041-NLR-NLR-V-21-AHAMADO-v.-FERNANDO-et-al.pdf
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Present: F.nnia A<C.J. and De Sampayo J.
AHAMADO v. FEBNANDO et al.
3—D. C. Chilaw, 5,744.Civil Procedure Code, ss. 282, 284, and 844—Mortgage of two lands, asone land—Sale of two lands as one land—Debtor has no saleableinterest to one land—Application to set aside sale.
Haintifi obtained amortgagedecree againstdefendant,by
which a land within defined boundaries was ordered to be sold insatisfaction of the debt. The appellant became purchaser at theFiscal's sale, bntbefore completing the purchasebypayment,the
appellantmadeanapplication toCourt that thesalebeset aside,
on the ground that subsequently to the sale he discovered that thedefendanthadnotitle to thesouthern portionoftheland,in
extent 2acres,inconsequence ofa decree whichathirdpartyhad
obtained against the defendant. It was urged that as the landhad become split into two lands by reason of the decision,the
defendant had no saleable interest as to one land.
Held, that the defendant had a saleable interest.
>5 E. L. C. 185.
1919.
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1918.
4Jumadov. Fernando
“ Under section 284 it is the property purported to be sold thathastobeconsidered. In thiscase tbe Fiscaldid notpurport to
selltwolands Idonot see anygeneralobjection to
two portions of land being consolidated and sold as one land. ”
Held, further, that in the circumstances of this case the appellantwasnotentitled to any reliefunder section 344of theCivil Proce-
dure-Code.
rJ1 HE facts appear from the judgment.
Bawa, K.G., for purchaser, appellant.
Ohitty, for plaintiff, respondent.
Bala8ingham, for defendant, respondent.
Gur. aiv. vvlt.
May 16, 1919. De Saupayo J.—
This appeal involves one or two points of civil procedure. Thedefendant by bond dated October 20, 1912, mortgaged to theplaintiff, inter alia, a land called Kadurugahagoda Binwasia, withthe plantation and buildings standing thereon. The land is ofthe extent of 7 acres, and is contained within definite boundaries.The defendant acquired the. land upon a deed of 1904, but it appearsthat his title was ultimately traceable to a Crown grant, whichshowed the land to be a lot marked A 481 on a Crown survey plan.The plaintiff brought this action against the defendant on the bondand obtained a mortgage decree, by which the land as above describedwas specifically ordered to be sold in satisfaction of the debt. A writhaving been issued to the Fiscal in pursuance of the decree, a salewas held on July 13, 1918, when the appellant became the purchaserfor a sum of Bs. 1,7501 But' before completing the purchase bypayment, the appellant made an application to Court that the salebe set aside, on the ground that subsequently to the sale he discoveredthat the defendant had no title to thje southern portion of the land,in extent 2 acres, in consequence of a decree which a third partyhad obtained against the defendant in the action No. 4,334 of theDistrict Court of Chilaw. This appeal is taken from an order of theDistrict Judge refusing the application..
The appellant bases his application on section 284 of the CivilProcedure Code, and alternatively on section 344. The former ofthese sections provides for the setting aside of a sale of immovableproperty at the instance of the purchaser, “ on the ground that theperson whose property purported to be sold had no saleable interesttherein. ” Had the defendant no saleable interest in the landKadurugahagoda Binwasia? Because the defendant had lost titlein favour of a third party to a portion of the land, it does notfollow that he had no saleable interest in the land in any sense ofthe term. Any interest, however small or limited, existing in the
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execution-debtor will be sufficient to support a sale. But theargument on behalf of the appellant is that as a result of the decreein action 4,834, the land got split up into two lands, and thatconsequently, if the defendant had no title to one land, the wholesale is liable to be set aside. If this argument is to be sustained,the appellant should consistently ask for the cancellation of the sale,not of the “ two lands, ” but of the one *' land, ” for which thedefendant had no title, and the Court should be in a position toallocate the purchase money in respect of each land, and set aside.the sale of one land and confirm that of the other. I may sjjatethat the appellant did ask for this relief in the alternative. Thefact appears to me to be, however, that the whole argument restson a fallacy. Under section 284 it is the property which purportedto be sold that has to be considered. In this case the Fiscal didnot purport to sell two lands. Kadurugahagoda Binwasia may'consist of two distinct portions, but the Fiscal, under the exigency ofthe writ, sold the land in its entirety as one property. Even if theFiscal could go beyond the directions given in the writ, I do not see'any general objection to two portions of land being consolidatedand sold as one land. That may under certain circumstancesconstitute an irregularity for the purposes of section 282, but, inmy opinion, the execution-debtor cannot be said to have “ no sale-able interest ” in the consolidated land within the meaning ofsection 284, simply because he happens to have no title to one ofsuch portions. It should be remembered in this connection thatan execution sale does not carry with it a warranty of title, andif the purchaser is mistaken or ignorant as to the extent of theexecution-debtor’s interest in the land which purports to be soldas a whole, section 284 is inapplicable to the case.
1919.
Da
Ahamado.
v.FernanJo
. The provision of section 344 of the Code, upon which also theappellant relies, is more useful for his purpose. It is true that thatsection enacts no substantive law, but provides, as a matter ofprocedure, that all questions relating to the execution of the decreeshall be determined in the same proceedings and not by separateaction, and for the, grounds of an application thereunder we must.look elsewhere. It has been held by Wood Benton J. in Goone-tilleke, v. GoonetiUeke 1 that a fraud in the conducting of a sale is oneof such grounds. I am willing to take the expression “ fraud in theconducting of the sale ” in a broad sense, and to regard it as includingany act of positives misrepresentation or illegal omission, wherebya purchaser is induced to bid for and purchase the property to hisprejudice. The question then is, whether there was such fraud inthis case. The District Judge refused to entertain the applicationas based on section 344, because he thought a purchaser in executionwas not a “ party to the action ” within the meaning of that section.Here the District Judge is in error, and I need only refer to Carpen
1 (1912) 15 N. L. R. 272.
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1919.
Oh SamfayoJ.
Ahamado«. Fernanda
Chetty v. Hamidu 1 and Perera v. Abeyratna * and the authoritiestherein cited.. {The matter, therefore, really turns on the questionof fact, which I have indicated.
In my opinion the materials in the case do not amount to proofof fraud. The only allegation in the appellant’s petition on thispoint is that the plaintiff was well aware that the defendant “ hadno saleable interest in the southern portion at the time of theexecution of the mortgage. ” Nor is this, insufficient allegationsupplemented by evidence at the inquiry, except by the admissionby the plaintiff’s proctor that “ his client was aware, when the landwas put up for sale, that the southern block did not belong to hisjudgment-debtor. ”. No act of actual misrepresentation by whichthe appellant was misled is even alleged against the plaintiff, but it|is contended that he ought to have warned the bidders at the sale,or otherwise prevented the inclusion of the southern portion in thesale, and that his silence or inaction amounts to fraud. I am unableto agree with this contention. The defendant mortgaged to himthe entire land in 1912, and there is nothing to show that at thattime, or at the time of the action, which was brought in 1917, or atthe date of the decree he knew of any defect in the defendant’s title.In the plaint he described the mortgaged property, as he should do,according to the particulars given in the bond, and the decree ofCourt and the writ necessarily contained the same descriptions.
– The plaintiff had no further obligation in that regard, and couldnot control the execution proceedings. He might, of course, havewithdrawn the writ, or announced to the bidders that his execution-debtor’s title was defective, but I am unable to characterize asfraudulent his failure to act up to that counsel of perfection. Anyidea of fraud is further negatived by the fact that he himself bidwithin Bs. 5 of the bid for which the property was knocked down tothe appellant. He took the same risk as the appellant, and no less,and I do not think that the appellant, to whom the principle ofcaveat em-ptor applied, has any reason to complain against the con-duct of the plaintiff. Faced with this result of the proceedings asthey stand, Mr. Bawa wished to have a further opportunity to proveother facts. What these other facts may be we do not know.But it is clear that the appellant’s case must stand or fall on thematerials which he himself put before the Court in support of theapplication. When fraud is alleged, .it must be proved by cogentevidence; and in the absence of such evidence, I am not disposed toallow the plaintiff to be troubled a second time on a question offraud.
In my opinion the appeal should be dismissed, with costs.
Ennis A.C.J.—I agree.
Appeal dismissed.• (1912) IS N. L. R. 414
» (1909) 1 Our. L. S. 166