( 269 )
Present: Dalton J. and Akbar A. J.
RAMAN CHETTY v. SIRIWARDENE.
148—D. C. (Inly.) Colombo, 5,046.
Fiscal's sale—Order of court staying the sale—Order not communicatedto the officer conducting the sale—Sale held despite the. Court'sorder—Civil Procedure Code, ss. 282, 343, 344.
Where a Fiscal’s sale was held after an order of Court had issuedstaying the sale, because the order was not communicated to theofficer conducting the sale,—
Held, that it was competent to the Court to set aside the sale.
The terms of section 343 of the Civil Procedure Code are directory,and an order directing the stay of sale conditional upon the pay.ment of the Fiscal’s charges was a sufficient compliance with theprovisions of the section.
PPLICATION to set aside a sale held in execution of a decreeof the District Court of Colombo.
The property of the judgment-debtor at Induruwa was advertisedby the Deputy Fiscal, Galle, for sale on October 4,1924, at 12 noon.On October 1, 1924, tfie judgment-creditor applied to the Colombo1 (1872) 10 B. L. B. App. 2.* (1881) I. L. B. 6 Cal. 530.
3 (1903) 5 Bom. L. B. 312.
( 270 )
1925. District Court for a stay ot sale and obtained it. This order wasin the hands of the Fiscal, Galle, on the 3rd, and the Fiscal’s orderChettyV to stay the sale was handed to the person, bringing the order of■SKriwardtne. court, to be deliverd to the Fiscal’s Arachchi atTnduruwa. Theorder countermanding the sale did not reach the Fiscal’s Arachchi,and he sold the property. On October 31, 1924, before the con-firmation of sale by Court, the judgment-creditor by a petition, towhich the purchaser and the judgment-debtor were made respon-dents, applied to set aside the sale. The District Judge set asidethe sale, and the purchaser of the property appeals from the order.
H. V. Perera, for appellant.—An order staying sale has not theeffect of cancelling the sale, and therefore the sale to the purchaseris valid, unless it can be impeached under section 282, CivilProcedure Code (see Abdin Khan v. Ali Khan1).
Drieberg, K.C. (with Ranawahe), for respondent.— Order of Courtpostponing sale has immediate effect, and the sale is therefore bad.The sale was carried out contrary to the orders of Court (SaintLai v. Umro/O Um Nissa2). Stay of sale takes effect from the momentof pronouncement of order, and not from the moment the order iscommunicated—sale is void. It need not be further proved thatthere was material irregularity before the sale is set aside (HafcumChand Boid v. Kamalanand Singh2).
[Axbar A.J.—Under section 343 the fees of the Fiscal have to bepaid before the order is obtained.]
The Fiscal’s fees vary from day to day. The fees were paid assoon as the order of Court was communicated to Fiscal. This wouldbe a sufficient compliance of the section under the circumstances.Also see section 258, Civil Procedure Code.
H. V. Perera, in reply.—Sections. 342, 343, Civil Procedure Code,are the only sections dealing with adjournment of sale. There is nosection in the Indian Code corresponding to these, and that is why theAppeal Court in India orders stay of sales under conditions differentto ours (Nayinar v. Aiyangar4). Order of Court is only to takeplace when communicated. 33 Cal. not followed.
At most sale in violation of order of Court is an irregularity, and ,we must succeed under section 282, Civil Procedure Code.
Allahabad case can be distinguished as follows: The purchaseris the execution-creditor ; in the present case the purchaser is an ,outsider.
Where a stranger purchases bona fide, sale cannot be set aside, asthere was payment in satisfaction before sale (Yellappa. v.Ramachandra5).
1 10 All. 170.3 (1906) 33 Cal. 927.
3 (1889) I. L. R. 12 All. 96.4 (1909) I. L. R. 33 Mad. 74.
6 (1909) I. L. R. 21 Bom. 463.
( 271 )
Sale after returnable date of writ is no irregularity under section282, Civil Procedure Code. Further, sale was upheld (SuppramaniamChetty v. Tissera1). Section 344 is confined to applications byparties to the action.
December 15, 1925. Dalton J.—
This is an appeal from the District Court of Colombo from anorder setting aside a Fiscal’s sale.
The plaintiff in the action sought to recover a sum of money dueon promissory notes from two defendants, and he obtained judgmentagainst the first defendant for the payment of Rs. 9,140 with interestand costs. On December 11, 1923, the Court allowed executionto issue, property belonging to the first defendant was seized, andwas advertised for sale on October 4, 1924. Whilst thelproceedingstook place in the District Court, Colombo, the property seized wassituated in Habakkala in Jnduruwa, which is stated to be about20 miles from Galle. The sale was therefore to be conductedthrough the Fiscal at Galle.
On October 1 the District Court, Colombo, was moved by theplaintiff (judgment-creditor), at the instance, it is stated, of thefirst defendant (judgment-debtor), for an order directing that theFiscal at Galle be directed to stay the sale. This order was allowed.On October 3 the Fiscal received the instructions from the Courtdirecting him to stay the sale on payment of his charges by thedefendant. The charges were paid the same day.
The instructions from the Court to the Fiscal at Galle appearedto have been conveyed by the hand of one Porolis, who was allegedto be in the employment of one Don Charles Mahagalle, a merchantat Induruwa and brother-in-law of the defendants. They werereceived by the Fiscal about 10.30 a.m. on October 3. The salewas advertised for October 4 at 11 a.m. The place of sale wasabout 20 miles from the Fiscal’s Office. The Fiscal therefore hadnotice of the order of the Court before the sale, and had ample timeto communicate with his officer conducting the sale 20 miles away.The order not to sell, however, never reached the latter officer.It appears that that order was entrusted by the Fiscal’s Deputy tothe same Porolis, who never delivered it. He says he' handed it onto someone else to deliver and he has not seen him since. Thesale was therefore conducted by the Fiscal’s officer at the advertisedtime and date, although the Fiscal was in possession of the Court’sorder staying the sale. It was clearly the duty of that officer toentrust his order to his subordinates or to a reliable person, and totake all proper and reasonable precautions to see that the orders ofthe Court are carried out. Why Porolis or his messenger did notdeliver the order does not appear. No question, however, arises inthis case as to any right of action the purchaser may have againstthe plaintiff or the Fiscal.
1 3 A. C. R. 60.
( 272 )
At the sale the property was purchased by the second defendantfor the sum of Rs. 146, although it was stated to be worth Rs. 3,000.
The plaintiff therefore petitioned that the sale be set aside on theground that it was a nullity, inasmuch as the Court had orderedthat it be stayed, there being a material irregularity, the Fiscal’spower to sell having been countermanded. Plaintiff also allegedfraud and collusion as between the second defendant and DonCharles Mahagalle in respect of the sale, whereby the second defend-ant was enabled to purchase the property, causing the plaintiffto suffer material damages.
From the terms of the petition it would appear that plaintiff wasmoving under section 282 of the Civil Procedure Code. The learnedJudge found there was an entire absence of any satisfactory proofof collusion as alleged, and as a fact that the sale was carried out, inspite of the order of the Court staying it, was attributable to thenegligence of the plaintiff. He came to the conclusion, however, thatthe sale was under the circumstances a nullity, and he therefore set itaside. From the order the purchaser, the second defendant, appeals.
For the appellant it is urged that he was a bona fide purchaser forvalue without notice of any irregularity (if any) ; and further, thatas the order to stay the sale never reached the officer conductingthe sale, the appellant obtained good title to the property ;. thecommunication to the Fiscal was not sufficient, and as the plaintiffhimself had failed to communicate the order in time, it was not nowopen to him to plead any irregularity, as he was to be blamed. Inany case, it is urged that there is no proof of any material injury tothe plaintiff.
The judgment of the learned Judge is based upon decisions inIndian and local Courts, but he does not state if he acts under theprovisions of section 282, section 344, or any other rule of the Codeor other enactment. He refers however to Appnhamy v. Adirian1in which the De Sampayo J. states :—
“ In Goonetilleka v. Goonetilleka2 this Court, while questioning thesoundness of a contention that section 344 was an enact-ment of substantive law, and that in a case which did notfall under section 282 it empowered the Court to setjudicial sales aside under any circumstances in whichjustice to the parties may require that to be done, never-theless allowed that under section 344 Fiscals’ sales mightbe set aside for reasons which would render them voidunder the common law, i.e., for fraud. Applying theprinciple thus recognized, I think that, if a Fiscal's salecan be shown, before it is confirmed, to have been madeunder an entire mistake, when to the knowledge of thepurchaser the exigency of the writ had been fully satisfied,the sale may similarly be set aside under section 344.”
1 (1911) 17 X. L. R. 392.2 (1912) li X. L. R. 272.
( 273 )
In Ahamado v. Fernando1 the Court interpreted the words “ fraudin the conducting of the sale ” as used in Goonetilleka v. Goone-tillelca (supra) in a “ broad sense/1 and also points that fraud in theconducting of the sale is only one of the grounds for an applicationunder section 344 of the Code, That case also deals with thequestion raised as to a purchaser in execution not being a partyto the action. (See also Perera v. Abeyratne,2) As the presentpurchaser-appellant was a defendant in the action, no questionas to his not being a party or being made a party as directed inAppuhamy v. Appuhamy3 can in any case arise here.
In Gunasekera v. Dias 4 the question that arose was as to theconfirmation of a sale after the execution of the writ had beenstayed as regards one of the parties. The order staying the saleas regards one defendant was made by the Supreme Court, andreached the District Court after the sale had already taken place-
RamanChatty v.Siriwardeii e
Bertram C. J. says:—
The order of the Supreme Court directing a stay of executionwas in effect, but not in form, a setting aside of the decreeof the District Court, and it was held in De Mel. v.Dharmaratne5 that if a District Court, after its decreehas been set aside by the Supreme Court, confirms a saleheld in execution of the decree, that order can bevacated.”
Whether or not in this case the order staying execution was madebefore the sale does not appear from the report; it appears probablefrom the way the matter is dealt with in the judgment that therewas an existing order for the sale at the time of the sale, whichwas stayed after it had taken place. In either case, however, it isauthority for the argument put forward on behalf of the plaintiff(respondent) that the sale be set aside. Appuhamy v. Appuhamy(supra) is another case which it was held the provisions of section344 applied. There a question arose as to the stamping of a writ,it being held that the writ under which the sale took place hadnot been duly issued and stamped. The sale was accordingly setaside.
In Muthu Caruppan v, De Mel6 an application was made to setaside the sale under section 282 on account of certain irregularitiesin the sale. One ground put forward in support of the applicationwas that an order of the Court which allowed the decree holder(appellant) to bid for and purchase the properties and in the eventof his becoming purchaser authorizing the Fiscal to give him(appellant) credit up to the amount of the writ, was. not delivered
1 (1919) 21 N. L. R. 137.
(1912) 15 N. L. R. 414.
(1910) 14 N. Lf R.
4 (1920) 22 N. L. R. 85.
6 7 N. L. R. 274.
• 0 X. L. R. 239.
( 274 )
to the selling officer until after the property had been sold. Theapplication was refused as it was found that the decree holder’sagent had undertaken to deliver the order to the selling officer,and it was entirely due to “ the gross negligence, carelessness, andfault ” of the agent that the property had been sold without theorder being communicated to the officer. The Court held thatthe appellant could not take advantage of the fault of his agent toset aside the transaction “ which was otherwise regular.” It is inrespect of these latter words that this case differs from the onenow before us. In both cases it was shown that a decree holderintermeddled with the matter, and in both cases his agent under-took to communicate an order to the selling officer and failed to doso. But the orders were essentially different, in one case onlydealing with conditions of sale, but in the other dealing with theauthority to hold the sale at all. This case is therefore clearlydistinguishable on the facts.
In the course of the argument Counsel also cited several Indianauthorities, and they, it seems to me, offer more direct guidanceand assistance in the question. Section 282 of the Ceylon CivilProcedure Code is represented, with some changes and additionswhich makes the latter rule wider in its application, by rule 90 ofOrder XXI. of the Indian Civil Procedure Code (Act 5 of 1908)which repealed Act 14 of 1882. Section 311 of Act 14 of 1882 isnow replaced by rule 90 of Order XXI. Section 344 of the CeylonCivil Procedure Code is represented with additions by section 47of the Indian Act 5 of 1908. This section 47 is a restatement, withamendations (for it is wider than section 244) of the provisionsof section 244 of Act 14 of 1882. Section 344 is in the followingterms:—
“ All questions arising between the parties to the action in whichthe decree was passed or their legal representatives andrelating to the execution of the decree shall be determinedby order of the Court executing the decree and not byseparate action.”
The material parts of section 47 are as follows :—
“ All questions arising between the parties to the suit in whichthe decree was passed or their representatives and relatingto the execution, discharge or satisfaction of the decreeshall be determined by the Court executing the decree andnot by a separate suit.”
Amongst the questions which have been held to come withinthe provisions of section 47 are all questions in connection with theattachment or sale of property. In Saint Lai v. Umrao Um Nissa(supra) an application was made to the Court by the judgment-debtor to have a sale set aside as being void. The Court executing
( 275 )
the decree had made an order postponing the sale in execution,but that order failed to reach the selling officer, who accordingly■carried out the sale. In holding that the sale was more than anirregularity falling within section 311 of the Code, StraightJ. says:—
“ I think that the sale was an illegal sale just as much as if theCourt tried a cause in respect of a subject matter whichbefore the date of trial had been removed from its juris-diction by an authority having power to deprive it of suchjurisdiction. Under the Code of Civil Procedure theofficer conducting the execution sale derives his authorityand competence entirely from the Court executing thedecree, and it is clear from the powers given by the statuteto such Court that if it does postpone a sale its ordermust have the immediate effect of postponing the sale…. I do not think that the question whether the
order of the postponement did or did not reach the officerconducting the sale is of any serious importance. Whenonce the sale was postponed, all power to hold it went outof the officer appointed …
The learned Judge goes on to refer to the power of the Courtunder the Code to deal with a state of things disclosed andcontinues;—
“ I cannot suppose that it was intended that a Court executinga decree was to confirm a sale which had never takenplace in the sense that it had taken place without authorityor that it was to refuse to set aside such a sale whenbrought to its notice.”
He refers to two earlier cases in which a similar view was adopted,in one of which section 290 of the Code was specially referred to. Ican find no provision of the Ceylon Code similar to section 290, butit seems to me that the matter is amply provided for by the termsof section 344 of our Code. In Prosunno Kumar Sanyal v. Kali DasSanyal1 the Privy Council expressed approval of the fact thatthe Courts had placed no narrow construction on the language ofsection 244 (the equivalent at that date of section 344). It is truethat the claim to have the sale set aside came before the Court on aseparate action, but it was admitted that the question at issue wasone “ relating to the execution, discharge, or satisfaction of thedecree.”
Hukum Chand Boid v. Kamalanand Singh (supra) supports thejudgment of Straight J. In the course of that case it was arguedthat when the Appellate Court had stayed execution, the order of
. Chetty 0.Siriwardene
1 (1889) I. L, R. 11 AU. 333.
( 276 )
the Court only took effect when communicated to the lower Court.It was however held, in the words of Woodroffe J., that—
“ When the Court has said that execution of a decree is notto take place, from that moment the Court to whichapplication has been made for execution has no authorityto execute it, and delivery of possession under the authorityof an order which was not then in force but had beensuspended upon a stay granted by a superior Court is inmy opinion invalid.”
This decision was not followed in Muihubmarasami RowtherXimda Nayinar v. Kuppasami Aiyangar (supra), but in any case thelatter decision cannot be of any assistance to the appellant, for itis not questioned that the order of the Court staying the sale wascommunicated t« the Fiscal before the sale. Apart from this, Iwould follow the earlier authorities I have cited. It may be alsopointed out that in Ramanathan Chetty v. Arunachalam Chetty1the Court did not follow the decision in 33 Madras 74, one Judge dis-senting from that decision, and the other distinguishing it on the facts.
We were referred then by Mr. Perera to the Privy Council decisionin Zain-ul-Abdin Khan v. Mnhamed Asghar Ali Khan2 as anauthority in support of his argument that the sale could not be setaside as against a bona fide purchaser who is not the decree holder.It is true that there is a distinction to be drawn between decreeholders who come in and purchase under their own decree which isafterwards reversed on appeal,and a bona fide purchaser who comes inand buys at a sale in execution of a decree to which they were noparties and at 'a time when that decree was a valid decree and theorder for sale was a valid order. But even if the purchaser in thematter before this Court was a bona fide purchaser and no partyto the decree (he is in fact the second respondent in the action) theorder for sale had been stayed andso the authority has no application.Similarly in Vellappa v. Ramachandra (supra), there was no ques-tion that the sale had not been held on a valid order in force at thetime of the sale. In Wickremasinghe v. Jeewalhamy3 the SupremeCourt has held that in applications under section 282 to set sales asideon the ground of irregularity it can make no difference whether thesale is to strangers or to the execution-creditor. With regard to thatauthority itis notnecessary todomore'than pointoutthatthe sale herewas more than an irregularity falling within the terms of section 282.
The last matter to which I would refer is the argument, which wasnot pressed, that the stay of proceeding was bad and did not con-form to the requirements of section 343 of the Code, inasmuch asthe order was made before payment of all the Fiscal’s fees thendue. The practice that obtains, we were informed, is for the orderto state that all fees due shall be paid before the order is acted upon.
1 (1913) I. L. R. 38 Mad. 766.* (1887) I. L. R. 10 All. 166.
* (1906) 2 A. C. R. 160.
( 277 )
In this case all the fees due to the Fiscal were paid immediately onthe order being handed to him by the plaintiff’s agent. In practiceit appears almost impossible to ascertain what the fees may be beforethe Fiscal received the order, although no doubt a sum might bedeposited to cover the fees. From the words of the section it appearsto be framed for the protection of the Fiscal, and I am not preparednow to rule that where the order stays that the fees are to be paidand they are paid the terms of section have not been compliedwith.
I would accordingly hold for the reasons given that the sale wasvoid and should be set aside.
I would therefore dismiss this appeal, with costs.
This is an appeal by the appellant against the order of the DistrictJudge setting aside the sale of a property bought by the appellant ata Fiscal’s sale on a writ issued at the instance of the first respondent,who was the judgment-creditor in this case, against the propertyof the second respondent to this appeal, the judgment-debtor. Itappears that the writ of execution was issued to the Deputy Fiscalat Galle, and by virtue of this writ, the property in dispute, whichis situated about 20 miles from the town of Galle, was seized andadvertised for sale at 12 noon on October 4, 1924.
On October 1 the judgment-creditor, at the instance of hisjudgment-debtor, the second respondent, obtained an order of theDistrict Judge staying the sale, and it is in evidence that this orderwas in the hands of the Deputy Fiscal, Galle, at about 10.30 a.m.on October 3.
The Fiscal’s charges, the payment of which was a conditionprecedent to the stay of the sale as expressed in the order, wereduly paid to the Deputy Fiscal, and an order from the DeputyFiscal staying the sale was handed by him to the person bringingthe order of the Court, before 11 o’clock on October 3, for deliveryto the Fiscal’s Arachchi, who had been authorized by the DeputyFiscal to hold the sale on the spot. The sale, as I have said, wasadvertised to take place at 12 noon on October 4, and it took placeat the appointed time, because the mandate of the Deputy Fiscalcountermanding the sale was never received by the Fiscal’sArachchi. Thereupon, by a petition dated October 31, 1924, thefirst respondent, before the sale could be confirmed by the DistrictCourt, applied to the Court to set aside the sale op. the followinggrounds:—
That the sale was a nullity because it was held after the order
of Court to stay the sale had been made.
That there was a material irregularity in the sale owing to the
reason stated in paragraph (1) above.
t 278 )
That the appellant had fraudulently purchased this property
in collusion with the second respondent.
That the first respondent had suffered substantial damages.
It is necessary to note here that this was an application by thefirst respondent, the judgment-creditor, and that the purchaser-appellant and the second respondent to this appeal, the judgment-debtor, were both made respondents in the application made to theDistrict Judge. The District Judge, while holding that the issue offraud and substantial damage to the first respondent to this appealhad not been proved, has set aside the sale, on the ground that thesale was void, as it was held after the Court had stayed the sale.
The appeal is from this order, and it is contended that the sale isvalid in spite of the order staying sale.
We have had tb*». benefit of a full and able argument by Counselon both sides, and I will proceed to state the reasons which induceme to think that the order of the Court was right.
The Deputy Fiscal is an officer of the Court and acts on theauthority of Court, and he is authorized to delegate his powers ofselling property on writs issued to him to any of his officers undersection 258 of the Civil Procedure Code and the Fiscal’s Ordinanceof 18(57. The order to stay the sale was in the hands of the DeputyFiscal at 10.30 a.m. on October 3, and he had ample time tocommunicate with his Arachchi and to stay the sale, which wasfixed for 12 noon the next day. No evidence has been led that itwas impossible to do this for any particular reason. On the contrary ^the evidence discloses the fact that the Deputy Fiscal chose toentrust his directions to the messenger who brought the Court orderto him. If so, this messenger must necessarily be regarded as theagent of the Deputy Fiscal chosen by him for this purpose. Thatbeing so, the authority quoted by Mr. Drieberg, Saint Lai v. UmraoUm Nissa (supra), applies with double force. In that case StraightJ. went even to the length of holding that immediately the Courtstayed the sale “ all power to hold it went out of the officer appointed,and ho, though no doubt in this particular case without beingaware of it, was functus officio," and that it was immaterial to thequestion whether the order of the postponement did or did notreach the officer conducting the sale. In this case, in my opinon,the order to stay the sale immediately superseded the writ, and theFiscal had no power to act on the writ without further directionsfrom the Court. If further authority be needed for this proposition,it will be found in Ramanathan Chetty v. Arunachalam Chetty (supra)and H. C. Boid v. Singh1 and impliedly in Gunasekera v. Dias (supra).
Mr. Perera, for the appellant, sought to distinguish these cases byarguing that the position here was different to that in 12 Allahabadquoted above, and that the law must be interpreted in a differentsense when the purchaser is a bona fide purchaser, and not the decree> (1905) I. L. R. 33 Cal. 927.
( 279 p
holder; and hecitedthe Privy Council decision inZain-ul-AbdinKhanv. M. A. Ali Khan (supra). But I agree with Mr. Drieberg that thiscase has no application to the facts of this case. Sir B. Peacock whendelivering the judgment of the Privy Council, stated expressly in hisjudgment that “Before the judgment of the Privy Council and beforethe decree of the High Court which reversed a part of the originaljudgment of the subordinate Judge, the plaintiffs in that suit whoare now some of the defendants, executed their decree, and severalsales took place under that execution …. there is agreat distinction between the decree holders who came in andpurchased under their own decree which was afterwards reversed inappeal, and the bona fide purchasers who came in and bought atthe sale in execution of the decree to which they were no partiesand at a time when that decree was a valid decree and when the orderfor the sale was a valid order ”
I have put the relevant words in italics, which distinguish at oncethe facts in that case from those here. When the sales referredto in Privy Council case were held, the decree was still in force andhad not been modified or set aside. Here at the time of the salethe order to stay sale had already been made, and that order was inthe hands of the officer responsible to the Court, and with whomalone the Court had any dealings in law, namely, the Deputy Fiscal,in ample time for him to communicate with his Arachchi.
The case of Velappa v. Ramachandra (supra) can be distinguishedfrom this case, because here there was an order from the Court takingaway the authority of the Fiscal to sell. Nor do I think thatthe case of Nayinar v. Aiyangar (supra) is sufficient authority forthe proposition put forward by Mr. Percra. It is a short judgment,and has been expressly dissented from in the later case reported in38 Madras quoted above.
Mr. Perera then sought to draw a fine distinction between the wordsof sections 344 and 282 of the Civil Procedure Code. He is rightwhen he says that this cannot be regarded as an application undersection 282 of the Civil Procedure Code, because that section requiresproof by the judgment creditor that he has suffered substantial in-j ury, and this has been negatived by the finding of the District Judge.
Mi Perera then argued that this application could not be regardedas one coming within section 344 of the Civil Procedure Code,because that section only referred to an application by parties tothe action; he further argued that the only extent to which theSupreme Court had applied that section was to set aside salesto the decree holder, and even then only when the sale was vitiatedby the common law, for example, by fraud.
But there are cases in which section 344 has been applied andin which outside purchasers (who were not parties to the originalaction) were affected. (See Appuhamy v. Appuhamy (supra)', Palani-appa Chetty v. Usubu Lebbe} and Perera v. Abeyratne (supra).)
1 (2923) 24 N. L. R. 361.
( 280 )
I should like particularly to call attention to the extract fromthe Privy Council case quoted by Pereira J. in the 15 N. L. R. case.The application here is by the judgment creditor, and he is complain-ing on a point which relates to the execution of the decree. So heis well within the provisions of section 344 of the Civil ProcedureCode. He has made his judgment debtor a party to the application,and if his application affects the position of the purchaser, that isno reason why the judgment creditor’s application should be rejectedas not coming within section 344. In the words of the judgmentof the Privy Council: “ Their Lordships are glad to find thatthe Courts in India have not placed any narrow construction onthe language of section 244,” corresponding to our section 344, “ andthat when a question has arisen as to the execution, discharge,or satisfaction of a decree between the parties to the suit in whichthe decree was passed, the fact that the purchaser, who is noparty to the suit, is interested in the result has never been helda bar to the application of the suit. ” (Sanyal v. Kali Das Sanyal(supra).)
Even if sections 344 and 282 do not apply to this case, it will benoticed that a Fiscal’s sale has to be confirmed by the Court undersection 283. The Supreme Court, in the case reported in 24 N. L. R.85, expressed the view that the Court had the power to refuse toconfirm the sale for a similar irregularity.
Sir Douglas Straight in 12 Allahabad 96 quoted above came to asimilar conclusion. To quote his words : “I cannot suppose that itwas intended that a Court executing a decree was to confirm a salewhich had never taken place in the sense that it had taken placewithout authority or that it was to refuse to set aside such a salewhen brought to its notice.”
As Edge C.J. stated in Prasad v. Rai,1 one must assume suchpowers are inherent in a Court by implication.
The above authorities also dispose of the point taken by appel-lant’s Counsel that section 344 only applies to applications in whichthe decree holder is the purchaser, and only where the sale is attackedon the ground of fraud.. It is true that in the case of Appuhamy v.Adirian (supra), De Sampayo J. referred to section 344 as onlyauthorizing the setting aside of Fiscal’s sales for reasons which wouldrender them void under the common law, i.e., for fraud. But in thevery next sentence, although he qualified it by reference to the factsof the particular case, he seems to imply that a sale may be set asideunder section 344 if it can be shown before the sale is confirmedthat it was held under a mistake. I fail to see why section 344cannot be resorted to set aside an obviously illegal sale when it isadmitted that it can be so utilized to set aside a sale for reasonswhich would render it void under the common law.
1 I. L. R. 19 Cal. 683.
( 281 )
It Is on this footing that one can explain the ratio decidendi in theoases where sales were set aside on the ground that they were basedon Amts which had not been properly stamped. (See PalaniappaChetty v. Samsudeen1 and Wickremasinghe v. Jeewathamy (supra).)
In the latter case Lascelles A.C.J. stated “ it is true that thethe original application to set aside the sale did not proceed uponthe ground that the writ was unstamped. But I think it wascompetent for the Judge when an irregularity going to the root ofthe authority to the Fiscal was brought to his notice to set the saleaside. This Avas the course taken by this Court in PaianiappaChetty v. Samsudeen (supra), where the fact that the writ a'&sunstamped appears to have been brought to the notice of the Courtfor the first time during the hearing of the appeal.”
Mr. Perera also argued that the order to stay the sale was voidbecause it did not comply with the terms of section 343, which forbidsthe making of such an order before payment of all Fiscal's feesthen due. But the order directed the stay of the sale on paymentof the charges to the Fiscal, and it is admitted that the chargeswere so paid as soon as the order reached the hands of the DeputyFiscal on October 3. The terms of section 343 relating to thepayment of these charges are merely directory, and I think theconditional order followed by the payment was a sufficient com*pliance of the provisions of the section.
For the reasons stated by me I think the order of the DistrictJudge was right, and I would dismiss the appeal, with costs.
Akbax A. T.
'8N.L. J?. 32$.