NEW LAW REPORTSOF CEYLONVOLUME LVIII
1956Present: Basnayake, C.J., and K. D. de Silva, J.USOOF cl af., Appellants, and NADARAJAH CHETYIAR cl al.Respondents
S.C. 1S9—D. G. (Inly.) Colombo, 24,958
Execution of decree—Fiscal's sale—“ Irregularity ”—Civil Procedure Code, ss. 273,2S2 (2)." './
The expression “ irregularity ” in section 2S2 (2) of the Civil Procedure) Codoincludes an illegality.'•
Certain immovable property was sold by the Fiscal in execution of a decree.The property consisted of three blocks of land, and, admittedly, the salo washeld at a place which, although the Fiscal’s ollicor honestly believed it to bopartofthe property ho was selling, was actually 636 feet away from the nearestof the blocks. Clearly the sale did not take place on any of the blocks whichwere advertised for sale.". -. .
. Held, that the fai lure to conduct the salo “ on the sjjot ”as required by section273 of tho Civil Procedure Codo was an irregularity within the meaning ofsection 2S2 (2). Accordingly, tho sale could not be sot aside .on that groundns the applicant had not proved to the satisfaction of tho Court that he hatlsustained substantial injury by reason of tho irregularity. Furthermore, thofailure of the applicant to make his application within tho prescribed time limitwas a fatal omission.
■^LpPEAL from an order of tho District Court, Colombo.
V. Perera, Q.O., with 31. Markhani, for petitioners-appeUaht-s.—Theestate that was to be sold consisted of 3 blocks which were described inthe Government Gazette. The sale was, however, held on the factory blockwhich was G36 feet away from the nearest of the blocks advertised forsale. Section 273 of the Civil Procedure Code lays down that sales ofimmovable properties “ shall be ‘conducted oil the .spot ” unless theCourt has directed otherwise or parties have consented. In this, caseneither.did the Court direct otherwise nor did,the parties'"consent. – Thisis an imperative provision of law. “ The failure'of the Fiscal to hold thesale V at the spot ” advert ised renders the sale null and vbid. The appel-lants notified to Court certain material irregularities .within, the 30 davs
2J. 7f. B 58102—1,503 (0/50)
specified in Section 282 (2) of the Civil Procedure Code. The fact thatthe sale did not take place at the premises advertised was brought to thenotice of the Court- by an amended petition filed after 30 days had lapsed.There is a distinction between irregularities and illegalities. Only materialirregularities need bo notified to Court within 30 days of the receiptin Court of the Fiscal’s report-. The failure to hold the sale at the adver-tised spot was nil illegality which need not be notified fo Court witnin30 days mentioned in Section 282 (2) —See Jayarama Aiyar v. Yridhagiri *,Akshiya Pillui v. Govindarajnlu Chelli-, Pannalal v. Firm Hasan Daila3.
N. Kiunarasinghum, for 1st respondent.
C. 'l'hiuyalingam, Q.C., with JY. Kumarasingham and T. Paralhalingam,for 2nd respondent.—The provisions of Section 273 Civil Procedure Codeare not imperative but directory. The fact that the sale was not held onthe spot advertised for sale is an irregularity which should have beennotified to Court within 30 days as provided for in Section 282 (2) CivilProcedure Code. '•'Irregularity” includes an "illegality ”. See'1'assadak liasul Khan v. Ahmed Hussain*, S/uodhyan v. Jiholnutk5,Finn Tirkha Ram Chnni Lai v. Fakhir Ahmed c.
Car. ado. vitlf.
May 2, 11)50. Fasxayakk, C.J.—
Tins is an appeal from an order under section 282 (2) of the Civil Pro-cedure Code refusing to set aside the sale by the Fiscal of an estate knownas Arawa Estate in execution of a decree in favour of the respondents.
It would appear that there was a mortgage decree for the sale of twoestates, one known as Uva Estate and the other as Arawa Estate. Thesale of both estates was advertised on the same day. After the sale ofUva Estate the Fiscal and his officers proceeded to Arawa Estate whichwas about -i- miles away.•
The sale had been fixed for 2 p.m. oil August 9lh but the Fiscal and hisolliccrs appear to have arrived there earlier and held the sale at 1.45 p.m.Although the Gazette notice stated that Arawa Estate consisted of tlucoblocks which adjoin each other it is in fact not so. The three blocks arcnot adjacent, the smallest of them being far away from the other two andthe two larger blocks being close to each other but not adjoining.
The only point urged by learned Counsel for the appellants is that thesale was not held at tiic spot as required by section 273 of the CivilProcedure Code. Admittedly the sale was held at a place known as thoFactory Flock, wnich was G36 feet- away from tlie nearest of the blocksadvertised for sale, where the rubber factory of the owners stood. ThoFiscal’s officer was under the impression that the Factory Flock was alsopart of the property he was selling and was under an honest mistake as totiic spot on which ho was to sell tho property. It- is clear that the saledid not take place- on any of tho blocks of land which were advertisedfor s;alc.
-« I. H. II. 21 Calcutta GO.
J. L. JI. 21 Allahabad 311.
1939 -4. I. It. Lu/ivro 30.
1 1931/. It. Madras 333 ni .j.ji;.
– 1921 .4. 1. A’. U,virus 773.
“ 1939 .1. I. II. X'J-jjj’tr 233 ul 200.
TIio question that we have to decide is whether the saTc was conductediu accordance with the provisions of section 273 and if it was not whetherthe failure to do so is a material irregularity in conducting the sale withinthe meaning of section 282 (2) of the Civil Procedure Code.
Section 273 reads :—
“ In all cases the sale of immovable pro]icrty shall be conducted onthe spot, unless the court shall otherwise direct, or unless on applieaf ionin writing to the Fiscal or his Deputy the parties shall consent to itsbeing conducted elsewhere.”-
Learned Counsel argues that the. sale was not conducted on the spot,that '■ on the spot ” means on the very land which is for sale, and thatthe failure to comply with section 273 of the C:vil Procedure Code is anillegal^*- and not an irregularity amt that therefore section 282 (2) docsnot apply to it.
Section 282 (2) enables the decree holder, or any person whoseimmovable property has been sold or any person establishing to the satis-faction of the- court an interest in property sold under a decree, to applyto (ho Court to set aside the sale on the ground of a material irregularityin publishing or conducting it.
The question is whether the expression ‘' irregularity ” in section 2S2
of the Civil Procedure Code includes an illegality. I am of opinionthat it does. “ Irregularity ” is a wide expression and includes anillegality. An act- is said to be irregular when it docs not conform tothe principles, rules, or law by which it is governed.
It will be sufficient- for the purpose of this case to state that the saleconducted on the Factory Flock which was owned by the defendants tothis action, though in close proximity to two out of tlio three blocks ofland to be sold, was not a sale “ conducted on the spot ”. But the failureto comply with the provisions of section 273 on the part of the Fiscalis an irregularity within the meaning of section 282 (2) and the Court wasright in not setting aside the sale on the ground of that irregularity as theapplicant had not proved to its satisfaction that he had sustainedsubstantial injury by reason of that irregularity.
Furthermore under sub-section (2) of section 282 a person who seeksto have a sale set aside on the ground of material irregularity shouldnotify the Court of the irregularity of which he complains within 30 daysof the receipt of the Fiscal’s report. In the instant case the complaintabout the failure to comply with the provisions of section 273 was madeafter the period of 30 days and is therefore out of time and the Courthas no power to act on such a complaint.".
The appellant is not entitled to succeed and the appeal is dismissedwith costs. ’
K. D. dk Sii-va, J.—I agree.
USOOF et al., Appellant, and NADARAJAH CHETTIAR et al., Respondents