SILVA v. SELOHAMY et al

026-NLR-NLR-V-25-SILVA-v.-SELOHAMY-et-al.pdf


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Present: Schneider J. and Jayewardene A.J.
SILVA v. SELOHAMY et al.
1—D. C. Kalutara, 806.
Civil Procedure Code, ss. 229,275, 278, 282, 344—Irregularity in conduct-ing sale of movable property—Application to set aside sale—Sunt*mary procedure—Defect in pleadings no ground for refusingrelief—Power of Court to grant relief against damage resultingfrom irregularity in execution proceedings.
An irregularity in publishing and conducting the sale of movableproperty vitiates the sale, provided substantial damage has beenthereby caused to the person impeaching the sale. The partyseeking to get the sale set aside can apply by way of summaryprocedure.
“ It is not the policy of the Civil Procedure Code to throw outapplications for relief for defect of pleadings. On the contrary,its policy could appear to be otherwise.”
As a general principle it should be within the competence of aCourt, whose decree is being executed to take cognizance of andgrant relief where an irregularity resulting in damages is broughtto its notice as having taken place in the course of the executionproceedings.”
The policy of the Code is, where possible, to grant relief in thesame action instead of referring parties to a separate action.
fJ^HE facts are set out in the judgment.
Soertsz, for appellant.
Francis de Zoysa, for respondents.
July 18, 1923. Schneider J.—
Under a writ of execution issued in this case against the plaintiff,a mortgage bond in his favour for the sum of Rs. 300, carryinginterest at 25 per centum per annum, was seized and sold on July 23,1921, when the third defendant, respondent, became the purchaserof the same for the sum of Rs. 9. On August 11,1921, the plaintiffpresented a petition and affidavit praying that the sale may be setaside on the ground that there had been irregularity in the publishingand conducting of the sale, which had resulted in his sufferingsubstantial loss and damage. He also stated that he had no noticeof the sale. Notice of this application was served on the thirddefendant, respondent, who appeared and objected to the applica-tion. It does not appear what his objection was, but the matterwas fixed for inquiry on May 19. There was no inquiry on that day,but the learned District Judge records that he had read throughthe “ petition and application,” and that it appeared to him thatno grounds of irregularity were set out in the pleadings, and that he,
xxv.12(60)29
1923.
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1928. therefore, dismissed the application with costs. From this orderSounihdisb tlle plaintiff has appealed.
J*It seems to me that the order of dismissal should not have been
Silva v.made. If the learned Judge thought that particulars should have
Selohamy been furnished, it was his duty to direct that the particulars besubmitted. It is not the policy of the Civil Procedure Code tothrow out applications for relief for defect in pleadings. On thecontrary, its policy would appear to be otherwise. For instance, itcontains express provisions for curing defects in pleadings and forrectifying errors of misjoinder. The plaintiff has also stated in hispetition that he had no notice of this sale. If he means by thisthat he had not received the notice required by section 229 to begiven by the Fiscal, it would appear that the sale cannot stand aspointed out by this Court in the case of BastianpiUai v. AnapiUai.1it would appear, therefore, that a primd facie case for investigationwas disclosed by the pleadings, and that an investigation shouldhave been held, the pleadings being amended, if the Court sodirected.
I would, accordingly, set aside the order of dismissal, and remitthe case for proceedings in due course.
But, on appeal, the question was raised whether the plaintiff,appellant, could maintain this application. If he cannot, it wouldbe useless to interfere with the order made by the learned DistrictJudge. I would, therefore, proceed to consider whether the applica-tion is in order. The question is one of importance in practice.The argument was that there was no provision in the Code forsetting aside the sale of movable property, although there wasexpress provision for that purpose in section 282 in respect of thesale of immovable property. This argument is opposed to thelanguage of section 276, which clearly indicates that an irregularityin publishing and conducting the sale of movable property willvitiate the sale, provided substantial damage has been caused to theperson impeaching the sale thereby. It was argued that the words“ the sale shall become absolute ” in section 275 indicated that onpayment of the purchase money, and the officer holding the salegranting a receipt for the same the sale became absolute and couldnot be impeached. I do not think that is a sound argument.The section immediately following section 275, as I have alreadypointed out, clearly indicates that the sale can be impeached.It seems to me that the words in section 275 relied upon in supportof the argument, mean no more than that the sale is concludedso far as the Fiscal and the purchaser are concerned. As a generalprinciple, it should be within the competence of a Court, whosedecree is being executed to take cognizance of and grant reliefwhere an irregularity resulting in damages i6 brought to its noticeas having taken place in the course of the execution proceedings.
* (1901) 5 N. L. R* 165.
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Section 344 expressly provides that " all questions arising betweenthe parties to the action in whioh the decree was passed and relatingto the execution of the decree shall be determined by order of theCourt executing the decree, and not by separate action.” This isanother clear indication that the policy of the Code is, where possible,to grant relief in the same action instead of referring parties to aseparate action.v
Section 276 of our Code was adopted from section 298 of theIndian Code of 1882, which was as follows“ No irregularity in publishing or conducting the sale of movableproperty shall vitia® the sale ; but any person sustainingany injury by reason of such irregularity at the hand of anyother person may institute a suit against him for com-pensation, or (if such other person is the purchaser) for therecovery of the specific property and for compensation indefault of such recovery.”
A comparison of section 276 of our Code with the above clearlyindicates that the framers of our Code advisedly refrained fromfollowing the provisions of the Indian Code that an aggrievedparty should seek his remedy by a separate action. It seems,therefore, clear to my mind, that it was intended by the provisionsof section 276 that the sale of movable property in execution shouldbe impeached for any irregularity in publishing and conducting thesale by proceedings in “ the Court esecuting the decree and not byseparate action ” in the language of section 344. The questionthen arises what is the procedure ? There is no express procedureprovided, but there is no reason for not carrying out the intentionof the Code. It seems to me that the framers of our Code appearedto have lost sight of the fact that they should have prescribed theprocedure to be followed under section 276, when they foreborefrom adopting the procedure under the Indian Code that the saleshould be impeached in a separate action. Section 8 of our Codeenacts that in oases where it is not specially provided that pro-ceedings may be taken by way of summary procedure, every actionshall commence and proceed by a course of regular procedure.But looking to the language and scope of chapter XXIV., and alsotaking into consideration that in the absence of any express provi-sion as to the procedure under section 344, in practice, summaryprocedure is followed in applications under that section, it seemsto me that the appropriate procedure for proceedings under section276 is summary procedure. Proceedings under section 276 im-peaching a sale might well be regarded as covered by the provisionsof section 344, and section 375 would seem to indicate that theappropriate procedure is the summary procedure.
I think the appellant is entitled to the costs of the appeal payableto him by the first and thud defendants, respondents. All otherosts will be costs in the cause.
1923.
SCHNKIDEB
J.
Silva v.Selohamy
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1938. Jayewardene A.J.—
Silva v. I agree. Section 275 which declares a sale of movable propertySelohamy absolute on. the payment of the purchase money, and the grantingof a receipt for the same by the officer conducting the sale is clearlyinconsistent with section 276 which enables such a sale to beimpeached, if by reason of any irregularity in publishing or con-ducting the sale, substantial damage has been caused. If a sale isdeclared absolute for the purpose of execution proceedings, theproper procedure would have been to allow a separate action to bebrought to have the sale set aside, a^jprovided for by section 298 oftiie Indian Civil Procedure Code of 1882 and by Order 21, Rule 78,of the Code of 1908—a provision which has not been taken intoour Code. This is, however, only one of the many inconsistenciesto be found in our Code. But the point is directly covered byauthority. In a case (MvUiah v. Fermndo1) decided in 1893,shortly after the Code came into operation, although only reportedin 1907 in "the second volume of the Appeal Court Reports, the pointwas raised and decided in accordance with the opinion expressed bymy brother Schneider. There Lawrie A.C.J. said :—
“ We must deal with the sale as of movable property, viz., of adebt due to the defendant.
“ The sale has not yet been perfected by delivery or assignment;it has not yet become absolute.
** I am of opinion that the 276th section of the Code recognizesthe right of our Courts to set aside sales of movables whenthere has been material irregularity in the publication andconduct of the sale, and when the party impeaching the salehas suffered substantial injury. See also on this point adecision of Clarence J. in 20,307, D. C. Chilaw, reportedin Ram. Eep. 1872—76, p. 284 ; ”
and Withers J. said :—
“…. it was argued on the other side that the appeal
must fail on the ground that the Court had no power to setaside the'sale of movable property on account of materialirregularity in publishing or in conducting the sale.
“ But in view of the case cited to us by appellant’s counsel, andthe provision of section 276 of the Civil Procedure Code,I am not prepared to decide that our Courts are incom-petent to grant relief in the case of substantial damagecaused to a person impeaching the sale of movable propertyfor irregularity in the publication or conduct of the sale.”
This judgment appears to have been considered authoritative,for in Silva v. Dias2 the right to have a sale of movable propertyset aside under section 276 was not seriously, if at all, questioned.
i (1893) 2 A. C.R. 86.8 (2910) 23 .V. L, R. 225.
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Hutchinson C.J. made no reference to the matter in his judgment,but Wood Renton, J. remarked ;—
“ The serious issue, however, is whether such a case for settingaside the sale as will satisfy the provisions of sections 276and 282 of the Civil Procedure Code has been made out.In view of the fact that the former of these sectionsexpressly recognizes the setting aside of a sale of movableproperty on the ground of any irregularity which hascaused substantial damage to the person impeaching it,I am disposed to hold, following the authority of the caseof Mvttiah v. Fernando,1 that the present proceedings arecompetent.”
These are two-judge decisions and binding on this Court, theearlier case being thirty years old. The application should be, asmy brother has laid down, by summary procedure, as being themost convenient and appropriate, and, as I believe, all proceedingsunder section 344 generally are.
With regard to the ground stated in the plaintiff's petition thathe received no notice of the sale, it no doubt provides a prima faciecase calling for investigation, but the plaintiff should be preparedto meet the decision in the Indiaii case of Bo&nash Chunder v. JadobChunder% that the non-service of the notification of sale on thejudgment-debtor is hot an irregularity.
Sent back.
1023.
Jayewab-dene A. J.
Silva v.Selohamy
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