110-NLR-NLR-V-24-PALANIAPPA-CHETTY-v.-USUBU-LEBBE.pdf
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Present : Bertram C.J. and Garvin J.
PAIANIAPPA CHETTY v. USUBU LEBBE.
152—D. C. (Inty.) Colombo, 4,510.
Civil Procedure Code, m. 282 and 844—Sale under mortgage decree—Trifling and technical irregularities—-Application to set asidesale—Decree that Fiscal should sell—,May a person holding adeputation from Fiscal sell t
Section 282 of the Civil Procedure Code does not apply to asale in execution of a mortgage decree.
ttnder the common law the only irregularities on which anadjudication at a bidding may be set aside are material irregu-larities ; the ■ omission of what is described as a formal solemnity-does no harm.
Semble, a person holding a deputation from a ' Fiscal mayconduct a sale in execution where the mortgage decree directsthat the sale should be by the Fiscal—as what was meant was thatthe sale should, be a Fiscal’s sale in the ordinary sense of the word,and not that the sale should be by the Fiscal in person.
THE facts are set out in the judgment of the Acting AdditionalDistrict Judge (K. Balasingham, Esq.): —
This is an application by a mortgage decree holder (plaintiff) to havethe sale under the mortgage decree set aside. The land was valuedby.the defendant himself at Rs. 45,000, but was sold at the Fiscal’ssale for Rs. 3,200. This by itself is no ground for setting aside the sale.Besides, the valuation at Rs. 45,000 is a gross exaggeration.
1928.
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1683. The defendant with the consent of the plaintiff obtained an orderPafantoypq t° stay the sale in June last. The order was taken out of Court aboutOtietfy July 4. The defendant showed it to the plaintiff, and said that he-Ueubu Lebbe waa g0jBg to Kegalle to have the sale stayed. The defendant saysthat he was unwell, and sent some one else with the order, and thatthat person reached Kegalle too late to deliver the order in time tostay the .sale. The Deputy Fiscal had already left Kegalle few theplace where the sale was to take place, which was 24 miles away fromKegalle. The sale was to take place on July 8, but the messenger wasnot sent with the order till the night of July 7. I am not disposedto believe this story of the defendant.
I hold that plaintiff was deceived by the defendant into the beliefthat the sale would be stayed. It is not true that the defendant wasprevented by a series of accidents from getting the sale stayed in time.But the question for decision is; How far was the purchaser a partyto this fraud ? There is very little evidence to connect the purchaserwith the fraud. The plaintiff’s difficulty in establishing the purchaser'sparticipation in the fraud is increased by the fact that the defendanthimself asks for a cancellation of the sale. I am inclined to the opinionthat this is all a pretence, and that defendant and the purchaser areacting in concert. It is very likely that the purchaser is only theagent of the defendant. But, as I said, there is very little evidenceon which I can base these findings. The defendant and purchaserwent together to the plaintiff and asked for the stay of sale, and spokeabout this debt. They are men of the same village. The purchasernever bought a rubber estate or any estate before this. These areslender materials on which a finding of collusion can be based. Butfor whose benefit did the defendant fail to stay the sale. It cannotbe for the benefit of any casual purchaser. This circumstance rendersthe collusion between the purchaser and the defendant probable.
In any event the plaintiff is in a position to rely on an irregularityin the order to sell issued to the Deputy Fiscal. The decree directsthat the property should be sold by the Fiscal. The order to sell wasissued as a matter of fact to the Deputy Fiscal of Kegalle. This isnot in accordance with the decree. Mr. Justice De Sampayo in Fernandov. Fernando 1 would appear to hold that this irregularity renders thesale null and void. In view of the circumstances of this case, I do nothesitate to give effect to this highly technical objection. I do notthink that the fact that the order to the Deputy Fiscal was written inthe handwriting of the plaintiff's proctor’s clerk, and on a form withthe plaintiff's proctor's name printed on it, estops the plaintiff fromraising this technical objection. I set aside the sale. Each partywill bear his own costs.
Pereira, K.C. (with him C. W. Perera), for the purchaser, appellant:
Drieberg, II.C. (with him E. W. Jayawardene and Schokman),for the plaintiff, respondent.
Mervyn Fonseka, for the defendant, respondent.
1 (1914) 18 N. L. B. 380.
A'cutuorjr 22, 1028.Bertram C.J.—
The original application in this case was to set aside a sale inexecution of a mortgage decree, on the ground of fraud orcollusion between the defendant and the purchaser. The learnedDistrict Judge did not feel justified in basing his order on theground of fraud or collusion, but, having examined the facts,preferred to set aside the sale of what he described as a highlytechnical ground, namely, that though the decree directed a saleby the Fiscal, the order of sale was, in fact, issued to one of theFiscal's deputies. On this ground the learned District Judge hasset aside the sale, and it is against that order tha't the purchaserappeals.
Mr. Jayawardene, who appears for the respondent in the case,urges that, notwithstanding the ground on which the DistrictJudge has based his action, he might be taken as finding thatfraud or collusion in fact existed. The learned Judge does,Indeed, express what can be regarded as little more than a suspicionthat the defendant did in fact deceive the plaintiff in this way.The plaintiff at the request of the defendant had applied for anorder staying the sale. That order was made. The defendant byarrangement took possession of this order, and was to deliver itto the Deputy Fiscal, and so to effect the stay of the sale. Hedid not in fact do this. He gives a number of excuses for hisfailure. The learned Judge suspects those excuses, but he doesnot feel himself justified in implicating the purchaser in the IraudNow, the only possible fraud suggested in this case is one to whichthe defendant and the purchaser must have been parties. Thesuggestion is that the defendant really bought in the propertyhimself at a ridiculously low figure through a dummy in the shapeof the purchaser. The learned Judge cannot bring himself to findin fact that the purchaser was a party to this fraud, and, os hethus in effect acquits one of the necessary parties, his finding is,in effect, that there was no fraud. It is impossible for us to saythat he ought to have found otherwise. The material is far tooslender for such a course.
1 come to the highly technical irregularity on which the learnedJudge has based his order. With regard to that, 1 would observe,in the first place, that this was not the ground on which relief wasoriginally asked for, and 1 question whether relief can be grantedin such a manner unless the application is amended and the res-pondent has an opportunity of considering the facts and the lawwith a view to meeting it. In the second place, I would pointout that, if there was any irregularity, the, plaintiff himself was .responsible for the irregularity, because his proctor drafted theorder on a paper, stamped with his own name, and, in fact, procuredthe Court to issue an order for sale to the Deputy Fiscal. Butwith regard to the alleged irregularity itself, I confess that 1
1988.
PatamappaOhtttyv.Uaubu LOU
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IMS* question whether there was an irregularity at all. It is quite truethat the decree directed that the sale should be conducted by theCU.Fiscal. But what did that order mean ? Had the learned Judge
rafjjiifiijijiii °* the Court below in mind the gentleman actually discharging. GheUyv. the functions of Fiscal in the Province of Sabaragamuwa ? I doCfaiftu Lebbe nQ{.go<x am disposed to think that all that he meant was
that the sale should be a Fiscal’s sale in the ordinary sense of theword. That is to say, a sale conducted either by the Fiscal or anyperson who holds a deputation from him, and under the provisionsof section 5 of the Fiscal’s Ordinance was authorized to dischargehis functions*'
My brother has pointed out that this interpretation is confirmedby the conditions of sale which the Court authorized, and whichrefer in express terms to the Fiscal or Deputy Fiscal as the personconducting the sale, I observe, however, that in a judgment of mybrother De Sampayo (Fernando v. Fernando (supra)), the opinionis expressed that a sale by a Deputy Fiscal, when the decree directsthe sale by a Fiscal, is a departure from the order of the Court.I do not think it is necessary that we should decide this case onthis ground. The matter will no doubt receive further consider-ation, I have indicated the view which as at present advisedX am disposed to adopt.
But let us assume that there was an irregularity, a highly technicalirregularity. What ip the effect of that irregularity? It is concededthat section 344 applies to a question of this sort. See Perera v.Abpyratna 1 and also Ooonetilleka v. Ooonetillaka,a It is furtherconceded that section 282 does not apply to a sale in execution ofa mortgage decree. See the case of Fernando v. Fernando (supra) towhich I have referred. What then are the principles governing thequestion ? They are the principles of the common law, and theyapply whether the sale is an ordinary • sale or a sale in execution ofa mortgage decree. Section 282 in effect limits the principles ofthe common law in one particular, namely, by requiring that itmust appear that there is some connection between an irregularityand the loss sustained. Our Code does not expressly declare thata sale may be set aside on the ground of irregularity. It leavesthe principles of the common law as determining that question,subject to the limitation I have just mentioned.
Now, what is the effect of the judgment of my brother.De Sam-payo in Fernando v. Fernando (Supra) ? Is it that any departurefrom the decree is necessarily fatal, however trifling and technicalthat departure may be ? I cannot think so. I think the judgmentin that case proceeded upon the facts, and the facts disclosed aprogressive series of irregularities terminating in a sale by ' theFiscal’s Arachchi, a person who in no circumstances is entrustedwith the powers of the Fiscal himself. The principles of the common
1 (1912) IS N. L. B. 414.* (1912) 16 N. L. Jt. 272.
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law are stated in Burge, 3rd ed., vol. II., $78.It is there very 1MB.
clear that the only irregularities on which an adjudication at a bkwbaiibidding may be set aside are material irregularities, and that C.J.the omission oi what is described as a formal solemnity does no paianiappahum. I think it is quite clear that on these principles, in order Chatty v.to entitle a Court to set aside a sale on the ground of an irregularity,it must appear that the irregularity was material. In this case,both from the expression used by the learned District Judge,namely, “ a highly technical irregularity, ** and from the veryfacts of the case, it is clear that the irregularity was immaterial.
I am of opinion that it was not one which justified the settingaside of the sale. In that view of the case, the appeal must beallowed, with costs, both here and in the Court below. Therewill be no order as to the defendant’s costs.
Garvin J.—I agree.
Set aside.