013-SLLR-SLLR-1998-V-3-RANJANIE-DE-SOYSA-v.-EDWARD-COORAY-AND-OTHERS.pdf
CA
Ranjanie de Soysa v. Edward Cooray and Others
77
RANJANIE DE SOYSA
v.EDWARD COORAY AND OTHERS
COURT OF APPEALISMAIL J.,
A. (REVISION) APPLICATION NO. 886/95
C. COLOMBO NO. 2913/MMARCH 11 AND 26, 1997.
Civil Procedure – S. 282 – Sale in execution – Material irregularity
No irregularity which is not a material irregularity in publishing or conducting asale is a ground for setting aside the sale. It is evident that ample publicity tothe sale had been given and there is no material to support the contention thatthere was material irregularity.
Cases referred to:
Challappa v. Selvadurai 15 NLR 139.
Kandavanam v. Hoole 14 NLR 314.
78
Sri Lanka Law Reports
[1998] 3 Sri LR.
APPLICATION in revision of order of the District Court of Colombo.S. Kangasingham for defendant-petitioner-petitioner.
W. P. Gunatilake with M. Nanayakkara for 6th respondent-respondent.Vidura Gunaratne for 7th respondent-respondent.
Cur. adv. vult.
April 30. 1997.
ISMAIL, J.
The petitioner above-named filed this application for revision dated
and sought by way of relief an order as follows:
setting aside the order made by the learned District Judge ofPanadura on 5.12.95 disallowing the application of the peti-tioner made in case No. 2913/M in the District Court of Panadurato set aside the sale of the property described in the scheduleto the plaint in that case which is the subject matter of thisaction.
setting aside the order made on 31.10.1995 disallowing thepetitioner's application to lead oral evidence to prove theallegations of –
lack of publicity to the purported sale by public auction,
irregularities in the conduct of the said sale.
directing the learned District Judge of Panadura to hold aproper inquiry into her allegations about the said sale by publicauction of the property which is the subject matter of the actionNo. 2913/M conducted on 22.5.1995 by allowing her to leadoral evidence to prove her allegations.
(cO to grant and issue an order staying all proceedings until finaldetermination of this application.”
When this application was supported on 4.1.96 this court heardthe submissions of the counsel for the petitioner and upon a perusalof the order of the District Judge dated 5.12.95 ordered notice to beissued on the respondents and made order staying all proceedings
CA
Ranjanie de Soysa v. Edward Cooray and Others (Ismail, J.)79
until the final determination of this application. The 6th and 7threspondents have thereafter filed their statements of objections andthe petitioner has filed a counter affidavit in reply.
The plaintiffs-respondents filed action No. 2913/M in the DistrictCourt, Panadura, against the defendant-petitioner to recover certainsums of money due to them as assignees on a mortgage bond. Thematter was settled between the parties on 14.9.94. The defendant-petitioner agreed to pay the money due to the plaintiffs-respondentsin instalments and undertook to pay the first instalment of Rs. 150,000on or before 31.3.95. The defendant-petitioner failed to pay this sumof money on the stipulated date and an order was made for the saleof the property. On her application the sale of the property which wasfixed for 26.5.95 was postponed for 28.7.95 on condition that she paysa sum of Rs. 900,000 to the plaintiffs-respondents in full and finalsettlement of their claim. The defendant-petitioner failed to pay thissum of money as agreed and the property which was the subjectmatter of the mortgage bond was sold by public auction on 22.9.95.
Thereafter the defendant-petitioner filed an application dated 5.10.95supported by an affidavit moving to have the sale set aside chieflyon the ground that there was no publicity given to the sale by thedisplay of banners and posters. The defendant-petitioner also allegedimpropriety on the part of the auctioneer in conducting the sale. Thisapplication to set aside the sale in terms of section 282 (2) of theCivil Procedure Code was also supported by an affidavit of the brotherof the defendant-petitioner. An amended application was later filedtogether with the amended affidavits of the petitioner and her brother.
This matter was taken up for inquiry on 31.10.95 and counsel forthe defendant-petitioner moved for permission to lead oral evidence.This application was objected to by counsel for the plaintiffs-respondents and the other respondents. The court having consideredthe submissions of counsel refused the application of the defendant-petitioner to lead oral evidence as two affidavits had already beenfiled in support of the application to set aside the sale.
The defendant-petitioner was permitted to file written submissionsand the other respondents also filed written submissions in reply. TheDistrict Judge has in his order made on 5.12.95 refused the applicationof the defendant-petitioner to set aside the sale on the material placed
80
Sri Lanka Law Reports
[19981 3 Sri LR.
before him. The District Judge had before him in addition to theaffidavits, the report of the auctioneer who had previously obtainedconfirmation of the conditions of the sale from court.
The defendant-petitioner did not immediately seek to challenge theorder made on 31.10.95 refusing her application to lead oral evidence.Instead an application was made to tender written submissions insupport of the application to have the sale set aside. The presentapplication in revision has been filed after the court made its orderon 5.12.95 refusing the application to have the sale set aside. Thedefendant-petitioner now seeks to have the order previously made on
and the order made on 5.12.95 set aside. It was submittedthat she should have been permitted to lead oral evidence to showthe irregularities committed by the fiscal. She relied on the judgmentin Chellappa v. Selvadurai,™ in which it was also held that:
"A person seeking to set aside a fiscal's sale on the groundof material irregularity must lead direct evidence to prove that thesale of the property at an undervalue was due to an irregularity;the mere allegation of inadequacy on the ground on which the saleis impeached is not sufficient evidence of substantial damagecaused by such irregularity".
The defendant-petitioner has suffered no prejudice as she hadalready sought to substantiate her allegation of material irregularitiesin her affidavit and that of her brother and they could not have addedanything further by giving oral evidence. The decision in the casereferred to above does not support the contention of the defendant-petitioner that an opportunity to give oral evidence should have beenprovided to her. It is to be noted that the respondents have in theirwritten submissions tendered to the District Court drawn its attentionto the decision in Kandavanam v. Hoole,i2) in which it was held thatsection 282, so far as irregularity is concerned, is exhaustive; noirregularity which is not a material irregularity in publishing or con-ducting a sale is a ground for setting aside the sale.
The 7th respondent who has been a licensed auctioneer and acourt commissioner from 1962 and who claims to have conducted over1,000 court sales has filed an affidavit together with his statementof objections. He has stated that in addition to inserting paper
CA
Ranjanie de Soysa v. Edward Cooray and Others (Ismail, J.)61
advertisements regarding the auction sale that he has put up bannersand posters at the place of the sale and in the nearby towns. Hehas produced a copy of a poster, a handbill and a receipt from theprinting press which printed them. The petitioner and her brother werepresent at the sale at which bids were made by the 6th respondentand another. He has also set out in detail the manner in which heconducted the sale and as to how he set out from Panadura to thesite taking along with him tom-tom beaters, his clerk and police officersfrom the Ragama Police station.
The 6th respondent who purchased the property at the sale hasin his affidavit stated that he became aware of the sale from anadvertisement in the Divaina newspaper of 7th September ’95. Healso saw posters affixed indicating that the sale of the said propertyby public auction would take place on 22.9.95 at 3.30 pm. He attendedthe auction taking with him cash in a suni of Rs. 200,000 and hemade bids upto Rs. 1,014,000 which was accepted by the auctioneer.He made a deposit of Rs. 140,731 being 10% of the value and thenon 20.10.95 he deposited the balance sum of Rs. 912,600 at theNational Savings Bank at Panadura to the credit of this case. Theauctioneer's conveyance No. 4828 attested by Oliver Perera NP wasexecuted on 5.12.95. The plaintiffs in the said case have withdrawnthe entirety of the sum of Rs. 1,014,000 on an order made by courton 8.12.95.
Although the learned District Judge has not set out the reasonsin detail in his order made on 5.12.95, dealing with every allegationof irregularity made by the defendant-petitioner, it is clear that he hasconsidered the affidavits tendered and the report of the sale madeby the 7th respondent. He has also dealt with every step taken bythe parties previously in the course of the trial. I see no reason tointerfere with his order refusing to set aside the sale. It is evidentfrom the material available that ample publicity to the sale has beengiven. The contention on behalf of the defendant-petitioner that therewas material irregularity in publishing and conducting the sale asreferred to in section 282 (2) of the Civil Procedure Code cannot beaccepted.
For these reasons this application is dismissed. The 6th and 7threspondent would each be entitled to costs fixed at Rs. 750.
Application dismissed.