Gabriel V. Pelis Perera

GABRIEL APPUHAMY v. PELIS PERERA
APPUHAMY et al.

D. C, Negombo, 1,355.

    Fiscal's conveyance to purchaser in execution sale-Ordinance No. 4 of 1801, 88. 54, 56, and 58-And Civil Procedure Code, ss. 283 and 286-Con­firmation by Court-Proper time for conveyance.

Upon a sale in execution duly held in 1871 under Ordinance No. 4 of 1867, and no objection having been taken thereto within thirty days of the sale

Held, per Withers and BROWNE, J. J. (Lawrie, A.C.J., dissentiente), that it was competent to the Fiscal to pass a conveyance to the purchaser in 1893, and that such conveyance was valid. Such purchaser not being execution-creditor, an express order of court to convey is not necessary.

Held further, per WITHERS, J., that it was only sales of property held after the Civil Procedure Code came into operation that required an order of confirmation as a condition precedent to a Fiscal's conveyance.

THE land in dispute, in this case of ejectment, belonged to one Martelis Perera Appuhamy, who by deed No. 474, dated 16th May, 1870, leased it to one Domingo Fernando Rendrala for a

term of twenty years, and pot him in possession thereof. On the31st August, 1871, the Fiscal of Negombo, in pursuance of a writ of execution issued against Martelis Perera, seized the land and sold it by public auction to the plaintiff, who bought it subject to the lease in favour of Domingo Fernando. On the death of the lessee, his legal representatives, by deed dated 11th August, 1874, assigned to the plaintiff the unexpired term of the lease and put him in possession of the land. He continued to hold it till the expiry of the lease, and thereafter on the 11th May, 1893, obtained from the Fiscal a conveyance of the premises in his favour, as purchaser in execution. The plaintiff averred in his plaint (filed on the 5th September, 1893) that the defendants, on the 28th February, 1892, entered upon the land, and, having ousted the plaintiff's lessee, were in unlawful possession thereof; and he prayed for declaration of title and for ejectment of defendants. The second defendant only appeared, and in his answer he averred that the Court, by its order dated 7th February, 1893, had refused to confirm the sale in question, which was therefore no sale. He also pleaded that the Fiscal's conveyance was obtained by fraud; and denying the ouster and unlawful possession complained of, he claimed the land as his own by rig

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