055-NLR-NLR-V-06-MUTTU-CARUPPEN-CHETTY-v.-DE-MEL.pdf
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MUTTU CABUPPEN CHBTTT v. DE MEL.D. C., Colombo, 14,836.
1902.
October IS,and
1903.
Fiscal's sale of immovable property—Irregularities in holding sale—Application Pei/ruarv C.
to set aside the sale—Civil Procedure Code, s. 282—Meddlesomeness of
decree-holder—Laches of his agent.
Tn an application to set aside a Fiscal’s sale on the ground that theFiscal did not cany out the Judge’s order in that behalf made, that theselling officer did not start the sale at the value fixed by the Fiscal, andthat the property realized much less than the Fiscal's valuation,—
Held, that as the agent of the decree-holder had volunteered to deliverthe order of the Court to the Fiscal and had been guilty of grossnegligence and carelessness in performing the duty he undertook, thedecree-holder could not take advantage of the fault of his agent to setaside a sale which was otherwise regular.
T
HE facts of this case and the authorities cited in appeal areset forth in the judgment of his Lordship the Chief Justice.
The case was argued on the 15th October, 1902.
Morgan de Saram, for appellant.
H. J. G. Pereira, for respondent.
Cur. adv. wit.
6th February, 1903. Layabd, C.J.—
The decree-holder appeals in this case against an order of theDistrict Judge, dated the 15th October, 1902, refusing anapplication made by him under section 282 of the Civil Procedure
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1902. Code to set aside the sale of certain immovable properties madeOctober IS, by the Fiscal of the Western Province under a writ issued by the1903 ^strict Judge of Colombo in this case.
February 6. On the 21st October, 1901, the Fiscal of the Western ProvinceT.ivlim'r.-t- had seized certain properties situated in the District of Panadure,under the decree obtained by the appellant in this case on the3rd September, 1901, and the sale of the properties was fixedfor the 24th January, 1902, but appears to have been subsequentlypostponed for the 15th of the next month.
On the 20th January, 1902, the appellant obtained an orderof the District Court on the Fiscal directing him to permit theappellant to bid for and purchase the properties, and in the eventof the appellant becoming the purchaser the Fiscal was authorizedto give appellant credit up to the amount of the writ. In makingthis order the Judge added that the properties were to be put upfor sale at the Fiscal’s valuation.
The appellant’s complaint is that the Fiscal did not carry out theJudge’s order, and did not at the sale start the properties seized atthe respective values fixed by the Fiscal, and that the propertiesrealized much less than the Fiscal’s valuations.
It has been frequently laid down by this Court that it is the dutyof the Court to inform its officer, the Fiseal, of any order made bythe Court in respect of a sale which is being held under the Court’sdirections. Sangarapulle v. Ramalingam (2 Browne's Reports373). In this case, however, for some unaccountable reason, thedecree-holder seems to have meddled with the matter. Hiskanakapulle appears to have taken upon himself the duty ofdelivering the order made on the 15th January to the Fiscal.He waited until eight days after the order had been made, and onthe 23rd January (only a few hours before the time when the salewas to be held) delivered the order- at the Deputy Fiscal’s Office atKalutara, and then obtained it back from the Clerk of the DeputyFiscal, undertaking apparently to deliver it to the selling officerat Panadure before the sale took place the next day. The 6ale ofthe 24th January – was for some reason or other, which is notexplained, postponed to the 15th February. The appellant doesnot attempt to account for the non-delivery of the order to theselling officer between the 23rd day of January and the 15thFebruary, the date of the impugned sale. The evidence adducedby the appellant, however, shows that the kanakapulle onlydelivered the Judge’s order to the selling officer after the propertyhad been sold. I do not see how we can possibly allow theappellant to take advantage of the laches of his own agent. Itwas entirely due to the crass negligence, carelessness, and fault of
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the kanakapulle that the property was sold without any reserve 1902.price being placed upon it by the Fiscal, and the appellant cannottake advantage of the fault of his agent to set aside a transaction 1903which was otherwise regular.February 6.
Another objection has been raised by the appellant’s counsel. layabd^OJ.He contends that the properties seized and sold included certainhouses, and that if the value of the houses is added to the valueof the properties made by the Fiscal there was not sufficientadvertisement of the sale, and the sale must be set aside for thatirregularity. The respondent replies this was. not one of thegrounds of material irregularity alleged by the appellant in bisapplication to the District Court, and the District Judge cannot,under section 282 of the Civil Procedure Code set aside anysale unless the “ grounds ” of the irregularity on which the saleis sought to be set aside have been notified to the Court withinthirty days of the receipt of the Fiscal’s report. I am inclinedto think that the respondent is right, and that the judgment ofBurnside, C.J., in Dahanayake v. ZUva (9 8. C. G. 26), citedby appellant, is only an authority binding on this Court as tothe construction to be placed on the sections of the Fiscal’s Ordi-nance referred to in that judgment, and further that the provisionsof section 282 of the Civil Procedure Code differ materially fromthose sections, and are more explicit in its terms, and that appeilantcannot rely on any irregularity which has not been notified to theCourt within thirty days of the receipt, of the Fiscal’s report. It isnot however necessary to decide that point in this case, becauseappellant’s proctor in the Court below and appellant’s counsel in thisCourt are not agreed as to the irregularity complained of. Theproctor says the houses were not seized, and they ought to havebeen seized and sold; and the appellant’s counsel says they were seizedand sold, and ought to have been valued. Without knowing whatthe actual irregularity the appellant complains of is, it is impossiblefor us to set aside the sale. Further, the difficulty is obviated bythe respondent’s counsel admitting that the houses were not seizedand sold, and consequently the Fiscal was right in not valuingthem. To prevent any chance of injustice to appellant, respondent’scounsel has agreed to our directing that the houses on the landwhich respondent admits were not valued nor seized nor sold, beexplicitly excepted- in the Fiscal's transfer to the respondent.
I would affirm the judgment of the District Judge and order theDistrict Judge to direct the Fiscal to specially exclude the housesfrom the conveyance to be granted to the respondent, the purchaseat the Fiscal’s sale. The respondent is entitled to the costs of thisappeal.
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1902. Monoreiff, J.—
October IS,
m,d I am of the same opinion. It does not lie in the mouth of theFebruary 6. appellant to complain that the order of the Court of the 20th—January, 1902, did not reach the Fiscal’s Office before the sale.
He volunteered to do the work of the Court and the Fiscal, and waagrossly negligent in doing it. At the same time I do not thinkthat either the Court or the Fiscal was discharged by the officious-ness of the appellant from doing the duties which belong to them.I imagine it to be the duty of the Court to inform the Fiscal of suchorders as can only be carried out by the Fiscal, and that the Fiscalshould transmit those orders to his subordinates.