031-NLR-NLR-V-35-PERERA-v.-WICKREMARATNE-et-al.pdf
DALTON A.CJ.—Perm. v. Wickremaratne.
183
1933Present: Dalton A.C.J. and Koch A.J.
PERERA v. WICKREMARATNE et al.
40—D. C. Badulla, 5,407.
Fiscal’s sale—Satisfaction of claim before sale—Tender of fiscal’s charges andrevest to stay sale—Refusal of fiscal to exercise his discretion—Materialirregularity—Civil Procedure Code, ss. 282 and 342.
Where, at a fiscal’s sale, evidence is produced, before the sale takesplace, that the plaintiff’s claim has been satisfied and money is tenderedfor fiscal’s charges, the failure of the fiscal or his deputy to exercise hisdiscretion and adjourn the sale, is a material irregularity within themeaning of section 282 of the Civil Procedure Code.
^PPEAL from an order of the District Judge of Badulla.
V. Perera, for defendant, appellant.
Rajapakse (with him Stanislavs Alles), for purchaser, respondent.
July 20,1933. Dalton A.C.J.—
The appellant is the defendant in the action, the respondent appearingon the appeal being the purchaser of the appellant’s property boughtat a fiscal’s sale The plaintiff (respondent), who did not appear on the
1 (1925) 21 N. L. R. 33.» (1918) 21 N. L. R. 12.
184
DALTON A.CJ.—Perera v. Wickremaratne.
appeal, obtained judgment against the defendant for the sum of Rs. 600,and Rs. 102.80 costs. She took out a writ on December 21, 1931, for thesum of Rs. 702.80 and on March 3, 1932, seized the land in question,valued by the fiscal at Rs. 3,000. The sale was advertised for April 16.The plaintiff also seized salary due to the defendant, a sum at Rs. 72.95representing salary due, being paid by the defendant’s employer intoCourt on March 5. On March 31, defendant’s employer sent a furthercheque for Rs. 629.85 to the Court, being the balance of the amount dueto plaintiff. Receipts for both these sums were issued to him on theinstructions of the District Judge, and the amounts were paid over tothe plaintiff on March 19 and April 9, respectively. Plaintiff’s claimwas thus satisfied. On April 14 appellant heard by telegram from hisproctor that further sums were due for proctors’ and fiscal’s charges,amounting to Rs. 115. Accordingly he sent a messenger with Rs. 115in cash on April 16 to the fiscal’s deputy to the scene of the sale, togetherwith a letter stating it was the balance due, to which was also attachedthe District Judge’s acknowledgment for the previous amount paid.This amount was tendered to the fiscal’s officer before the sale, but herefused the amount, stating he could not stay the sale except on anorder of the Court. He therefore proceeded with the sale and the pro-perty, valued by him at Rs. 3,000 and by appellant at a higher figure,was sold to the purchaser respondent for Rs. 560.
The learned District Judge has held that although the appellant hassuffered substantial injury, there was no irregularity in the conducting orpublication of the sale within the meaning of section 282 of the Code,and no proof of any fraud or error that would entitle the appellant tohave the sale set aside under the provisions of section 344.
There is no doubt that the plaintiff’s claim was satisfied some consider-able time before the sale. The deputy fiscal says he was not aware ofthese payments, but since they were payments into Court, it is difficultto believe he did not know of them. There was nothing due thereafterto the judgment-creditor. On the day of the sale the balance due forcharges was tendered to the deputy fiscal in cash, and evidence, in theform of the District Judge’s acknowledgment, was tendered to him of theearlier payment. He refused the cash and apparently declined to lookat the receipt, if he is to be believed. The reason he gives for actingas he did is that his instructions from the fiscal are not to stay a saleonce advertised except on an order of the Court. An extract of thoseinstructions was produced at the inquiry, but it is clear they refer to thestay of execution proceedings and adjournments of sale under section 343of the Code. The extract is in fact so headed, and there is no doubtthat it refers to stay of execution proceedings under that section whichcan only be by order of the Court.
Both the learned trial Judge and the fiscal’s deputy appear howeverto have overlooked the provisions of section 342 of the Code, which givesthe fiscal a discretion to adjourn a sale, on good ground being shownfor such adjournment of course, and directs him to report to the Courtthe cause for which the adjournment was made. Where clear andundisputed evidence is produced to the fiscal or fiscal’s deputy before the
DALTON A.CJ.—Per era v. Wickremaratne.
185
sale, that the plaintiff’s claim has been satisfied and cash for his fees istendered, what stronger and better case could be put forward for theexercise of his discretion to adjourn the sale and report the cause of theadjournment to Court? How can he justify in such a case, the sellingof the property seized in execution? Counsel urged, on behalf of therespondent, that even if double the amount of the judgment-debt and allsale expenses were tendered in cash before the sale, the fiscal might stillproceed with the sale which would then become effective. The Courtwill deal with that case when, if ever, it arises. He suggested furtherthat the receipt produced might have been forged. If the fiscal’s deputyhad looked at the document and had given that as his reason for decliningto accept it, there might be some explanation for his conduct. Underthe circumstances here, the evidence is clear that he exercised no discre-tion at all such as the law gives him and requires him to use when calledupon to do so, as to whether the sale should be adjourned, he misreadhis instructions and he proceeded with the sale, as if he had no authorityat all to adjourn it although asked to do so, and for very good reason.That, in my opinion is, under the circumstances, an irregularity in theconducting of the sale within the meaning of section 282.
The decision in Silva v. Ibrahim Rawter1 relates to claims .undersection 241 where it was urged that the fiscal should have stayed the salewhen a claim was made. With regard to the postponement of a saleunder the provisions of section 242 Wendt and Middleton JJ. appear tohave been of opinion that it only applied to the postponement of a saleafter it had been commenced. If that construction is correct in thatcase, Mr. Rajapakse conceded it could not be applied to an adjournmentunder section 342, since such a narrow construction is not consistent withthe words of that section. In Uparis v. Subasinghe ‘ the power of thefiscal to adjourn a sale under section 342 is referred to, and the safecourse that he should adopt in certain cases is pointed out. That he hasa discretion in the matter is of course clear, but he cannot throw off hisresponsibility by saying he has no discretion at all. He must be on hisguard against being deceived by false stories, but in practice a sensibleofficer should have no difficulty in deciding whether or not he shouldadjourn a sale under the powers given him by section 342 when asked todo so. If he is in doubt, he should adjourn it and report the cause fordoing so at once to the Court.
There is one unreported case which has been brought to our notice,in which it was held that the refusal of a fiscal’s officer to accept thetender of the amount due was not an irregularity in conducting thesale which entitled the judgment-debtor as against the purchaser tohave it set aside under section 282.(Supreme Court Minutes, November
1914 S. C. 321—C. R. Matara 7,386.) The facts of the case are notset out and so one does not know what tender was made, in what form itwas made, or what reasons were put forward by the fiscal’s officer forrefusing the tender and for proceeding with the sale. In his judgmentWood Renton C.J. pointed out that there was very little authority on thepoint, but he came to the conclusion that there was no positive require-ment of the law which compelled the officer to accept the tender. I
-110 N. L. R. 06.219 N. L. R. 468.
186
AKBAR J.—Vanrooyen v. Perera.
think one may therefore safely assume the fiscal’s officer had exercisedthe discretion given to him by section 342, although the material uponwhich that was done does not appear, and did so properly, in whichcircumstances there would be no irregularity in conducting the sale andin his refusal to accept the tender. If that is so, I think it can bedistinguished from the case before us.
Argument was addressed to us also, and cases cited, as to the powers ofthe Court to set aside the sale under the provisions of section 344 of theCode, but it is not necessary in view of my conclusion to consider them.I am satisfied a material irregularity in conducting the sale within themeaning of section 282 of the Code has been committed and that theappellant thereby suffered material loss and injury. He is entitledto have his application granted; the appeal is allowed and the sale setaside. In the circumstances, although the respondent is not responsiblefor what happened, I do not see that the appellant can be denied his costsin both Courts. I would so order.
Koch A.J.—I agree.
Appeal allowed.
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