( 307 )
SINNO APPU v. DE SILVA.
D. C., Galle, 5,172.Fiscal'8 sale—Irregularity in publication and conduct of sale—Substantial injury
to judgment-debtor—Civil Procedure Code, s. 282.
Where the boundaries of the land seized by the Fiscal were fullydescribed in the seizure report, but not so fully given in the notice ofthe sale,—
Held that, as the circumstances connected With the attendance ofbidders and competition between them showed that there was no sub-stantial injury directly traceable to any irregularity in publication of thesale, the sale Was one that could not be set aside under section 282 ofthe Civil Procedure Code.
Per Browne, A.J. (dissentienle Monckeiff, J.), that the DistrictJudge was right in holding that the meagre description in the notice ofsale Was a material irregularity.
HE only issue in this case was whether any material irregularity
in publication or conduct of a Fiscal’s sale held, on the24th July, 1S99, had resulted in substantial injury to the petitioner,who had complained to the District Judge under section 282 ofthe Civil Procedure Code.
The land in question was sold on the 24th July, 1899, being 105acres in extent, of the appraised value of Rs. 10,000. The amountrealized was Rs. 5,000. The judgment-debtor moved the Court toset aside the sale, chiefly upon the ground that the sale was notproperly advertised, and that it was held about half an hourbefore the appointed time.
As regards the first irregularity, it was said that in theseizure report the land was fully described as “ all that Mahagoda-“ mukalana, the houses, stores, plantations, and the citronella oil
September 1821, andOctober 19.
( 808 )
1900.“millstanding thereon, exclusive of the portion bearing Nos.
September 86*•947,957t and the portion marked letter B appearing in the plan
October*19.“No.1,573 thereof, situated at Mirigama in Weligam korale,
—“containing in extent 105 acres, and bounded on the north by
“ boundaries fully given.”
In the notice of sale, the land was described as follows: —
” At Midigama all that land called Mahagodamukalana, with all” the buildings, stores, and citronella oil mill standing thereon,“ excluding the lots marked Nos. 947, 957, and B in plan No. 1,573,“ containing 105 acres, Bs. 10,000.”
As regards the second irregularity, it was said that the sale wascommenced and concluded before 12 noon, whereas it should havebeen held at 12 noon.
The District Judge found as follows:—
“ I cannot say I believe the petitioner and his witnesses, whostate that the sale took place before 12 noon.
“ They made no complaint of this to the officer who conductedthe sale or to the Fiscal.
“ I think it is an after thought, and I see no reason to disbelievethe officer who conducted the sale., who says it took place at theadvertised time.
” The land should have been described in the notice of sale asfully as it was described in the seizure report. Section 255 ofthe Procedure Code requires the notice of sale to specify asfairly and accurately as under the circumstances is reasonablypracticable the property to be sold.
“ The meagre description of the land in the notice of sale is, Ithink, a material irregularity.
“ I therefore set aside the sale, and respondent will paypetitioner’s costs.”
The purchaser in execution, who was respondent to the petitionof the judgment-debtor, appealed.
In appeal, the case was argued on the 18th and 21st September,1900.
Pieris, for appellant.
Wendt, Acting A.-G., for judgment-debtor, respondent.
Cur. adv. vult.
19th October, 1900. Moncreiff, J.—
The order of sale in this case cannot be set aside under section282 of the Civil Procedure Code, unless the notice of sale containeda material irregularity by reason of which substantial injuryresulted to the petitioner. I doubt whether there was any materialirregularity in the notice. The Fiscal is not required by section
( 309 )
255 to mention the boundaries in his notice of sale, as he isrequired by section 237 in regard to his notice of prohibition; nordo 1 see any proof that the petitioner sustained any substantialinjury if the fact that the property was appraised at Its. 10,000and realized only Bs. 5,000 is proof of substantial injury. I fearthat few debtors whose land is sold by the Fiscal escape substantialinjury. But whether there was substantial injury or not, I cansee neither presumption nor proof that it was due to the supposeddeficiency of the notice of sale. I think the District Judge’sorder should be reversed.
September 18SI, andOctober 19.
Under two writs against the debtor, respondent, a landof his, which the Fiscal had appraised at Bs. 10,000, was putup to auction by the Fiscal, and after the biddings between sixbidders had risen in twenty-one bids from Bs. 1,000 to Bs. 5,000,it was knocked down at that price to the appellant. On petitionby the debtor the learned District Judge has, however, set asidethe sale to him, holding there was irregularity in that the noticeof sale had not described the land as fairly and accurately as underthe circumstances was reasonably practicable, especially in thatits particulars of boundaries, &c., were not at all as full as thosewhich he had given in his notice of seizure. From that order thepurchaser has appealed.
It is to be regretted that the learned District Judge did notdivide the first issue—“ Was there any material irregularity inpublication by which the petitioner sustained substantial in-jury?”—into two issues, viz., Was there such irregularity? andDid substantial injury result therefrom?!—for then his judgmentdoubtless would not have omitted to make the specific findings asto whether there was such injury, and did it result therefrom, ashas been done. Indeed, not only is there neither such findings,but the judgment even suggests that the price bid, Bs. 5,000, mayhave fallen short of the appraisement Bs. 10,000 by reason ofthere having been an outstanding lease with two years yet to run.
Now, the rule of procedure deduced from section 282 byWithers, J., (Amerasakere v. Menika, 3 C. L. R. 30), is clear andsimple: “ You must prove both the material irregularity and thematerial injury, and connect the two as cause and effect.”Lawrie, J., following the Calcutta decisions, held (myself concur-ring) that when ten days’ notice of sale had not been given itwas sufficient to show that the irregularity would naturally causethe injury complained of—that, if substantial injury had beensustained, the presumption is that it was due to the irregularity;
( 310 )
1900. and so it was not unreasonable for the Court to presume that, hadOctober 19.fujj period expired, more persons would have known ofi it
Browne,A.J. (436, D. C., Tangalla, S. C. M. 5th February, 1900). In 803,C. R., Matara, (S. G. M. 20th October, 1893), Withers, J.however held there was nothing to show that the differencebetween the hid and the true value was the natural consequence ofan omission to advertise in the Government Gazette.
Here the notice of sale in the Government Gazette was of “ allthe land called Mahagodamukalana, with all the buildings, stores,and citronella oil mill standing thereon, with the specification bynumbers of certain lots excluded,” containing (query, the wholeproperty or the exclusions?) 105 acres;” but the boundariesfully given in the notice of seizure were not given. When thesewere thus well known to the Fiscal, but not published by him inthe notice of sale, I would hesitate to say his description in thatnotice was ” as fairly and accurately made as under the circum-stances was reasonably practicable,” for it was not as full qua theboundaries as the notice of seizure had been. In that view I wouldagree with the learned District Judge.
But on the issue of whether or not there was substantial injurysustained thereby that was ascribable thereto, I consider thiscase is taken out of the presumption allowed in 436, D. C., Tangalla,by (1) substantial and progressive bids which were made, show-ing the notices did attract bidders, and by (2) the equal possibilityof the cause that the bidding did not reach the appraisementbeing the outstanding term. There was need in this doubt forthe evidence of the other cause, and effect usually given thatcertain intending bidders were not sufficiently apprised of theapproaching sale.
I therefore agree with my brother that the order of the learnedDistrict Judge setting aside the sale should be reversed, withcosts.