101-NLR-NLR-V-54-B.-K.-BAPTIST-et-al-Appellants-and-L.-EKANAYAKE-Respondent.pdf
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L. M. D. DE SILVA J.—Baptist v. Ekanayake
1952Present : Pulle J. and L. M. D. de Silva J.
33. K. BAPTIST et al., Appellants, and L. EKANAYAKE,Respondent
S. C. 130—D. C. Galle, 439
Sale under mortgage decree—Discretion of Court to set it aside—Scope of.
On the date of a hypothecary sale a person distributed pamphlets amongprospective purchasers to the effect that the interest of the mortgagor wassomething other than that described in the mortgage decree, and the saleadvertisement. The pamphlet deterred many persons from bidding anddepressed very substantially the amount which was realised at the sale. Forthis sole reason the sale was set aside on application made by the judgmentdebtor.
Held, that the mere fact that the title of the mortgagor was disputed at thesale was not by itself a reason for setting aside the sale.
^^.PPEAL from a judgment of the District Court, Galle.
J. M. Jayamanne, for the purchasers appellants.
Malcolm Perera, for the defendant respondent.
Cur. adv. vult.
December 10, 1952. L. M. D. de Silva J.—
In this case the defendant mortgaged to the plaintiff certain undividedshares and other interests in a land. Decree was eventually enteredunder which in default of payment the premises mortgaged by th&defendant were ordered to be sold. These premises were correctlydescribed in the schedule to the decree which referred, inter alia, to theinterest of the defendant in a land called Gederawatte thus :—
All that undivided plus 1/40 parts of the soil and soil share treesshare of the planter’s share of the plantations standing on the middleportion £ part of the planter’s share of the three plantations standingon the Western side of the said portion together with the entirety oftiled white washed house 13 cubits standing thereon of the land calledGederawatta.««
A commission for the sale of this interest, which in its description showedsome sighs of indefiniteness, duly issued and a sale was held. On theday of the sale one Suriaratchi who described himself as the plaintiff inPartition case No. 3,922 distributed pamphlets among prospective pur-chasers to the effect that the interest of the defendant in Gederawatta(also known as Gamage Divelwatte) was something other than that
L. M. D. DE SILVA J.—Baptist v. Ekanayake
429
described in the decree and the sale advertisement. The learned DistrictJudge has found that the pamphlet deterred many persons from biddingand depressed very substantially the amount which was realised at thesale. We do not doubt the correctness of this finding. For this solereason the learned District Judge relying on the case of Coder et al. v.Moha/med et al. 1set aside the sale on application made by the judgmentdebtor. With all respect we do not think the learned District Judgehad sufficient reason for the order he made.
In the case referred to it was held by this Court “ that when sales areheld by an auctioneer acting on orders of the Court, and selling aland on conditions of sale approved by the Court, and subject to theconfirmation of the sale by Court, the question' that really arisesis whether in setting aside the sale, or in refusing to confirm it, the Judgeis exercising properly, and in a judicial manner, a discretion which he hasexpressly reserved to himself. When a Judge is considering how heis to exercise that discretion, I do not think he is limited to the groundsupon which sales held by the Fiscal are set aside. In this instance in theview taken by the Judge of what actually happened on the oocasion of thesale, it is impossible for us to say that he has exercised his discretion ina wrong or improper manner and, therefore, we ought not to interferewith his order ”.
The discretion which a District Court exercises in an application toset aside a sale under a mortgage decree should not be lightly interferedwith. But it is a judicial discretion and, if on examination, it is foundthat the reasons which influenced the learned Judge are entirelyinsufficient then this Court has to interfere.
On a sale under a mortgage decree the right, title and interest of themortgagor is sold and this may, on an examination of title, prove to be lessthan the interest mortgaged.
As stated by the auctioneer who held the sale, persons disputing thetitle of the mortgagor in the interest mortgaged not infrequently informprospective purchasers that the title is disputed. If in fact the claimasserted by a disputant is genuine and sound and the mortgagor’s titleis imperfect the disputants, to say the least, often save themselves thetrouble and expense of litigation with a purchaser in this way. If theclaim asserted is not genuine and made at the instance of a prospectivepurchaser purely with the object of depressing the price the judgmentdebtor may be able to find relief in appropriate civil or criminalproceedings but that is not a matter for our decision in this case. Bethat as it may the mere fact that the title of a mortgagor is disputed at asale is not by itself a reason for setting aside a sale. It may, combinedwith other facts, afford ground for such a consequence. In this case thelearned Judge has not found, and there is no evidence upon which wecan say, that the purchaser was responsible for the distribution of thepamphlets. Further there is no material whatever in this case uponwhich it can be suggested that the claim asserted by Suriaratchi wasnot genuine. Even in the affidavit supporting the petition the judgmentdebtor has not stated that he was entitled to the interest mortgaged nor
1 {1938) 40 N. L. It. 136.
430
SWAN J.—Weeraaooriya v. Excise inspector, 1Mullaitivu
has he given evidence to that effect. It is of course impossible to stateexhaustively the circumstances in which a court should set aside a salebut the sole reason given by the learned District Judge is in our opinionclearly insufficient.
We would therefore set aside the order of the learned District Judge ofthe 13th March, 1951, and send the case .back for further proceedingson the basis that the sale held on the 7th August, 1950, was valid.
PtrLiiE J.—I agree.
Order set aside.