040-NLR-NLR-V-16-OMER-v.-FERNANDO-et-al.pdf
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Present: Lascelles C J. and Wood Benton J.
OMER v. FERNANDO, et cl.
196—D. C. Colombo, 31,171.
Seizure of judgment-debtor's property after death of debtor—Legal repre-sentative not made respondent to application for writ—Seizure amisale void—Civil Procedure Code, s. 341.
If a decree-holder wishes to execute his decree against propertywhich belonged to a deceased judgment-debtor, he must applyto the Court to execute the decree against the legal representativeunder section 341 of the Civil Procedure Code.
Where at the date of the seizure the judgment-debtor was dead,mid the legal representative was not made a respondent to theapplication for 'Writ, the sale was held to be a nullity.
Lascei£es C.J.—The crucial question is whether the sale was anullity—a sale 'which the Court had no jurisdiction to make, orwhether, on the other hand, it Was merely irregular, so that theprovisions of the Code with regard to irregularities in sales areapplicable. It would appear that if the failure to apply undersection 341 is no more than an irregularity, the present ordercannot stand in the' absence of evidence of substantial injury tothe execution-debtor’s estate. If, however, the seizure amountedin. law to a nullity, the property in question was never broughtwithin the custody of the Court, and the subsequent sale wasconsequently void.
r|.HE facts are set out in the judgment.
E. W. Jayewardene (with him Zoysa), for the plaintiff , appellant.—
The respondents did not apply to the Court to have the sale set aside.
The order is therefore, bad.
S. C. Min., May 30, 2898.
1918.
1018.
Omer 0.Fernando
( 186 )
The sale was confirmed without objection; it is too late to takeSteps, in this case to have the sale set aside. Moreover, a mereirregularity is not a ground for setting aside a sale (Silva v. Dias *).
. [Wood Benton J.—Section 282, Civil Procedure Code, deals onlywith irregularities in publishing and conducting the sale. There iBno question oi any irregularity here. The sale is a nullity.]
A separate action should be brought to get the sale set aside.
Once a Court has entered a decree, it is within the jurisdiction ofthe Court to execute the decree. Section 841 does not say thatalter the death of the judgment-debtor no writ can be executedagainst his estate. In this case the judgment-debtor died alter thewrit was issued. The death of a debtor after the issue of writ isnot an irregularity which would vitiate the sale. Counsel citedMalkarjun v. Narpari,s Sheo Brasad v. Hira Lai .*
Bartholomeuez, for the substituted defendants, respondents.—Thepoint whether the sale was bad was raised as an issue in the lowerCourt, and it. is too late to object to that issue in this Court. Aseparate action for having the sale set aside would not lie (PeTera v.Abeyratna et al.*)
The Indian cases cited are no authority for holding that a seizureafter the death of the judgment-debtor is valid. They only holdthat the death of the judgment-debtor after the attachment doesnot vitiate the sale.
Cut. adv. vvlt.
February 6, 1913. Lasceu.es C.J.—
. This is an appeal from an order of the District Judge setting asidea judicial sale in the following circumstances. A writ was re-issuedto recover the balance of the judgment debt, and on August 12,
a land called Hitinawatta was seized, but before the date ofthe seizure, the judgment-debtor died. A sale was held on March 30,
and confirmed on June 10, presumably in ignorance of the deathof the execution-debtor. On June 21, on the motion of the plaintiff'sproctor, the administratrix and administrator of the judgment-debtor’s estate were substituted on the record as defendants.
On August 2 the judgment-creditor’s proctor moved to drawfrom the money in Court the balance due to his client. The substi-tuted defendants were noticed, and also the purchaser, and theformer showed cause against the judgment-creditor’s motion. Thelearned District Judge held that the seizure and sale were bad,inasmuch as they took place after the death of the defendant, andwhile there was no one on the record representing the estate of thedeceased defendant. The sale was accordingly set .aside, and the'amount of the purchase money in Court directed to be returned tothe purchaser.
» (1910) 18 N. L. R. 125.* I. L. R. 116 Bom. 887.
» J. L. R. 12 All. 441.
« (1915) 15 N. L. R. 414.
( 187 )
On appeal it was contended that the order setting aside the salewas bad, inasmuch as it was not made on any application for thatpurpose, and also on the ground that a judicial sale cannot be setaside on the ground of irregularity, however material, unless it isshown that the applicant has sustained substantial injury.
•With regard to the first point, it appears that when the substituteddefendants appeared to show cause against the withdrawal of themoney deposited in Court, they specifically raised the contentionthat the sale was bad, and in effect applied that it should be setaside. In view of the attitude of the substituted defendants, I amnot disposed to attach much weight to the objection that the sale. was set aside without formal application on that ^behalf. Neitherdo I think that it can be contended that the sale could not havebeen set aside without instituting an action for the purpose.
The question arising between the parties was for all practicalpurposes sufficiently formulated; it was a question 4'relating to theexecution of the decree,’* and as such properly determinable undersection 844 of the Civil Procedure Code by the Court executing thedecree, and not by separate action.,
The decision of the Privy Council in Malkarjun v. Narpari1throws much light on the principles which are applicable to difficultiesof this nature. The crucial question is whether the sale was anullity—a sale which the Court had no jurisdiction to make, orwhether, on the other hand, it was merely irregular, so that theprovisions of the Code with regard to irregularities in sales areapplicable. It would appear that if the failure to apply undersection 341 is no more than an irregularity, the present ordercannot stand- in the absence of evidence of substantial injury to theexecution-debtor’s estate. If, however, the seizure amounted in lawto a nullity, the property in question was never brought within thecustody of the Court, and the subsequent, sale was consequentlyvoid.
The answer to this question appears to me to turn on the con-struction of section 841 of the Civil Procedure Code. The meaningof this section, as I understand it, is that if the decree* holderwishes to execute his decree against property which belongedto his judgment-debtor in his lifetime, and which devolved on hisrepresentative at his death, he can do so only in the way indicatedby the Code, namely,, by applying to the Court to execute the decreeagainst the legal representative. The principle appears to be clear.On the death of the judgment-debtor, the dominium vests in hislegal representative. The legal representative cannot be bound byproceedings to-which he is not a party.
It has been held in India (vide Sheo Brasad v. Him Lai a) that thecorresponding Indian section (section 234} applies only to caseswhere, at the death of^ thq judgment-debtor, the property was not11. L. R. 25 Bom. 837.a I. L. R. 12 All. 441.
1018.
Lasoelleb
C.J.
Omer
Fernando
1M&
Lasobllbs
C.J.
Omer 9.Fernando
( 188 )
under attachment. It was considered that property under attach-ment must be considered as in the custody of the law, and thatexecution could issue against such property, notwithstanding thedeath of the judgment-debtor after attachment. But this decisionis no authority for the proposition that a valid seizure can be effectedafter the death of the judgment-debtor, and at a time when nodefendant is on the record, when the notice of seizure required bysection 287 amounts to a notice of prohibition addressed to onewho was no longer living.
I think it is clear that, where the property has not been seizedbefore the death of the judgment-debtor, the legal representativesof the judgment-debtor are not bound by the sale. It is no answerthat the sale in this case was confirmed by the Court, inasmuch asthe property in question was never brought within the jurisdictionof the Court by means of a lawful seizure, and the order confirmingthe sale was made under the mistaken belief that the Court hadjurisdiction, which it in fact had not, to confirm the sale. In myopinion the learned District Judge has come to a correct conclusion,and I would dismiss the appeal with costs.
WooO Renton J.—I entirely agree.
Appeal dismissed.