029-NLR-NLR-V-07-GEORGINA-v.-ENSOHAMY.pdf
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GEORGINA v. ENSOHAMY.
O.B., Galle, 692.
1903.
January gS.
Public holiday—Fiscal's sale held on—Ordinance No. 4 of 1886—CivilProcedure Code, s. 365.
Although section 365 of the Civil Procedure Code mentions onlySunday, Good Friday, and Christmas Day as days on which process incivil cases shall not be served or executed, its effect is not -to rendervalid the execution of civil process on other public holidays declareddies rum by section 4 of the Ordinance No. 4 of 1886.
A sale in execution held by the Fiscal on a public holiday is bad.
T
TTR plaintiff obtained from the Court permission to bid for andpurchase the property seized in execution of the judgment
passed in her favour, but did not attend tbe sale held by theFiscal on the 21st March, 1902, as the Governor had, since thefixing of the sale for that day, declared it to be a public holiday,for the observance of the Mohammedan festival called HadjiPerunal, under the Ordinance No. 4 of 1886.
The Fiscal, nevertheless, held the sale as advertised on the 21stMarch, 1902, and one Karunanayaka was declared the purchaser.
The plaintiff petitioned the Court for a cancellation of the sale onthe ground of substantial injury arising from the sale being heldon a public holiday.
The Commissioner (Mr. J. D. Mason) found as follows: —
“ The petitioner has proved that the Fiscal on a public holidaysold land seized under her writ worth Rs. 200 for Rs. 82. She hassuffered substantial damage. I therefore direct the sale to becancelled ”.
The purchaser appealed.
The case was argued on 14th October, 1902, and 20th January,1903.
Sampayo appeared for the appellant.
H. Jayhwardene, for plaintiff, respondent.
Cur. adv. vult.
23rd January, 1903. Wendt, J.—
The question in this case is whether an execution sale of landheld on f. public holiday is legally valid or liable to be set aside.After the sale had been fixed for the *21st March, 1902. andduly advertised, the Governor by Proclamation under the Holi-days Ordinance, 1886, declared thal day ea “ public holiday ” ir-respect of the Mohammedan Hadji festival. Notwithstanding
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4903. this, .the Fiscal carried ou.t the sale, and I understand the Commis-January S3 sioner to hold that the petitioner (the execution-creditor) suffered.
Wendt J damage *n Consequence, the land worth Es. 200 fetching onlyX’ ' Es. 32.
The Fiscals’ Ordinance, No. 4 of 1867, section 30, in layingdown rules for the execution of process against person and pro-perty, declared that process in civil cases shall not be served orexecuted on a Sunday. Good Friday, or Christmas Day (rule 2).Nothing was said as to holidays. Then came the Holidays Ordi-nance, 1886, which, by section 4, made the Mohammedan Hadjifestival and certain other scheduled days dies non, and directedthat they be kept as holidays. (I suppose dies non is an ellipticalform of the expression dies non juridicus, “ not a court day ”•) Theseenactments came before this Court for interpretation in the caseOf Appa Cutty v. Aysa Umma (9 8. C. C. 121), which was a chargeof resisting an arrest, of the person in execution made upon theHadji festival day. Clarence, J. held that, although the mattermight perhaps have been made clearer, the intention of theLegislature must have been that the scheduled days should bedays not available for service or execution of civil process, undersection 30 of the Ordinance No. 4 of 1867. Clarence, J., refers tothe Civil Procedure Code, which had not come into operation atthe date material to his decision.
The Code, in section 365, re-enacts the old rule 2 verbatim.Although the statutory public holidays were then recognized, itdoes not mention them. It may be said that it was deemed un-necessary to repeat what the Holidays Ordinance had alreadyeffected. Then why mention some only of'the scheduled days,viz., Sunday, Good Friday, and Christmas Day?'-
Whatever the reason may be, I do not see my way to holdingthat the Code, in effect, repealed the enactment in the HolidaysOrdinance quoad all holidays but the three just mentioned. There-fore, following the opinion of Clarence, J., I hold that the salenow in question, being an execution of civil process equally withan arrest of the person, was invalid because carried out on apublic holiday, and I dismiss the appeal with costs.
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