022-NLR-NLR-V-08-ROSENBERG-v.-SILVA.pdf
( no )ROSENBERG v. SILVA.D. C., Colombo, 19,324.Hypothecate action—Mortgage decree—Writ of execution against propertymortgaged—Fiscal's seizure, and sale without advertising in the *' CeylonGovernment Gazette "—Competency of execution-creditor to waive suchpublication—Civil Procedure Code, s$. 25$ and 282—Meaning of " costsand charges." in s. 256—Material irregularity.
In a hypothecary action where a writ of execution against propertyhad been issued and the Fiscal seized and sold such property withoutadvertising the proposedsale in the Government Gazette because he
valued the property at Bs. 850,—.
Held, that as the property was really worth over Bs. 1,000, it shouldhave been advertised interms ofsection256 of theCivil Procedure
Code, and that the non-advertisement was a material irregularity, whichbeing, obnoxious to section 262 of the Civil Procedure Code, nullifiedthe sale.
Where, further, it wascontendedthat,though undersection 282 of
the Civil Procedure Codea petitioncouldbe presentedto the District
Court praying for a nullification of the sale owing to a material irregu-larity in the conducting or publishing of the sale, this section could notbe availed of in the present instance, inasmuch as the execution-creditor,had by non-payment of costs of advertisement,. and by his proctor’sconduct, waived such publication—
Held, that the non-payment of costs by the execution-creditor didnot constitute a waiver, since the costs referred to in section 256 are notcosts of advertisement in the Government Gazette, but in ordinary news-papers; and that it was not even competent for the execution-creditor tomake a waiver.
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HE petitioner in this case was the mortgagee of a certain houseand premises in Wellawatta. He instituted a hypothecary
action and obtained a mortgage decree. On a writ of executionagainst the property being issued, the Fiscal's officer seized theland, and; haying valued it at Rs. 850, did not advertise its
1904.
N uv&riber 18.
( m )sale; nor did he give the petitioner an opportunity of bidding at 1904. >the sale, having three days before the sale assured tile petitioner's November 19.manager that there would be no sale till further particulars hadbeen received from the petitioner.
At the sale the respondent bought the premises for Bs. 550.
The petitioner applied to the District Court that the sale shouldbe declared null and void. The learned District Judge, Mr.
Joseph Grenier, granted the petition, suspecting collusion on thepart of the Fiscal’s officer with the purchaser and his father, PodiSingho.
The purchaser appealed against this order.
Bawa, for first respondent, appellant.
Domhorst, jBl.C., for petitioner, respondent.
Van Langenberg, for Fiscal, second respondent.
Cur, adv. vult.
18th November, 1904. Layard, C.J.—
The plaintiff in this case obtained a money decree for overBs. 2,726 against the defendant, together with a mortgage decreeover certain immovable property and a life policy. On the 25thMarch, 1904, plaintiff applied for execution of the decree by issueof a writ against property; this was allowed, and in due coursethe immovable property mortgaged was seized. The value of theproperty so seized has been found by the District Judge to beover Bs. 1,000, and there appears no reason to think the District. Judge was wrong in so finding. Subsequent to the seizure theFiscal purported to sell the property to the appellant for the sumof Bs. 550. During (he time (he property was under seizure(heFiscal, forsomemysterious reason or other,informed the
planitiff’s manager that no steps had been taken and no sale fixed,and actually asked him for further particulars regarding thevalue of a certain life policy (hat had been mortgaged with the• plaintiff as well as the land, and which was covered by themortgage decree, and told him that no steps could be taken northesale fixeduntil(heexecution-creditor hadfurnished (he
necessary particulars. Notwithstanding this conversation, theFiscal purported to sell under the writ three days after the coiyvernation above referred to, viz., on the 28th April, the landmortgaged to the appellant for Bs. 550. The execution-creditornever heard of this sale and purchase until some time after it hadbeen held; he thereupon moved the Court to set aside the sale ontheground thattherehadbeen a material irrgularity in publish-ingthe intendedsale,viz.,that there had been noadvertisement
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1904. in the Government Gazette, as is required by section 256 of the
18.Procedure Code in respect of immovable property over the
Layabd,C.J. yalue of Rs. 1,000.
It appears to me that it was clearly a material irregularity inpublishing the sale -of a property exceeding in value Rs. 1,000 tofail to advertise it in the Government Gazette, as required bysection 256 of the Civil Procedure Code, for that section distinctlyand emphatically enacts that no sale of such property shall takeplace until it shall have been advertised in the GovernmentGazette once at least twenty days prior to the sale, and an execution-creditor cannot authorize the Fiscal to waive such advertisement,which is required, amongst other reasons, for the protection of theexecution-debtor.
It is argued that, in view of the provisions as to publication inany newspaper in the latter part of that section, it was the duty ofthe execution-creditor to require the publication in the Govern-ment Gazette. It appears to me that the provisions as to publica-tion in the ‘ Government Gazette are imperative, and are not to beexercised at* the caprice of the execution-creditor, the objectbeing, I t£ke it, that any landed proprietor holding property overRs. 1,000, or any execution-creditor holding a mortgage decree overproperty of which the value is above Rs. 1,000, may have an easyand ready means of discovering that a sale is to take place ofproperty in which they may be intersted, and further to enablepersons seeking investments to hear of sales which they maydesire to attend for the purpose of investing their money. It issaid that most people do not read the Government Gazette. True,t may not be so good a place to advertise, as a newspaper, still nodoubt it answers its purpose in giving notice of sales to those whoare sufficiently astute to avail themselves of it. In so large acommunity as are resident at Colombo there are sure to be somewho do look into the Gazette to watch the advertisement of salesof immovable property. Anyhow, in this case there was nonecessity for the execution-creditor to look into the Gazettebecause he had the assurance of the Fiscal that no sale had beenfixed. If the sale had been duly advertised by publication in theGovernment Gazette, it might be argued that, although the Fiscalhad unintentionally deceived the execution-creditor, he was«estopped by his laches in not looking into the Gazette. I do notsay that such, an argument would have been successful, but itmight have been raised.
The provisions of section 256 do not cast the duty on theexecution-creditor of requiring publication in the GovernmentGazette in a case such as the present. On the contrary, the law
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specially directs that no sale shall take place whereJt the property 1904.exceeds the value of Rs. 1,000 until it has -been advertised in the November IS.Government Gazette once at least twenty days prior to the sale. Layabd,C.J,Assuming, however, that it was the duty of the execution-creditorto ask for the advertisement in the Government Gazette, aBsuggested by respondent's counsel, his neglect to do so in this caseis – accounted for by the action' of the Fiscal in saying he wantedfurther information before he could fix the date of sale, andnaturally the execution-oreditor would abstain from demandingpublication in the Government Gazette until he had furnished theFiscal with all the information he required.
It;is argued that he is required to pay under section 256 all costsand charges in respect of advertisement in the GovernmentGazette in advance. The payments in advance of costs and chargesthere referred to are in respect of newspapers other than theGovernment Gazette. I dare say that the Fiscal may be justifiedfn demanding payment of charges attending advertisement in theGovernment Gazette before he advertises therein. If such is thecustom, there is more reason for the execution-creditor thinkingin this case that the date of sale had not been fixed.
The appellant’s counsel contends that the application ofrespondent's proctor for permission for respondent to bid forproperty seized and advertised for sale, which was made on the15th April, 1904, prior to the sale to appellant, was a recognitionby the respondent that the sale* which had been prior to that datefixed, was duly advertised, and amounts to a waiver of the materialirregularity now taken advantage of. If ■ that application hadstood alone it would point to a knowledge by respondent on the15th April, 1904, of the coming sale. That there was any suchknowledge has been, however, rebutted by the sworn testimony ofrespondent that he did not know the sale had been fixed, or that thesale had taken place until after the Fiscal had purported to sellthe property. The application appears to have , been made by therespondent’s proctor in the ordinary course of business, thinkingeverything was in order, but even after he had made it the Fiscalassured the execution-creditor's manager that the date of sale hadnot been fixed. I cannot find that there has *been any waiver bythe respondent of the material irregularity which occurred in thepublishing of this sale, nor can I find anything in his conductwhich estops him from now questioning the validity of the sale.
I thjnk the respondent has clearly established that he hassustained substantial injury by reason of such irregularity. TheFiscal's action took away from him the necessity of looking intothe Government Gazette. If he had looked he would have been
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none the wiser. Intending purchasers of property would, as I saidNovember IS. before,, naturally refer to the Government Gazette. I cannotLatabd,C.J. presume that they would not do what an ordinarily astute persdnseeking an investment would do. Had the respondent attendedthe sale he would have acquired the property, as he was and iswilling to pay a' larger figure than that paid by appellant. Hehad deposed he would purchase the property at any time forBs. 2,500, and is now prepared to pay that sum.
' The District Judge must direct that in the sale to be held underthe decree the upset price shall be Bs. 2,500. and that the execu-tion-creditor is not at liberty to . purchase the property for anysum less than that amount.
Subject to that variation, in my opinion the judgment of- theDistrict Judge was right, and the appellant’s appeal must be dis-missed with costs.
Moncrieff, J.—I agree.