060-NLR-NLR-V-08-PALANIAPPA-CHETTY-v.-SAMSADEEN.pdf
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PALANIAPPA OHBTTY v. SAMSADEEN.
D. 0.t Colombo, 18,064.
Writ of execution, reissue of—Stampduly—Sale ofproperty—Confirma-
tion of sale—Irregularity—OrdinanceNo. 8 of 1890, part II., schedule.
A writ of execution issued by the Court was returned by the Fiscal,who, in his return, stated that the sale of the property had beenstayed at the request of the plaintiff's proctor. The Secretary ofthe Court onthe plaintiff'sapplication reissuedthe same writ with
the followingendorsement :—*' Thiswrit isextended andreissued
to recover the amount of this writ minus the sum of Bs. 4,740,
• returnable on or before the 29th December, 1905. The stamp dutywas not paid afresh. The Fiscalhavingseizedandsold certain
property in execution of the said writ, the Court confirmed the sale.
Held, that the seizure and saleby theFiscalwereinvalid, and
that the sale should not have been confirmed.
Per IiATABD, C.J.—No writ issued out of the District Court andreturned by the Fiscal should be reissued, unless such writ hasbeen returnedunexecuted byreasonthat theparty couldnot be
found, or hadleft the jurisdiction ofthe Court,or by reasonthat no
property of the debtor or none tosatisfythe exigencyof the writ
could be found.
Per Wendt, J.—If the stomp duty had been paid afresh, thewrit would be good.
T
£[E facts appear sufficiently from the judgment of the ChiefJustice.
Wadsworth (with him Ahbar), for appellant.
' De Sampayo, K.G., for respondent.
1st December, 1905. Layard, (J.J.—■
The defendant is the appellant before us. A writ of executionwas issued in this action and certain premises were sold on the 22ndMay, 1905. The appellant alleges that the properties sold wereworth Rs. 20,000, and that the Fiscal sold them for Rs. 1,700, thepurchaser being the execution-creditor himself. He further allegesthat there were material irregularities in the seizure of the propertyas well as in the publishing and conduct of the sale, by which theappellant has sustained substantial injury, the property not fetch-ing on-tenth of their value, and he applied to the District. Judge to
have the sale set aside. The District Judge on the 21st August,
disallowed the appellant's application, because-the appellant wasnot ready to proceed with his application on that day. The DistrictJudge seems very properly to have thought, that the appellant wasnot entitled to any indulgence. Subsequently the District Judge
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December I.
1905.
December 1.LaVABD.O.J
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made an order confirming the sale. The appellant has appealedagainst both .these orders. I think that the District Judge exerciseda very wise discretion in refusing to allow a postponement of thematter when it came before him. The appellant has been verydilatory in the Court below, and is entitled to no indulgence eitherin the District Court or in this Court., The appellant’s counsel, how-ever,, has pointed out to us what appears to be a material irregula-rity, in fact one which goes to the root of the authority of the Fiscalto seize and sell these properties. It appears that the writ, whichoriginally issued on the 20th September, 1903, was returned to theCourt unexecuted, the Fiscal in his return stating that the sale of theproperty described in the mortgage decree was stayed at the requestof the plaintiff’s proctor. I am informed that this request wasmade by the plaintiff’s proctor as an indulgence to the defendant.The material irregularity which seems to vitiate the Fiscal’s sale ofthe property is that the plaintiff’s proctor, instead of taking out anew writ, obtained from the Secretary of the District Court the oldwrit of execution which had been returned unexecuted in 1904, andthe Secretary appears at his request to have endorsed the old writas follows:—“ This writ is extended and re-issued to recover theamount of this writ, minus the sum of Bs. 4,740 paid as follows: onthe 18th November, 1903, Bs. 240, and on the 3rd December, 1904,Bs. 4,500. Beturnable on or before the 29th December, 1905.” <.
The appellant’s counsel points out that no writ of execution whichhas once been issued ^out of the District Court and returned by theFiscal can, on any pretext whatever,, be re-issued, unless such writhas been returned not executed by reason that the party could notbe found or had left the jurisdiction of the Court, or by reason thatno property of the debtor or none sufficient to satisfy the exigencyof the writ could be found. This provision will be found in theschedule to the Ordinance No. 3, of 1890, part II. The Legislaturehas distinctly laid down there under what circumstances a writ can bere-issued. In the present case it is clear that this writ, in view ofthe provision contained in the schedule to that Ordinance, couldnot be re-issued. Suih being the case, the document in the hands ofof the Fiscal on the face of it is null and void, and can give noauthority to such officer to seize and sell the property of the execu-tion-debtor. I go even further and say that it is. no authority for'him to seize and'sell the property mortgaged. The Fiscal purportedby virtue of this writ, which was void on the face of it, to seize andsell property, and the sale by the Fiscal has been confirmed by. theDistrict Court. In my opinion, following the previous decisions ofthis Court, the Fiscal having no authority to seize r,nd sell there
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was no sale which could be confirmed by the District Court. I think, MW-therefore, the order of confirmation of the sale must be set aside and ^60em&arthe sale must be declared void. The District Judge is not to blame layabd,C.J.for making the order confirming the sale, for his attention was notinvited to the gross irregularity which I have above pointed out*
The appellant's counsel pointed out that the procedure withregard to the issue of the writ was irregular. I need not dwfell onthe points raised by him, but simply refer to my judgment in whichMr. Justice Wood Benton concurred (Balasingham ’a Reports, vol II.,p. 61).
The appellant, as I said before, is entitled to no indulgence, as hedid not draw the attention of the District Judge to the inability ofthe Court.
He must pay all the costs of this appeal and of the proceedings inthe District Court with regard to the reissue of the writ, Theorder, however, confirming the' sale, as 1 said before, is set aside,and in lieu thereof it is ordered that a fresh writ do issue for theamount of the balance due on the judgment.
The respondent's proctor must be careful to see that the writissued by the District Court does not contain a claim for more thanthe amount now actually due.
Wendt, J.—!
In my opinion the; writ was improperly re-issued. I do not readthe provision in schedule II. of the Stamp Ordinance as forbiddingthe use of the very paper upon which the writ was written, to makea second levy on thesi defendant's property, but rather the seconduse of that paper without paying afresh the stamp duty required fora new writ. If therefore the stamp duty had been paid afresh, Ishould have been prepared to hold that the writ was good. As it is,the writ was void in law, and could form no legal basis for 6ale ofdefendant's property.
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