076-NLR-NLR-V-12-PALANIAPPA-CHETTY-v.-GOONEHAMY.pdf
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1609.
September 68.
Present: Mr. Justice Wendt and Mr. Justice Middleton.
PALANIAPPA CHETTY v. GOONEHAMY.
D.C.,Galle, 7,413. ,
Sale in execution—Absence of judgment or decree—Nullity—Irregularity.
No valid writ can issue or a Fiscal’s sale be held except on ndecree founded on a judgment. A writ which is not founded ona decree is a nullity, and all proceedings thereunder are voidab initio.
De Mel v. Dharmaratne1 referred to.
A CTION rei vindicatio. Appeal by the defendant from ajudgment of the District Judge.
W. Jayewardene, for the defendant, appellant.
A. St. V. Jayewardene, for the plaintiff, respondent.
Cur. adv. vult.
September 28, 1909. Middleton J.—
This was an action for declaration of title to a land called Wela-bodawatta. The defendant claimed the land by inheritance andprescriptive possession, but raised an issue as to whether the Fiscal’stransfer, on which the-plaintiff founded his title, was not voidin law.
.We have sent for the record in D. C., Galle, No. 6,418, in whichaction the sale to the original plaintiff by the Fiscal took place, and. we find that the facts were as stated in the petition of appeal, andthat the original plaintiff here being himself the judgment-creditorin that action purchased under a Fiscal’s sale, subsequently con-firmed by the Court, upon a writ, for which there was no authorityeither by decree or judgment.
The journal entry under date December 15, 1902, in action 6,418shows divers alterations, which I hope were only mistakes resultingfrom confusion between a decree nisi in the action and an ordernisi with regard to its restoration to the list.
The District Judge thought that, inasmuch as in the presentaction the plaintiff’s title was not denied by the judgment-debtorin the former action, who, indeed, was no party to this action, theorder confirming the sale to the original plaintiff cured all theprevious irregularities, and held that- the sale was a valid one, andsupported his reasoning by Karuppen Chatty v. Silva.2
The contention for the appellant was that the side was a nullity abinitio, and De Mel v. Dharmaratne1 and Malappa Aki v. Shivilingaya3were cited.
1 (1903) 7 N. L. B. 674.* 1 A. 0. B. 113.
a (ISIS). 1 L. R 2 Rom, 340.
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For the respondent it was argued that the original defendant, not J'Ji/o.having objected to the issue of the writ or the confirmation of the September 2s.sale, must be taken to have waived any irregularity in the procedure AIl “^onand thereby ratified the sale, and the judgment of the District Judge .T.was supported on the authority of 35 Calcutta 61 and 2 A. C. R. 67.
In the case reported in 35 Calcutta 61, which follows the PrivyCouncil ruling in 32 Calcutta 296, the appellant, whose sale was heldto be a nullity by the decision of the lower Court, which was reversedon appeal by the Full Bench, was a deoree-ho.lder, but held amortgage on the land sold and obtained execution on the equityof redemption in contravention of section 99 of the transfer ofProperty Act.
In my opinion that case is clearly different from the presentone. There it was an irregularity in procedure, while here it is acontravention of the substantive law that there must .be a decreefounded on a judgment to warrant the issue of a writ of execution(sections 184, 187, 188, 217, 224 of the Civil Procedure Code). Ifthis were not so, it is conceivable that a complaisant debtor mightadmit a plaintiff’s claim in his answer, and by consent writ might beissued without even judgment or decree; but this, in my opinion,would all be a direct contravention of the substantive law, whichcannot be waived by a party.
Again, in the present case it seems possible that a writ mighthave been issued without the knowledge of the judgment-debtor in6,418, although it is hardly possible for him not to have been awareof the sale which resulted in the writ, unless he was not in fact theowner of the property, which in the present action the defendant-alleges to be the case.
In my opinion the writ was a nullity, as not being founded on ajudgment and decree, and the proceedings thereunder arc void abinitio. The order of the District Judge must be set aside, and theappeal allowed with costs. As this decision disposes of the title ofthe plaintiff, on which he' solely relies, the action must also bedismissed with costs.
Wendt J.—
I have had the advantage of perusing my brother Middleton'sjudgment, and entirely agree with it. There was no legal foundationfor the issue of any writ of execution against the defendant in caseNo. 6,418, and the sale held under the writ which issued per incuriamwas null and void. Plaintiff here suing in ejectment can onlysucceed by the strength of his own title, and the defendant isentitled to take advantage of the objection which I have pointed out-to that title.
Tlie appeal must be allowed, and plaintiff’s action dismissed withcosts in both Courts.
.4 ppnal allowed.