090-NLR-NLR-V-14-KANDAVANAM-v.-HOOLE-et-al.pdf
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June 16,1911
Present: Lascelles CJ. and Middleton J.KANDAVANAM v. HOOLE et al.
89—D. C. Batticaloa, 3,145.
Application to set aside Fiscal’s sale—Irregularity—Civil ProcedureCode, s. 282.
Section- 282, so far as irregularity of procedure is concerned, isexhaustive j no irregularity of procedure which is not a materialirregularity in publishing or conducting a sale is a ground forsetting the sale aside.
T
HE facts are set out in the following judgment of the learnedDistrict Judge (G. W. Woodhouse, Esq.) :—
This is an application, in terms of paragraph 2 of section 282 of theCivil Procedure Code, to have the sale by the Fiscal of the eastern halfshare of “ Vattavan ” set aside on the ground of material irregularity.
The material irregularity complained of is that no demand, as requiredby section 226, for the payment of the costs in this case was made fromthe Secretary, who, os administrator in Testamentary No. 530, Batti-caloa, was defendant in this case. Had that been done, the Secretarywould have procured the payment of the costs, which amounted to.only a sum of Rs. 55.
Further, no notice of seizure was served on the defendant. I findthat these irregularities actually exist. But at the same time it isclear from the evidence that the applicant has suffered no substantialinjury by reason of such irregularity.
The value of the land was entered at Rs. 500 in the administrationsuit (No. 530, Batticaloa), and the land fetched Rs. 526 at the sale.The applicant says that the land is worth more than Rs. 1,000, butthere is no evidence of that.
The purchaser made a very reasonable offer to the applicant, namely,that he would consent-to the cancellation of the sale if the price he paidand the interest on it at 9 per cent, from date of payment and costs of thisapplication be paid to him, but the applicant would not consent to it.
I see no ground for setting aside the sale. The. application isdismissed with costs, and the sale confirmed.
Bartholomeusz, for appellant.
J. W. daSilva, for respondent.
June 16, 1911. Lascelles C.J.—
This is an appeal from a judgment of the District Judge ofBatticaloa-refusing to set aside a sale on the ground of certainirregularities. It is admitted that certain irregularities took place
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in connection with this sale, namely, that the demand on the debtor, •?<*»*which ought to have been made under section 226, was not made, T .0^,T «.qand that the provisions of section 240 were overlooked with regard C.J.to forwarding a list of the properties seized of the judgment-debtor. KandavanamThe question which we have to determine is whether these irregu- *• Boolelarities constitute a sufficient ground for setting aside the sale.
Now, in a matter of this sort, it must be remembered that there aretwo sides to the question. On the one hand there is the interest ofthe owner of the property, and on the other there is the interest ofthe purchaser, who appears in this case to have given a fair valuefor the property, and has received a transfer according to law.
It is practically admitted that under section 282 of the Code thereis no ground for setting aside this sale, inasmuch as that sectiononly provides for the avoidance of sales on the ground of materialirregularity in the publishing or conduct of the sale. Here no suchirregularity is alleged to exist But it is said that we have thepower to set aside any sales where there has been an irregularitywhich affects the essence of the transaction.
I am of opinion that section 282, so far as irregularity of procedureis concerned, is exhaustive, and that no irregularity of procedurewhich is not a material irregularity in publishing or conducting thesale is a ground for setting the sale aside. To admit any otherdescription of irregularity for this purpose would be to deprive thesection of its natural and obvious meaning. There may, of course,be hard cases, and the present may be one. It is also possiblethat the appellant may have a remedy other than that which hehas selected ; but I am of opinion that the decision of the DistrictJudge on the question before him was right, and in accordancewith the true meaning and intention of section 282. I woulddismiss the appeal with costs.
Middleton J.—
I am of the same opinion, and would only wish to add that thereason for section 282 being exhaustive on the two questions ofirregularity, may be that these two points are matters which mightvery well come to the notice of .a third party in the case of apurchaser under a Fiscal’s sale in the ordinary course of sale.
Appeal dismissed.