066-NLR-NLR-V-06-GORDION-APPUHAMY-v.-MARIA-CULAS.pdf
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GORDION APPUHAMY v. MARIA OULAS.D. C., Trincomalee, 8,702.
Seizure in execution^—Claim, to property seized—Sale notwithstanding claim andorder of Court to stag sale—Order of Court to produce property claimed—Validity of unauthorized sale—Civil Procedure Code, ee. 218, 926, 241,963.
The plaintiff, having obtained judgment againet the defendant in theDistrict Court of Mannar, seized certain movables in Trincomalee, whena claim was made.
Held, that the District Court of Trincomalee, which had power toinvestigate the claim, had also the right to order the production of theproperty claimed, even though the Fiscal had delivered it to a thirdparty on the pretext of being the purchaser at an alleged sale held bythe Fiscal.
A Fiscal who has received a claim which he has preferred to the Courthas no right to proceed with the sale until it has been decided whetherthe seizure was legal or not.
A Fiscal's sale held without excuse or authority does not pass title to;the purchaser, but is a nullity.
T
HE plaintiff obtained judgment against the defendant in theDistrict Court of Mannar and seized in execution certain
movables in Trincomalee said to belong to the defendant, and hadthem advertised for sale on 4th June, 1901. Of the articles seizedone Savial Culas claimed inter olid a boat and one-half of a fishing
1002.
February 17,
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1602. net. The claim was fixed for inquiry in Trincomalee on 17th June,February 17.1901. Fending the result of the inquiry the sale of the propertywas ordered by the District Court of Trincomalee to be stayed.Nevertheless the articles were sold on 4th June, 1001, and boughtby the plaintiff and others, and the plaintiff was allowed to removethe things he had bought. The claimant then moved for a noticeon the plaintiff to show cause why he should not produce them in{Court to abide such orders as may be made in the claim inquiry.
After hearing the parties, the District Judge held that, in viewof the order of Court that the sale fixed for the 4th June should]be stayed, no sale could take place, and it directed the plaintiffto bring into Court the articles purchased by him.
The plaintiff appealed. The case was argued on 4th October,1901.
Sampayo, for appellant.
H. Jayawardene, for claimant, respondent.
Cur. adv. vult.
I7th February, 1902. Monoreiff, J.—
A boat and a puthu paddu net having been seized in executionand sold, the claimant moved in the District Court of Trincomaleethat the sale should be set aside. The Judge held that there hadbeen no sale, and that there was nothing to be set aside; but heordered the execution-creditor to produce the property in Court toabide the result of the claim inquiry. From this order theexecution-creditor appealed.
I understand that, as a matter of fact, the claim has, since theorder for production, been sustained; but the property cannot beproduced, because the purchaser at the Fiscal’s sale at once sold itto another person.
It was urged that the decree in the action having been pro-nounced in the District Court of Mannar, and the articles inquestion having been seized within the jurisdiction of the DistrictCourt of Trincomalee, the application to set aside the sale shouldhave been made to the District Court of Mannar. I heed not enterinto that question. The Judge, holding there was no sale toset aside, treated the application as one for the production of theproperty. Under section 241 of the Civil Procedure Code theFiscal’s report of claim was made to the Judge at Trincomalee. Itwas the same Judge’s function to investigate the claim and makean “ order thereon. ” By section 244 he might, upon investigation,release the property from seizure, or by virtue of the followingsection he might disallow the claim. He has, therefore, power todo everything necessary to the making of his order, and I have no
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doubt that he has the power, which even the Fiscal has, to postpone*902*
the sale, and also to order the production of the seized property in11-
Court.Mohotww,
The goods were seized on the 18th May, 1901. Whether orwhen the sale was advertised, we are not told.
On the 29th May the claim was filed. On the 30th May it wasreported, and a stay of the sale was allowed on payment of theFiscal’s fees. On the 31st May the claim inquiry was fixed for the17th June. On the 4th June the property was sold. On the 5thJune the motion to set aside the sale was made. On the 8th Junethe Deputy Fiscal of Trincomalee sent to the District Judge ofTrincomalee the report of the Udaiyar of Kaddukkulam PattuEast touching the sale of the property, stating at the same timethat the order to stay the sale was posted on the day previous tothe sale (t.e., the 23rd June), the olaimant having neglected totake the order to the Udaiyar from this office as directed.”
Surely, the Deputy Fiscal was labouring under some mis-conception. Surely the judgment-creditor has mistaken the law.
It is said that there was no effective stay of the sale, but whatauthority is there for saying that any stay was necessary.
Section 242 of the Civil Procedure Code provides that, “ if theproperty to which the claim or objection applies shall have beenadvertised for sale, the sale may (if it appears to the Courtnecessary) be postponed for the purpose of making the investi-gation mentioned in section 241. ” I do not find that the sale inthis case was advertised when the claim was made. Where is thenecessity to stay? I do not find that a stay of sale is necessaryeven when the sale has been advertised? The Fiscal was, I believe,also the District Judge, and I presume notice of the claim to himwas notice to the Judge. But, suppose he were a different person?
He knows that he has no right to sell property which does notbelong to the judgment-debtor. What right has he to sell pro-perty which has been claimed, and which has been claimed ‘‘ at theearliest opportunity, ” without the authority of the Court, or untilthe Court has adjudicated upon the claim? In my opinion thereis no warrant for ‘ such proceedings. In a case reported in5 N. L. B. 21 it appeared that, in spite of the reference to the Courtof a claim to property seized in execution, the Fiscal proceeded toa sale. The Chief Justice upon that remarked: “ I do not understand how it was the Fiscal proceeded with _ the sale, havingreceived a claim which he had referred to the Court. It seems tome quite clear that his duty was to stay his hand until it hadbeen decided by the Court whether the seizure was legal ornot. ” That opinion is in agreement with common sense and
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1902.
February 17.
MONOBBXVV,
J.
justice as well as with law. From sections 218 and 226 oi theCode, and the form of the writ of execution No. 43 in the secondschedule thereof, it is clear the Fiscal can only sell the judgment-debtor’s property. Section 363 of the Code, moreover, showsthat the Fiscal has no right to sell property which does notbelong to the judgment-debtor; and that if he does, he is notprotected unless he did so in the bond fide belief that it doesbelong to the judgment-debtor. It may be for him to show howhe could have had such a belief if he sold immediately after thereceipt of a claim for the consideration of which he did not wait.
But the sale was stayed. It was stayed on the 30th May.(The Fiscal knew on the 30th May that it was stayed, andalthough the goods were in his hands, he allowed his officer toSell them on the 4th June. He allowed four days to elapsewithout warning his officer not to sell. The Deputy Fiscal coollysays that the claimant “ neglected to take the order to theUdaiyar. ” But I am not aware of any authority which obliges aclaimant to step in and carry the Fiscal’s instructions to bissubordinates. The fact remains that the Fiscal had four days inwhich to do his duty and warn his officer not to sell, and heneglected to do so. He sold the goods, although he knew that thenalfl had been regularly stayed by order of the Court. His neglectis all the more inexcusable, because he himself had power, undersection 342 of the Code, to adjourn the sale.
The question remains—the Fiscal having sold without excuse,without authority, and without a shadow of title, and sold to thedecree-holder of all people, is it possible to pretend that whathe did amounted to a sale, or was it a nullity? I think the lawwould be dangerous which allowed a decree-holder to point outto the Fiscal any property he fancied, buy it at the Fiscal’s sale,and maintain afterwards that the sale was valid. Moreover, I donot quite understand the haste with which the decree-holderresold his purchase to a stranger.
According to section 25 of the Sale of Goods Ordinance (11 of1896), the writ of execution did not prejudice the title to thegoods of a claimant who acquired them in good faith and forvaluable consideration. The writ, therefore, could not prejudicethe claimant’s title.here.
If the buyer at the Fiscal’s sale acquired even a voidable title,it is possible that a bond fide purchaser on the re-sale might haveacquired a good title. But the buyer at the Fiscal’s sale, in thiscase the decree-holder, acquired no better title than the seller.The seller was the Fiscal, who had'no title to the goods, and soldwithout any statutory power or order of a competent Court. If
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– no property passes, a contract of sale is void. The decree-holder, 1902.therefore, did not acquire even a voidable title to the goods. February 17.The Judge was right in considering that there was no sale to be Monobbd*,set aside, and I think this appeal should be dismissed with costs.J*
Wendt, J.—
I agree. I had doubts whether a Court other than that fromwhich the execution issued could entertain an application to setaside a sale on the ground of irregularity in the conducting of it,but this is not such an application. The order for the productionof the property claimed for the purposes of the inquiry into theclaim was within the competency of the Court which isempowered to investigate the claim, and so was the order for thestay of the sale.
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