015-NLR-NLR-V-22-PERERA-v.-BRITO.pdf
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1920.Present: De Sampayo J
PERERA v. BRITO.
*
5—C. R. Colombo, 68,686.
Civil Procedure Codef s. 282—Sale of property under one u&fy—Applica-tion by another unit-holder to set aside sale—Person interested inthe property.
Defendant’s land was sold in execution by the Fiscal on a writissued by the plaintiff, and was purchased by the appellant. Therespondent obtained a judgment in D. C. Colombo, 61,377, andseized the same land in execution, but-the Fiscal purported to sellthe land under the writ in this case only. The respondent thenapplied to set aside tjie sale on the ground of material irregularity.The value of the land was Rs. 2,500, but the sale was not advertisedin the Gazette, and the price realized was only Rs. 90.
Held, that the respondent was a person interested in the propertywithin the meaning of section 282 of the Civil Procedure Code.
T
HE case No. 68,686 of the Court of Requests, Colombo,, wasinstituted by one 6. D. Issan Appuhamy against one Eliza
Peiris for the recovery of money due on a promissory note. Decreewas entered in favour of 6. D. Issan Appuhamy, who thereuponobtained a writ and seized a land called and known as,Taigawatta*The said land was sold by the Fiscal under the said writ and boughtby the appellant.
Thereupon, the respondent to this appeal, Stephen Brito, pre-sented a petition to the Court of Requests to. have the sale set aside.The learned Commissioner set aside the .sale.
The following were the reasons of the Commissioner of Requests(T. B. Russell, Esq.):—
No attempt has. been made by the respondent seriously to rebutthe charge that the whole .of the proceedings in this case, from itsinstitution up to the sale by the Fiscal, were intended to defraud thepetitioner and prevent his recovering on his decree. The evidenceof petitioner and Mr. Thiedem'an remains practically uncontradicted.The close relationship of the respondents, the hurry with which thedecree in the present case was obtained, the seizure, not of third respondsent’s own property, which petitioner could not touch, but of thedeceased’s, over which alone the petitioner had a claim, the eventsof the sale itself, when bidding was discouraged by the announcementof a fictitious mortgage and lease, all very strongly support fraud andcollusion between the respondents. But it is unnecessary for me to gcbeyond Mr. Thiedeman’s evidence as far as the present inquiry is con-cerned. TTia statement that the property sold is worth Rs. 1,500 standsuncontradicted. The sale was not advertised in the Gazette. Thepetitioner undoubtedly sustained substantial injury by the way thesale was conducted. .
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He is, therefore, on his ground alone entitled to- have the sale set 1920.
aside. I have not dealt with the question whether the petitioner
would, on the evidence, he entitled to have the decree also set aside. ^‘^er.aThere is no prayer to this effeot in Ms petition, and I do not think I v’ ntoam entitled to give him a relief he has not asked for therein.
Zoyza, for purchaser, appellant.—The property was sold undera writ issjbed in this oase from the Court of Bequests, and the,respondent!’^ writ having been issued from the District Court, therespondent cannot claim concurrence with the judgment-oreditorin this cate; See Mendis v. Peris1 and Meyappa Ghetty v. Weera-sooriya.6 Hence the respondent does not come within the ruling inKomerappa-y. Muttiah,® and is not a person having an “ interest ”in the property sold within the meaning of section 282.
Nagalihgcm, for petitioner, respondent.'—Though the respondentmay not be entitled to claim concurrence with the judgment-creditor,yet he might otherwise have a sufficient “ interest ” in the propertysold to have the sale set aside. In Caruppm Ghetty v. Habibu,*an heir who was only interested in the proceeds of sale was heldto be a person “ interested ” within the meaning of this section.The respondent comes within this principle, as he might 'have hadsome balance left out of the proceeds of sale after satisfying thefull claim of the judgment-creditor if the sale had been properlycarried out. The principle has been extended further. See DmBrampy v. Peris,6 where it was held that one of several co-debtors,whose share in a property was liable to be sold in the event of theshares of the other co-debtors not realizing sufficient assets to paythe entire claim of the judgment-creditor, was a person interested.'In the present case the respondent has a direct interest in theproperty itself that has been sold, so is a person (< interested.”
July 16,1920. De Sampato J.—
This appeal raises a . question of procedure of considerable impor-tance. The plaintiff, having obtained a decree for money againstthe defendant, issued writ of execution, -and had a land of thedefendant* Seized and sold by the Fiscal. The appellant becamepurchaser of the land. The respondent in this appeal obtained ajudgment in the action No. 51,377 of the District-Court of’Colomboagainst the defendant and seized the same land in execution, butthe Fiscal purported to sell the land under the writ in this case only.The respondent then applied to set aside the sale on the ground ofmaterial irregularity. The Commissioner made order setting asidethe sale, and the purchaser has appealed.
1 (1915) 18 N-. L. R. 310.*$893) 3 0. L. R. 58.*
* (1916) 19 N. L. R. 79.* (1907) 11 N. L. R. 230.
(1919) 6 C. W. R. 48.
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1920.
DeSampayo
J.
Pererav. Brito
There is no doubt about tho facts on which the order is based.The value of the land has been found to be Rs. 2,500, but the salewas not advertised in the Gazette, and the price realized was onlyBs.'OO. It is objected, however, that it was not competent for therespondent to apply under section 282 of the Civil Procedure Code,which authorizes a person “ establishing to the satisfaction of theCourt an interest in the property ” to apply to set aside an executionsale on the ground of irregularity. * Mr. Zoysa is right in contendingthat the respondent, not being the holder of a decree of the sameCourt, was not entitled to claim the proceeds in, concurrence undersection 352 of the Code, and could not, therefore, rely on the decisionsof this Court, to the effect that a judgment-creditor entitled toclaim in concurrence is a person interested in the property withinthe meaning of section 282. But does this exhaust the matter ?The respondent had himself seized the property in execution, and,if the sale under the plaintiff’s writ were irregular and liable to beset aside, he would be entitled to bring the property to sale underhis own writ. Moreover, if the sale under the plaintiff’s writ hadnot been irregular and the property had realized its proper value, alarger balance of proceeds, after payment in full of the plaintiff’sdecree, would-be available for satisfaction of the respondent’sclaim. I think that the respondent is a person interested in theproperty, though he may not be able to claim the proceeds inconcurrence. The point involved is new, but I think that theconstruction I have put on section 282 is not only reasonable butin accordance with justice; This case itself shows how injusticemight otherwise be the result, for the Commissioner has recorded astrong finding that the sale was brought about by fraud and collusionbetween the plaintiff and the defendant.
The appeal is dismissed, with costs.
Appeal dismissed.