133-NLR-NLR-V-39-WICKREMANAYAKE-v.-JOHN-APPUHAMY.pdf
478SOERTSZ J.—Wickremanayake v. John Appuhamy.
1937Present: Soertsz J. and Fernando A .J.
WICKREMANAYAKE v. JOHN APPUHAMY.
166-.—D. C. Galle, 30,775
Concurrence—Partition action—Decree for sale—Fiscal’s sale of undividedinterests of plaintiff in execution—Subsequent sale under partition decree—Proceeds of sale seized by another judgment-creditor of plaintiff—Concurrence—Civil Procedure Code, s. 289.
In a partition action a decree for sale was entered on May 26, 1933-declaring plaintiffs interests to be certain undivided shares in the land.
On March 28, 1934, a judgment-creditor of the plaintiff seized hisundivided interests in the land and those interests were sold by the Fiscalon October 26, 1934, and purchased by the respondent to this appeal.On November 3, 1934; the sale under the decree took place and a certi-ficate of sale was issued to the purchaser on December 11, 1934. Thepurchaser at the Fiscal’s sale (the present respondent) obtained hisFiscal's transfer on August 6, 1935.
On December 14, 1934, another judgment-creditor of the plaintiff, thepresent appellant, seized the money lying to the credit of the plaintiff inthe partition action in satisfaction of his own debt under section 232 ofthe Civil Procedure Code.
Held, that the respondent was entitled to the full proceeds of the saleand that the appellant was not entitled to concurrence.
The retrospective effect of section 289 of the Civil Procedure Code isto vest the respondent—the purchaser at the Fiscal sale—with the legaltitle of the plaintiff to the fund into which his estate in the land had bythat date been converted as from November 3, 1934.
Appeal from an order of the District Judge of Galle.
M.T. de S. Amarasekera, for respondent, appellant.
A. L. Jayasuriya, for petitioner, respondent.
Cur. adv. vult.
June 16, 1937. Soertsz J.—
The question that arises for decision on this appeal is not free fromdifficulty, but ^ter careful consideration I have come to the conclusionthat the appeal fails. The facts are as follows : One Kalid claiming to beentitled to an undivided 65/120th of a land called Warawatta sought topartition it among himself and nine others. Decree for sale was enteredon May 29, 1933. It declared the plaintiff’s interests to be 305/960th ofthe land. Oh March 28, 1934, a judgment-creditor of .the plaintiff seizedhis undivided interests in this land and those interests were sold by theFiscal on October 26, 1934, and were purchased by the petitioner who isthe respondent to this appeal. Eight days later, that is ‘on November 3,1934, the sale under the decree in this case took place and a certificate ofsale was issued to the purchaser on December 11, 1934. The purchaserat' the Fiscal’s sale obtained his Fiscal’s transfer on August 6, 1935.Between the date of the certificate of sale and that of the Fiscal’stransfer—to be precise, on December 14, 1935—another judgment-creditorof the plaintiff, namely, the present appellant, acting under section 232of the Civil Procedure Code requested the District Judge to hold a sufficient
SOERTSZ J.—Wickremanayake v. John Appuhamy.479
amount of money lying to the credit of the plaintiff, to satisfy his ownjudgment-debt. On February 4, 1936, the petitioner on the strength ofhis Fiscal’s transfer sought to be substituted in place of the plaintiff, andhe asked that he be allowed to draw the sum of Rs. 507.98 which was theamount the original plaintiff became entitled to in lieu of his interests,after a pro rata and other costs had been paid. The appellant opposedthis application, but after inquiry the trial Judge allowed it. For theappellant it is contended that the application should have been refused,•firstly, because the case is no longer pending, secondly, because the interestspurchased by the petitioner were the plaintiff’s undivided shares, and thatthe certificate of sale having wiped out those interests, the Fiscal’stransfer which was issued after the certificate of "sale conveyed nothingand that consequently the petitioner had no right upon -which to foundhis application for substitution.
In regard to the first contention in the circumstances of this case theaction must be considered to be pending so long as the amounts due to thedifferent parties are lying in deposit to the credit of this case. In Salt v.Cooper Jessel M.R. said that a cause is still pending although finaljudgment has been given so long as that judgment has not been satisfied.
In regard to the second objection, it is true that the certificate of salewiped out the plaintiff’s interests in the land by giving the purchasernamed therein .an absolute title to all those interests, but in place ofthese interests, the plaintiff ^obtained certain other interests, namely, theright to his share of the purchase price subject to payment of costs. Thequestion is whether the petitioner can be said to have acquired thoseinterests on the Fiscal’s transfer which conveyed to him all those undivided304/960 parts of the soil and trees and buildings on the land called lotsNos. 7 and 8 of Warawatta. There is no provision in the partitionOrdinance dealing with this question, but perhaps the solution of it is tobe found in section 289 of the Civil Procedure Code which provides interalia that if the Fiscal’s sale “ is confirmed by the Court and the conveyanceis executed in pursuance of the sale, the grantee in conveyance is deemedto have been vested with the legal estate from the time of the sale ”. In thisinstance, the sale was confirmed and the conveyance was executed inpursuance of the sale and in consequence the grantee must be deemed tohave been vested with the legal estate from the date of sale, November 3,1934. In other words, the position created by the operation of this partof section 289 of the Civil Procedure Code is that on November 3, 1934,the petitioner-respondent must be deemed to have been entitled to theundivided shares allotted in the decree of May 29, 1933, to the plaintiff.
I say to the “ undivided shares ” because it has now been definitelysettled by the full Bench in Pieris v. Pieris % that despite a decree for salethe land continues to be held in undivided shares until the issue of thecertificate of sale. Mr. Amarasekera, however, urged that those undividedinterests had ceased to exist at the date of the'Fiscal’s transfer for thecertificate of sale had been given earlier. That is so ; but certain otherrights had come into being and by operation of section 289 the granteeon the Fiscal’s transfer must be deemed to have "been vested with thelegal estate in those rights from the date of his sale. For if it
1 16 Ch. D. SSI.* 6 Law Recorder 1.
480SOERTSZ J.—Wickremanayake v. John Appuhamy.
had.been possible to confirm the sale and issue the transfer on the date ofthe sale itself the grantee would have been entitled there and then tohave himself substituted in place of the party whose interests he hadpurchased. In that event, the grantee would clearly have been entitled,subject to any superior or concurrent claim, to draw any sum due to theoriginal party. There does not appear to me to be any good reason forrelegating a purchaser to a worse position because of. a delay which theprocedure the Court has to follow has occasioned. Actus curiae neminemgravabit. In my opinion, therefore, the petitioner was entitled to besubstituted in place of the plaintiff.
The only other question is whether that means that the petitioner isentitled to draw the whole sum of Rs. 507.98 regardless of the seizure bythe appellant of a sum sufficient to cover his claim. That question, Ithink, must be answered against the appellant. The date of the sale isNovember 3, 1934. The date of the appellants seizure is December 14,1934. But the retrospective effect of section 289 of the Civil ProcedureCode was to vest the petitioner with the legal title of the plaintiff, that isto the fund into which his estate in the land had, by' that date, beenconverted, as from November 3, 1934. But, curiously, by operationagain of section 289, the plaintiff had not been divested of that right andtitle till the sale to petitioner was confirmed and the transfer executed onAugust 6, 1935. This antinomy in section 289 can be reconciled onlyon the hypothesis that although the seizure on December 14, 1934, wasgood agains.t the plaintiff inasmuch as he had not been divested of hisright and title as matters stood on that date, it was only potentially good.It would have prevailed in the event of the sale to the petitioner notbeing confirmed, but it was liable to b.e frustrated if, as it happened in/this case, the sale was confirmed and a transfer executed, and in conse-quence right and title came to be conferred on him as from November 3,1934.
therefore, hold that the appeal fails and dismiss it with costs.
Fernando A. J.—I agree.
Appeal dismissed.