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Present: Dalton and Akbar JJ.
UKKU AMMA v. PUNCHI UKKU.
217—D. C.Xlnty.) Kandy , 34,664.
Fiscal's sale—Lands worth more than one thousand rupees—Advertisementin “ Government Gazette ”—Material irregularity—Inadequacy ofprice—Proof injury—Civil Procedure Code, as. 156 and 282.Where lands worth rpore than one thousand rupees were soldat a Fiscal’s sale, without being advertised in the GovernmentGazette as required by section 256 of the Civil Procedure Code,—Held, that the sale cannot be set aside under section 282 of theCivil Procedure Code without proof that the alleged damage causedto the judgment-debtor, viz., the inadequacy of the price realized,was due to non-publication in the Government Gazette.
Per Akbab J.—Where several lands are sold under a writ, it isthe aggregate value of the lands sold at the same time which hasto be taken into consideration for the purpose of section- 256.
HIS was an application to set aside a sale under section 282of the Civil Procedure Code on the ground of a material
irregularity in publishing it. The irregularity alleged was that thesale was not published in the Government Gazette as required bysection 256 of the Civil Procedure Code. The property, whichconsisted of an undivided half share of three lands, was sold forBs. 748'50 to the appellant. The learned District Judge held thatthe inadequate price realized at the sale was due to the failure toadvertise in the Government Gazette and set aside the sale.
N. E. Weerasooria, for appellant.
H. E. Garvin, for respondent.
February 13, 1929. Dalton J.—
This appeal arises out of an application to set aside a sale underthe provisions of section 282 of the Civil Procedure Code on the groundof a material irregularity in publishing it. In support of the applica-tion it was urged first that the property, one undivided half sharein three fields, was over Bs. 1,000 in value, and secondly, that thesale was not advertised in the Government Gazette as required bysection 256 of the Code, whereby the applicant had suffered substan-tial injury. Further irregularities, that copies of notices were notposted as required and notice was not given by beating of tom-tom,one gathers from the judgment, were not pressed in the lower Court,applicant resting her case on the first two issues. The evidencealso of the Fiscal’s officer that he duly observed the provisions of843. N. 8487 (11/46)
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1026. section 266 as regards the beating of tom-toms and the posting ofDamOn j. the notices of sale was apparently accepted in the. lower Court.
The two issues were answered in favour of the applicant and the
v. Punchi sa^e vas s®* Made. The purchaser, respondent to the application,Vhku now appeals.'
The evidence shows that Hie Fiscal’s valuation of the propertywas Bs. 850. The Fiscal’s officer gave evidence stating how. hearrived at that valuation. The applicant herself, as administratrixof her deceased husband, valued the property for the calculationof estate duty at Bs. 1,060, which valuation appears-to have beenincreased by the Commissioner of Stamps to Bs. 1,300. It ishardly likely that her valuation for the purpose of estate duty wasan under-estimate, but in her present application before the Courther valuation is Bs. 2,000, which is obviously excessive. All thenecessary facts to help the Court have not been brought out and the-" case has been starved of evidence, but' all these estimates wouldseem to have been made in a short space of time. On January 24,1928, the property was sold to the present appellant for the sum ofBs. 748 '.50. Having regard to the fact that it was a forced sale,when good prices are seldom obtained, taking the valuation of theCommissioner of Stamps as fairly accurately setting out the value,that was not an unduly low price to obtain. The learned trial Judge,however, upon the evidence before him, has come to the conclusionthat the property was worth pver Bs. 1,000 at the time it was seized.In spite of the Fiscal’s valuation, I think the evidence supports hisconclusion. The sale should, therefore, have been advertised in the'Gazette. It is admitted that that was not done. This questionthen has to be answered. Is this such a material irregularity inpublishing the sale as to entitle the Court to set aside the sale ? Toanswer .that question one has to ascertain whether the applicantproved that she had. sustained substantial injury by reason/Ofsuch irregularity. As I stated above, the evidence in the lower Courtis of the most meagre description. The only witness to support theapplication is the applicant herself. She nowhere suggests that thefailure to advertise in the Gazette was directly or indirectly the causeof the property at the sale fetching only Bs. 748; 50. Very shortlyafter this sale, however, she had the property put up for sale again inthe testamentary proceedings in terms of an order of the Court, andon March 6, 1928, it was sold by public auction, fetching" in allBs. 1,525. The purchaser.of one field was her second husbandBanna, and the purchaser of another field was Banna’s nephew.When the Court made this later order to sell, one may reasonablyinfer that it acted in ignorance of the judicial sale that had takenplace less than six weeks before. It was obviously the duty ofapplicant to have brought it to the notice of the Court in thetestamentary proceedings.
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The trial Judge has come to the conclusion that the inadequate
price fetched at the first sale was due to the irregularity pleaded,namely, the failure to advertise in the Gazette. He states he isentitled to infer this because at the subsequent sale the propertiesrealized more than twice the price realized at the Fiscal’s sale. Butthere is no evidence to show that the second sale was. advertised inthe Gazette. The learned Judge states that he has no douht it wasduly advertised and all publicity given to it because of the priceobtained, but there is no evidence at all to support the conclusionthat the enhanced price was due to something being done on theoccasion of the second sale which was omitted at .the first sale.
' Applicant was not ignorant of the date of the first sale. It wouldhave been interesting to have had Banna in the witness box, butone does not know whether he was present at, or bid at, that sale.There is little doubt that as husband of the applicant, he musthave known of it.
Vkku Ammav. Punch*Ukhu
The substantial injury is the alleged inadequate price. ThisCourt has previously held on more than one occasion that inadequacyof price was not of itself evidence of substantial da mage caused bythe irregularity. There is, in addition, here admittedly no directevidence of the connection between the irregularity, that is, thefailure to advertise in the Gazette, and the injury. But one can gofurther than that in the interests of the applicant (Rodman v.Amarasekere1). Is the injury one which may be reasonably andlogically inferred to be the natural consequence of the irregularity ?To me, it seems, the answer is “ no.” As de Sampayo J. with allhis long experience pointed out in Mootu Tamby v. Jayaman,* theclass of persons who are likely to bid for village land are not those .who ordinarily read the Government Gazette. The piece of land inquestion in that case was valued at Bs. 400 and sold for Bs. 260.Advertisement in the Gazette was not therefore necessary, but thelearned Judge above named expressed the opinion that the non-publication of the sale of a bit of village land,, a planted garden,in the Gazette cannot reasonably be said to have affected the pricerealized at the sale. That expression of opinion seems to me to befully applicable to the case before us, and I am quite unable to seethat the alleged inadequate price can be reasonably or logicallyinferred as being the natural consequence of the irregularity.Applicant has not sought to go beyond trying to establish thatconclusion, and in my opinion the trial Judge had nothing beforehim entitling him to answer the second issue in her favour. In theresult, therefore, her application should have been dismissed.
The order of the trial Judge must, therefore, be set aside withcosts and the appeal allowed with costs.
1 23 N. L. R. 327.*2 0. W. R. 247.
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1028. Axbar J.—
TuifcStT0^P®^8,11* was purchaser of certain undivided shares
’ Uhku belonging to his judgment-debtor, which were sold on a writ issuedat his instance by the Fiscal. The appellant bought these un-divided shares for the sum of Rs. 748,50. The respondent, who isthe administratrix of the estate of the judgment-debtor, applied toset aside this sale under section 282 of the Civil Procedure Code onthe ground that there was a material irregularity in the publishingand the conducting of the sale.
The parties went to trial on four issues, and it was admitted thatthe sale was not advertised in the Government Gazette. The DistrictJudge has upheld the applicant’s contention and ordered the saleto be set aside. It is quite clear from the proceedings that themain ground put forward by the applicant, and. upheld by theDistrict Judge, was that the lands wereover Rs. 1,000 in value, andthat it was an irregularity that the sale was not advertised in theGazette as required by section 256. The District Judge held thatthe lands in questions (which had been valued at Rs. 1,050 for thepurposes of the testamentary case and had been subsequently valuedby the Commissioner of Stamps at Rs. 1,300) were sold in the testa-mentary case of the deceased judgment-debtor by public auctionand had fetched Rs. 1,525. There is nothing in the record toshow the circumstances under which this sale was ordered in thetestamentary case, when the land, the subject-matter of the sale,had already been sold by the Fiscal to the judgment-creditor, whois the appellant now.
The first point tajren by Mr. Weerasooria was that, although thethree lands were seized under one writ and were sold at one and thesame time, section 256 of the Civil Procedure Code, which prescribesthe necessity of publishing the sale in the Government Gazette whenthe lands sold under a writ are valued at more than Rs? 1,000, onlyapplied to the case of each land so seized, and that as each of the'lands so seized in this case was less than Rs. 1,000 in value, it didnot matter whether the aggregate value of the lands so seized wasover Rs. 1,000 or not. He cited, as an authority in his favour,a case reported in 2 Ceylon Weekly Reporter, p. 247. This case,I do not think, applies because there although the two lands wereseized on onq writ, yet the two sales took place at different times.
. I do not, therefore, think that the contention of the appellant’sCounsel is entitled to succeed on this point, and the plain words ofsection 256 of the Civil Procedure Code must be given effect to,that is to say, it is the aggregate value of the lands put up for saleat one and the same time upon a writ which has to be taken intoconsideration.
The next point taken by him is, I think, entitled to succeed.His contention is that although the District Judge has found, as
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a. matter of fact, that the lands are over Be. 1,000 in value, and thatthey only fetched half their proper value at the Fiscal’s sale to thejudgment-creditor, yet the terms of section 282 are imperative,namely, that' no* sale is to be set aside on the ground of a materialirregularity unless an applicant proves to the satisfaction of theCourt that he has suffered substantial injury by reason of theirregularity, and he quoted a case reported in 4 Ceylon WeeklyReporter, p. 388, in support of his contention.
The District Judge admits that there is no proof that the under-value was due to the non-publication in the Government Gazette, buthe has supported to give judgment on the authority of a case reportedin 23 New Law Reports, p. 327, in which it was held that directevidence was only insisted upon when injury could not reasonablyand logically be inferred to be the natural consequence of the irregu-larity. He ha.s, therefore drawn this inference, namely, that theirregularity was the cause of the inadequate price. As observed bythe Supreme Court in the case reported in 2 Ceylon Weekly Reporter,p. 247, 1 do not think this inference can be ^rawn in this case.I do not see how the non-publication in the Government Gazette,which, as a matter of fact, is very rarely read by villagers, can havecontributed, to the under-value. As Mr. Justice de Sampayo said,“ the non-publication of the sale, of the bit of village land in questionin the Government Gazette cannot reasonably be said to have affectedthe price realized at the sale.” In the absence of any such evidenceI do not see how the applicant can succeed in an application undersection 282 of the Civil Procedure Code. >
Mr. Garvin, realizing the difficulty, tried to justify the Districtjudge’s judgment on the words of section 256 of the Civil ProcedureCode, namely, that as no sale can take place until it has beenadvertised in the Government gazette, the whole sale was void ah’initio, and he cited a case reported in 9 New Law Reports, p. 150.Mr. Garvin’s argument places him bn the horns of a dilemma. Hehad to admit that his application was under section 282, and thatunder section 282 it was necessary to connect the under-valuewith the non-publication in the Government Gazette. If so, his- , present application under that very section is bound to fail. Apartfrom that, however, I do not think the case reported in 9 New LawReports, p. 150, applies-, because that was a sale under a writ whichwas under-stamped. Therefore, the foundation of the whole salefailed. In this case the writ was good, and although section 256says that no sale of land, over Bs. 1,000 in value, is to take placeunless it is advertised in the Government Gazette, yet section 256must be read along with section 282 in order that one may find outwhat the effec,t of the non-publication is going to lead to. Thecase reported in 4 Ceylon Weekly Reporter, p. 388, is an authority tothis effect, and I see no reason why it should not be followed in this
Vkltu Ammav. PunehiVkku
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1329.. cage. Mr. Garvin took one other point which was not raised at the
Amun .tinquiry in the lower Court, and on the authority reported in Appeal
Court Reports, Vol. 2, p. 123, I must decline to enter into a dis-Purushi cussion of this point.
UJ&u it is true that Mr. Garvin quoted an old cale from the IndianLaw Reports (Calcutta Law Reports, p. 466) which seems tosupport his contention that no direct evidence is necessary to connectthe low value witty the non-publication and that the inference thatthe former was due to the latter can reasonably he drawn from thefacts of that case. The Calcutta Court may- have been right in th6circumstances of the particular case, but, as stated there, eachcase must depend on its own particular facts. In my opinionno such inference .can be drawn here.
therefore, hold that the District Judge is wrong in his judgment,and I would allow the appeal with costs.
UKKU AMMA v. PUNCHI UKKU