-ment-debtor. None of the three cases cited supports the appellant’scontention. In the case of Perera v. Brito1, the case referred to by theDistrict Judge, the petitioner was a person who at the time of the salehad in fact seized the land in execution and his writ was in the hands ofthe Fiscal at the time of the sale, although the Fiscal purported to sellthe land under one writ' only. That case in no way helps the appellant.In the other case, Karuppen Chetty v. Habibo2, it is quite clear that theperson who applied to have the sale set aside was one of the heirs of theestate who had a vested interest in the property sold. Another casereferred to was the case of Chetty v. Pulles. In that case Lawrie J.held that every judgment-creditor who has applied for the executionof a decree against the same judgment-debtor and has not obtainedsatisfaction has an interest in the property of his debtor sold underanother writ. That case, however, does not help the appellant herebecause at the earliest his application for the issue of a writ was onOctober 21, 1931, a date, as I said before, more than one month afterthe sale. Therefore, taking that judgment to be correct, at the timethe appellant made his present application he had no' interest in theproperty that was seized and sold. No other authority has been citedto us, and in my opinion the petitioner-appellant has failed to showthat at the time that this property was sold he had any interest in thei iY. L. R. p. v2.'2 22 N. L. R. p. 234.
35. C. R. p. 41.
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DALTON J.—Macpherson v. Peiris.
property which would entitle him to apply to the Court under theprovisions of section 282 to set aside the sale. The learned DistrictJudge was right and it is not necessary, therefore, to consider thefurther matters referred- to in his judgment.
The appeal must be dismissed with costs.
Akbar J.—I agree.
Appeal dismissed..