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SARAVANAMUTTU v. MARUTAPPA.
NLR4V27
SARAVANAMUTTU v. MARUTAPPA.
D. C, Jaffna, 1,348.
Sale in execution-Title of purchaser under the Fiscal-Delay of such purchaser to obtain conveyance-Power of execution-debtor to sell land already sold in execution-Prior registration of deed of conveyance from execution. debtor-Civil Procedure Code, s. 289.
Where a purchaser in execution did not by his conduct lead the execution-debtor or his vendee to believe that he had abandoned his rights under the sale in execution, and where the purchaser in execution, by no fault of his, failed to have his deed registered prior to the deed in favour of the execution debtor's vendee, held that the former deed should prevail, as, in terms of section 289 of the Civil Procedure Code, the grantee of the Fiscal is deemed to have been vested with the legal estate front the time of the sale, when confirmed.
THIS was an action for declaration of title and for ejectment. Plaintiff's title Was based upon a Fiscal's conveyance in his favour dated 4th August, 1896, and registered on 13th August, 1896, which purported to convey the interest of one Viravaku to the plaintiff. The defendant claimed the land under a deed in his favour executed by Viravaku on the 29th April, 1896, and registered by him on the 30th April, 1896.
It appeared that the sale in execution was held on 20th July, 1894; that on the Commissioner refusing to confirm it, his order was set aside in appeal on 21st February, 1895; that the order of confirmation of the sale was obtained on the 27th August, 1895; that the Fiscal granted the conveyance on the 4th August, 1896; that in the meanwhile the execution-debtor sold the land to the defendant on the 29th April, 1896. The case was argued upon one issue only, viz., Whether the defendant's deed of April, 1896, or the plaintiff's deed of May, 1896, should prevail? The District Judge held in favour of the plaintiff and entered judgment for him.
Defendant appealed.
Wendt, for appellant.
Sampayo, for respondent.
Cur. adv. vult.
August 28, 1899. Lawrie, A.C.J.-
Since the passing of the Ordinance No. 2 of 1899, a judgment-debtor whose land has been sold in execution cannot thereafter by a conveyance give good title to the land already sold by the Fiscal. A subsequent conveyance by the execution-debtor becomes void on the execution of a conveyance by the Fiscal. The grantee is by 289th section of the Civil Procedure Code deemed to have been vested with the legal title from the time of the sale.
There is in this case the special circumstance that the sale in execution was confirmed by the Court after the decree had been set aside. In my opinion this was wrong; proceedings in execution of an existing decree stand on a different footing from proceedings in execution of a decree which has been set aside, but the order confirming the sale still stands. No appeal was lodged. As the subsisting order of a competent Court it must be respected.
Another question is whether the purchaser at the Fiscal's sale is estopped from questioning the right of the debtor to sell. That was partly the ground of our decision in D. C., Galle, 2,479, 3N.L.R.341,
Here the sale in execution was in July, 1894. The purchaser did not sleep over his rights. He asked for confirmation of the sale on 24th November, 1894. From opposition and from an appeal the proceedings on the application for confirmation were prolonged till August, 1895, when the sale was confirmed. The purchaser got the transfer on 4th August, 1896. In my opinion, the purchaser did not by his conduct lead the execution-debtor or the purchaser from him to believe that he had abandoned his rights under the sale in execution. He is not estopped from challenging the sale by the debtor on 13th August, 1896.
I would affirm the judgment for plaintiff, holding that he has title, and that the defendant has no title, because the conveyance he holds was granted after a Fiscal's sale in which title pass
