( 28 )
Augiut 88.
August 28, 1899. Lawrie, A.C.J.-—
Since the passing of the Ordinance No. 2 of 1899, a judgment-debtor whose land has been sold in execution cannot thereafter bya conveyance give good title to the land already sold by the Fiscal.
A subsequent conveyance by the execution-debtor becomes voidon the execution of a conveyance by the Fiscal. The grantee is by289th section of the Civil Procedure Code deemed to have beenvested with the legal title from the time of the sale.
There is in this case the special circumstance that the sale inexecution was confirmed by the Court after the decree had been setaside. In my opinion this was wrong; proceedings in executionof an existing decree stand on a different footing from proceedingsin execution of a decree which has been set aside, but the orderconfirming the sale still stands. No appeal was lodged. As thesubsisting order of a competent Court it must be respected.
Another question is whether the purchaser at the Fiscal’s saleis estopped from questioning the right of the debtor to sell. Thatwas partly the ground of our decision in D. C., Galle, 2,479,
3 N. L. R. 341,Here the sale in execution was in July, 1894. The purchaserdid not sleep over his rights. He asked for confirmation of the saleon 24th November, 1894. From opposition and from an appealthe proceedings on the application for confirmation were prolongedtill August, 1895, when the sale was confirmed. The purchasergot the transfer on 4th August, 1896. In my opinion, thepurchaser did not by his conduct lead the execution-debtor orthe purchaser from him to believe that he had abandoned hisrights under the sale in execution. He is not estopped fromchallenging the sale by the debtor on 13th August, 1896.
I would affirm the judgment for plaintiff, holding that he hastitle, and that the defendant has no title, because the conveyancehe holds was granted after a Fiscal’s sale in which title passesfrom the owner to the purchaser, provided that the latter getsthe sale confirmed and obtains a conveyance. If he does so, thelaw deems him to have been the owner from the date of thesale.
Browne, A.J.—
Viravaku was owner of the land in question. Decree wasentered against him, and in execution of the writ thereon(without its being shown that the seizure under the writ wasregistered) the land was auctioned by the Fiscal on 20th July,1894, to the plaintiff as the highest bidder.
( 29 )
Apparently that decree was set aside on the 20th September,1894, and when the purchaser moved for an order confirming thesale to him, the Commissioner on 22nd November, 1894, refusedto grant him confirmation, and referred him to a separate actionto have it decided whether he was entitled thereto or not. Thatorder was set aside by this Court on 21st February, 1895, and theCommissioner was directed to determine that question in theoriginal action, and he subsequently on 27th August, 1895, grantedthe confirmation. He did not enter into possession, nor did heobtain his Fiscal’s conveyance till 4th August, nor register it till13th August, 1896, and the original debtor was thus able on 29thApril, 1896, to sell the land privately to defendant, who registeredhis conveyance on 30th April, 1896. Which title is therefore toprevail ?
We have not had placed before us the facts and circumstancesunder which, with full knowledge of the reversal of his decree,the Commissioner deliberately granted the confirmation of thesale. This action is not one to reform the order then made, andit might be possible that in any such litigation there would beparties necessary thereto other than these two purchasers withtheir rival titles. The plaintiff, it will be remembered, was notthe execution-creditor in the Court of Requests action, and wouldtherefore, in my judgment, be entitled to the full benefit of whatmy lord has said in Tambyah’g Reports, p. 6r that a sale regularlyconducted under a subsisting decree does not become null andvoid on the decree being reversed. Till that order of confirmationis reformed, we cannot lake it to have been regular and valid.
It was contended we should have followed the decree in No. 2,479,D. C., Galle, 3 N. L. R. 341. In that case a purchaser in executionin March, 1889, forbore to take out his Fiscal’s conveyance orregister it till March, 1893, and suffered the debtor to remain inpossession. The latter, in December, 1890, conveyed the land toan assignee of a mortgage .decree and the conveyance was at onceregistered.
The facts of that case however differed essentially from thepresent, in that the latter coming within the provisions ofsection 289, the validity of the debtor’s own conveyance was alwaysdependent upon whether the Fiscal’s conveyance in favour ofplaintiff would be obtained. As soon as plaintiff obtained it andunder the section title vested in him from 1894, the debtor’s con-veyance of 1896 was worthless.
My lord has pointed out how the grounds of estoppel andsuperior equity in that precedent are not here applicable.
I therefore agree that the judgment be affirmed with costs.
August 88.