009-NLR-NLR-V-26-SOMETHARA-UNNANSE-v.-SAMALIYA.pdf
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Present; Jayewardene A.J.
SOMETHABA TJNKANSE u. SAMALIYA '
180—C. R. KuTnnegala{ 2,524.
Application for confirmation of sale and issue of Fiscal's conveyanceafter thirty years—Dispute between judgment-debtor and■ purchaser—Prescription—Order of Commissioner of Bequests confirmingsale and ordering issue of Fiscal's conveyance—Appeal lies—Final order.
Where a purchaser at aa execution sale applied for confirmationof sale and a Fiscal's conveyance after thirty years, the Court refusedthe application in view of a dispute as to the title to the land betweenthe judgment-debtor and the purchaser.
" In view of this dispute between the parties, I think it wouldnot be safe to arm the purchaser with a Fiscal's conveyance, whichwould place him in a position of great advantage. "
An appeal lies from an order of a Commissioner of Bequestsconfirming a sale and directing the issue of a Fiscal s conveyanceas it is a final judgment on the matters in issue.
TThB facts are set out in the judgment.
H. V. Perera, for defendant, appellant.
Samarahoon, for purchaser, respondent.
September 16, 1923. Jayewardene A.J.—
In this case the defendant appeals against an order, made at theinstance of a purchaser of property sold in execution, confirmingthe sale of the property, which took place, or is alleged tohave taken place, in the year 1894—about thirty years ago. Thelearned Commissioner has allowed the purchaser’s application for aconfirmation of the sale, and has also strongly indicated his opinionthat it would be useless for the appellant to show cause at thesubsequent application for a Fiscal’s conveyance in favour of thepurchaser, as the purchaser appears to be entitled to a conveyance.The defendant appeals .against this order, and submits that in thecircumstances of the case the order of confirmation ought not tohave been made, and that, even if the order be made, the purchasershould not be granted a Fiscal’s certificate. He contends that theorder of the learned Commissioner practically concludes anyopposition by him to the issue of a Fiscal’s conveyance to thepurchaser. Mr. Samarakoon. on behalf of the respondent has takenseveral objections : that there is no appeal against the judgment inthis case, as the judgment is not a final one. He has referred me2
1928.
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1928.
Jayewah-DENE A. J.
SometharaUnnanae «.Samaliya
to the case of Arnolis Fernando v. Selestinu Fernando,5 but that-case dealt with an application under section S25 of the Civil Pro-cedure Code, and it was held that the order there made was not afinal order so as to entitle the aggrieved party to appeal against itbut I do not think the same considerations apply to an order of thiskind where the order is one confirming the sale and directing theissue of a Fiscal’S conveyance, an order which, I think, must beconsidered as amounting to a final judgment on the matters in issue.He also contends that this being a case in which no interest in land,was involved, but is one founded upon a promissory note, there canbe no appeal without the leave of the Court. But even if there isno right of appeal, I am prepared, in the circumstances of the case, todeal with the question by way of revision. The purchaser says hepurchased the property on behalf of one Hetuhamy alias PauluAppuhamy, who was at the time holding-a usufraetuary mortgageover the property from the judgment-debtor who was the mortgagor.The dase book has been destroyed, and except for the.sale report,,a copy 'of which has been put in evidence, there is nothing-to . show what happened in the case after the sale in 1894.The purchaser says he has had no possession. He says that thepossession has been by Paulu Appuhamy, and Paulu Appuhamyproduced a bond and lease to show that he had acted as the purchaserat the execution sale. On these facts the proper person to applyfor a Fiscal’s conveyance would have been Paulu Appuhamy, but,,of course, Paulu Appuhamy was faced with the difficulty that themortgage bond in his favour had not been discharged. A veryserious question arises in the circumstances as to whether Paulu 'Appuhamy’s possession for ‘ thirty years was as purchaser inexecution or under the mortgage by the defendant in his favour.In view of this dispute between the parties, I think it would notbe safe to arm the purchaser with a Fiscal’s conveyance, -whichwould place him in a position of great advantage. The considera-tions which apply to ordinary cases of purchasers applying for • aconveyance in their favour after they have been in possession for alength of time cannot apply to the facts of this case. I think theparties should be allowed to remain as they are, and it is not advisableto confer any advantage on one side as against the other, and if thepurchaser thinks that he or Paulu Appuhamy has acquired a titleby prescription, let the.matter be decided in>a Court of law, each partyoccupying the position -which they have occupied for. the lastthirty years.*•
I therefore come to the conclusion that the learned Commissioner’sorder confirming the sale and practically directing the issue of a Fiscal’sconveyance is wrong and should be set aside.
The appellant will be entitled to his costs in both Courts.
Set aside.
1 4 A. C. R. 71.