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Present t Ennis J.NATCHIYA v. ABDUL CADER.256—C. R. Galle, 12,189.Assignment of ttoo mortgage bonds to defendant for Its. 600—Payment ofRs. 226 by defendant—Action for balance—Seizure of bonds undersection 229, Civil Procedure Code—Sale of “ deed of assignmentNo. 67 ” by Fiscal—No reference to bonds—Prejudice—Materialirregularity.
Plaintiff assigned to the defendant two mortgage bonds forBs. 250 each. The defendant paid him Be. 276, and the plaintiffsued him for the balance, obtained writ, and seized the twobonds by issue of a prohibitory' notice under section 229 of the CivilProcedure Code. The Fiscal advertised for sale ** the deedof assignment No. 57 ' in favour of the defendant.” Bs. 185 wererealized by the sale. The defendant moved to set aside the eale.
Held, that the defendant was prejudiced by the way the salewas carried out. " The failure to specify the property in theadvertisement of the sale other than by zefereince to the nnmberof a deed must have affected the price realized at the sale, and hadcaused a substantial damage to the defendant."
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TfR plaintiff by deed No. 57 dated February 19, 3921, assignedto the defendant for Bs. 500 mortgage bonds No. 6,711 dated
October 9, 1913, and No. 9,670 dated January 18, 1916. Thedefendant did not pay a sum of Bs. 225 out of the Bs. 500, andplaintiff sued him for the balance due and recovered judgment.
On January 10, 1922, the plaintiff had a writ issued against thedefendant, and caused the two mortgage bonds of the value of nearlyBs. 1,000, with interest, which had been assigned to the appellantby the first respondent, to be seized on February 1, 1922.
On April 3, 1922, the Fiscal caused the deed of assignment to beadvertised for sale, and the same was put up for sale on April 10,1922, when the second respondent purchased the same for Bs. 125.
• The defendant-appellant on May 6, 1922, made an application toset aside the sale on the grounds (1) that the Fiscal sold the assign-ment without any reference to the two mortgage bonds, whereas thetwo mortgage bonds were seized ; (2) that there was not sufficientnotice given of the sale, in that no tom-toming took place at Weli-gama, where the applicant resided and where the two mortgagebonds were seized • (3) that the property sold was not describedaccurately and fairly.
On July 28, 1922, the Commissioner of Bequests made an orderdismissing the appellant's application.
The defendant appealed.
Soertse, for the defendant, appellant.
Aelian Pereira, for the plaintiff, respondent.
M. B. A. Cader, for the purchaser, respondent.
November 29, 1922. Ennis J.—
This is a-n appeal from an order refusing to set aside a sale. Itappears that the plaintiff assigned to the defendant two mortgagebonds, each for Bs. 250. The defendant paid Bs. 275, and theplaintiff sued him for the balance Bs. 225, obtained judgment,took out writ, and seized tbe two bonds by the issue of a pro-hibitory notice under section 229 (a) of the Civil Procedure Code.Steps were taken by the Fiscal to sell the bonds. The Fiscal didnot sell the bonds, but sold the assignment of the bonds, andadvertised for sale the following property: “ The deed of assignmentNo. 57 iri favour, of the above-mentioned defendant." Thisadvertisement clearly did, not conform with the requirements' ofsection 255, as it cannot be said that the property was fairly andcorrectly specified to the extent which the circumstances renderedit reasonable and practicable to do. The word “ assignment "did not describe the property in any way, and the deed might haveapplied to any kind of property under the sun other than the
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conveyance, which has to bo made in set form. The propertyrealized Rs. 125, and the defendant applied tp have the Bale setaside on the ground that there was a material irregularity in theconduct of the sale* Not only did the Fiscal not sell the propertyactually seized, but he did not give notice of the sale by beat. oftom-tom as required by section 255 ; and, further, did not advertisethe sale as required by the Code- But a further objection has beenurged, an objection which does nob appear to have been noticedby the learned Judge m making his order on the application. Ithas been objected on appeal that the plaintiff did not choose toadopt the procedure laid down in section 230 of the Code, namely,of issuing summons on the mortgagor to see whether he waswilling and able to pay the amount of the mortgage debt. Takingall these circumstances together, I am of opinion that the defendanthiss been gravely prejudiced by the way the sale has been carriedout, and that the failure to specify the property in the advertisementof the sale, other than by reference to the number of a deed, musthave affected the price realized at the sale, and had caused asubstantial damage to the defendant. In the circumstances I.setaside the sale. The appellant will have costs against the plaintiffrespondent.
NATCHIYA v. ABDUL CADER