024-NLR-NLR-V-25-PATHINAYAKE-v.-WICKREMESINGHE-et-al.pdf
C 102 )
1923.
Present; Schneider J.
PATHINAYAKE v. WICKREMESINGHE et al.
36—C. R. GaUe, 2,967.
Hypothecary decree—Sale of land other than that mortgaged—Estoppel.
Writ of execution was issued under a hypothecary decree, whichdirected the sale of the property mortgaged. Several attemptsto sell the property mortgaged were unsuccessful for want of bidders,and an application was made that an extension of time might begranted to the Fiscal to seize and sell such property as might bepointed out . The Court granted an extension of time, but withoutexpressly stating that the Fiscal was authorized to sell other pro-perty than that mortgaged. A property other than that mort-gaged was sold and purchased by the plaintiff.
Held, that the sale was not invalid.
I
N this case the plaintiff sued the defendants for declaration oftitle to five-sixths of the land called Kamuketiyewatta ; he also
prayed for an order of ejectment and damages against the defend-ants. The nlaintiff based his title to the said shares on a Fiscal’s
( 103 )
transfer in his favour. The said shares ■were sold in execution pf a 1923-writ issued in case No. 1,581, 0. R. Galle, against the second, third, Pathinayakeand fourth defendants, and were purchased by the plaintiff, -who *•thereafter obtained the Fiscal’s transfer in his favour. Regardingthe contest between the plaintiff and the first defendant, thematters in issue between them were settled at the trial. Thesecond, third, and fourth defendants contended that the proceedingsin case No. 1,581 were irregular, and that the Fiscal’s transferissued to the plaintiff after his purchase at the sale held in executionof the writ issued in 1,581 conferred no title on plaintiff.
The Commissioner of Requests held as follows :■—-
It is conceded that plaintiff purchased the land in dispute in execu-tion of a decree in an action on a mortgage bond, that the land purchasedby him is not the land mortgaged, and that the mortgaged propertyhas not yet been discussed. The irregularity of this procedure is pointedout in Wijesekera v. Raimi.1 It is there laid down that the creditorshould first realize the mortgage, and can resort to the other propertyonly for any deficiency, unless the debtor consents otherwise.
I do not think it can be maintained that the defendants “ consented.”
It may be they were present at the Sale, and did not object, but“ consent ” in this connection surely means something stronger than“ not object.” There was no duty cast upon them of correctingplaintiff’s errors in law, even if they had the knowledge to do So.
Soertsz, for appellant.
H. V. Perera, for respondents.
June 22,1923. Schneider J.—
The plaintiff alleged that the second and third defendants wereentitled to an undivided five-sixths of the land in dispute, and thatat a sale under a writ of execution issued against them and thefourth defendant, who is the husband of the third defendant,he purchased the said shares and became entitled to them on Fiscal’stransfer dated November 10,1921. He alleged that the defendants,of whom the first was entitled to the remaining one-sixth share, werein possession of the whole land disputing his right thereto. Thefirst defendant confined his claim to the one-sixth share mentioned inthe plaint. The second and third defendants claimed an undividedhalf share by paternal inheritance in their amended answer. Intheir original answer they simply denied that they were in possessionof any share. In neither answer did they meet the plaintiff’s claimas derived in execution against them. The second issue raised theirdefence, but in a vague form. From the proceedings ifc would appearthat what they really contended was this. The writ of executionagainst them was issued under a hypothecary decree which directed
1 (1917) 20 N. L. R. 126.
( 104 )
1923.
SCHSETDER
J.
Pathinayakev. Wickreme-singhe
the sale of the property mortgaged. The Fiscal, without discussingthat property seized and sold the property in dispute which had notbeen mortgaged. The sale was therefore invalid, and the plaintiffderived no title by his purchase. The learned Commissioner upheldthis contention and dismissed the plaintiff’s action. He relied uponthe case of Wijesekera v. Rawal.1 I do not think that decision isapplicable to this case. It decided simply that the opposition of ajudgment-debtor to the application of a judgment-creditor in anaction Upon a mortgage bond for authority to sell in the first instanceproperty other than that mortgaged should be upheld in the absenceof any reason for granting such a departure from the terms of thedecree. The learned Commissioner has failed to notice a reservationin the judgment of De Sampayo J., who decided that case, which isapplicable to this case, and which modify the general principle hegave effect to. The reservation was that there might be goodreason for a Court not enforcing the general principle that themortgaged property should be first discussed. In this case severalattempts to sell the property mortgaged were unsuccessful for wantof bidders and upon a report to that effect repeated by the Fiscalon February 28, and a request made that an extension of time mightbe granted to him to seize and sell such property as might be pointedout. The Court granted an extension of time, but without expresslystating that the Fiscal was authorized to sell other property thanthat mortgaged. The sale of the land in dispute was held in thesecircumstances. It appears to me that the Court intended by itsorder to authorize the Fiscal in terms of his application to sell suchproperty as would be pointed out. It was within the competenceof the Court to so authorize and to do so was not to act inconsist-ently with the decree. The decree was to the effect that if the sumdecreed to be paid to the plaintiff was not recovered by the sale ofthe mortgaged property, the balance was to be recovered by thesale of other property. It was, therefore, not inconsistent withsuch a decree when the property mortgaged could not be sold, forthe Court to order execution upon other property. But even if theCourt had no authority to so order, the defendants are bound by thesale at which the plaintiff purchased. . The evidence is that thedefendants were present at that sale and took no objection to thesale of the land. They are now estopped by their conduct fromdenying the validity of that sale upon the ground upon which theyare seeking to impeach it.
therefore, set aside the order appealed against, and give judg-ment for the plaintiff for five-sixths shares as claimed, and damagesat Rs. 15 a year as agreed upon. The plaintiff will have his costsin the lower and in this Court.
Set aside.
H1917) 20 N. L. R. 126.