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Present: Bertram C.J. and De Sampayo J.
PERIS v. SILVA.93—D. C. Qalie, 15,115
Civil Procedure Code, st. 201, 284, and 844—Mortgage decree—Auctionsale-^Potoer of 'Court to eet aside sale on the ground that debtor had nosaleable interest.
It is not open to a purchaser at an auction* sale, held under amortgage decree under section 201 of the Civil Procedure Code, to move theCourt to set aside the sale on the ground that the defendant at the time ofthe sale had no saleable interest in the property.
“ Section 344 of the Civil Procedure Code no doubt provides thatall questions relating to the execution of the decree should bedetermined by the Court executing the decree, but I think thesequestions have regard only to procedure and the conduct of theparties concerned or of the officers entrusted with the duty ofcarrying out the seizure and sale. In my opinion such a questionas the title of the execution-debtqr to the property sold is outside the scopeof section 344.”
Section 284 is concerned with ordinary Fiscal's sales only.
*facts appear from the judgment.
A. St. V. Jayaw',~dene, for purchaser, appellant.
Zoysa, for plaintiff, respondent.
J. S. Jaywwardene, for-defendant, respondent.
November 12, 1918. De Sampayo J.—
The application, from the refusal of which this appeal is taken,is quite novel, and no express provision of the law or any judicialprecedent can be cited in support of it. The plaintiff obtained' amortgage decree against the defendant, whereby the Court, undersection 201 of the Civil Procedure Code, ordered that the mortgagedland be sold by public auction, and a commission was issued toMr. W. D. de Silva, auctioneer, to carry out the sale. On October6, 1917j the sale took place under conditions of sale approved by theCourt, and the appellant became purchaser for the sum of Rs. 2,315.The appellant as purchaser paid down one-tenth of the purchasemoney in accordance with the conditions of sale, and agreed to paythe balance on November 6, 1917. The conditions of sale providedthat if this balance was not duty-paid, the deposit should be there-upon forfeited to the plaintiff, who was to be at liberty either toenforce the sale, or to re-sell the property at the risk of the purchaser.The appellant having failed to pay the balance purchase money asagreed, the plaintifE chose the latter alternative, and the Court on
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' Paris v.Silva
November 28, 1917, at the instance of the plaintiff, ordered a re-sale,and Authority -in that behalf was given to the same auctioneer.This re-sale took place on December 22, 1917, and the auctioneerreported the same to Court on December 29, 1917. In the meantime,on December 6, 1917, the appellant applied to Court by petition toset aside the first sale, and to refund to him the deposit, on the groundthat the defendant at the time of the sale had no saleable interestin the property. The District Judge refused this application, andthe appeal-is from that, order.
The District Judge has expressed the opinion that the sale havinglapsed on the failure of the appellant duly to pay the balancepurchase money, and a re-sale having been ordered, the appellantwas not entitled to assert, his rights as a purchaser and'to make theapplication. This reasoning appears to me to be sound, but themore serious and important question, which has been argued at■ length before us, is whether the appellant, even if he was not indefault, is entitled to a rescission, of the sale on the specific groundon which he bases his application. I think that this questionhas been rightly answered in the negative by the District Judge.Section 344..of the Civil Procedure Code, which has been invoked,no doubt provides, that all questions relating to the execution ofthe decree should be determined by the Court executing the decree;but I think these questions have regard only to procedure and theconduct of the parties concerned Or of the officers entrusted withthe duty of carrying out the seizure and sale. In my opinion sucha question as the title of the execution-debtor to the property soldis outside the scope of section 344. The appellant’s counsel alsoreferred to section 284 of the Code as authorizing the Court to setaside a sale on the ground that the execution-debtor had n° saleableinterest, whether the sale be effected under a writ in the ordinarycourse of execution, or in pursuance of a special order under section2Q1 for the sale of mortgaged property. This interpretation isinadmissible, for it is .clear, from the context and language ofsection 284 itself, that it is concerned with the ordinary Fiscal’s salesonly. The result, so far as the Civil Procedure Code is concerned,is that a sale of mortgaged property under section 201 cannot beset aside for want of title in the mortgagor by summary applicationto Court. It is not necessary here to decide whether a separateaction is available for that purpose. I need only say that, withregard to judicial sales, the general principle is caveat emptor, andunless it can be clearly shown that the law has provided otherwise,it is not possible to supply the omission by straining the provisionsof the Code and applying them to cases not contemplated therein.
In my opinion the appeal fails, and should be dismissed, with costs.Bertram C.J.—I agree.
PERIS v. SILVA