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FERNANDO v. PERERA
NLR5V377
FERNANDO v. PERERA.
D. C., Negombo, 2,795.
Sale of land in execution by in 1887-Dead of conveyance by Fiscal in 1895, without express order of Court-Ordinance No. 4 of 1867, s. 58-Order confirming the sale-Civil Procedure Code, ss. 283 and 286-Validity of conveyance.
An execution-creditor having bought a property at a sale in execution held in 1887, the Fiscal reported the sale to the District Court in terms of section 53 of the Ordinance No. 4 of 1867.
In 1895 the purchaser obtained from the District Court, in terms of section 283 of the Civil Procedure Code, an order confirming the sale.
Thereupon the Fiscal granted a conveyance to the purchaser, without obtaining an express order of Court as provided in section 58 of the Ordinance No. 4 of 1867.
Held, that the order of confirmation of the sale-which recited that the property was put up for sale in 1887, that thirty days had elapsed since the Fiscal had reported the sale, and that no application was made to set aside the sale-was in effect a direction to the Fiscal to convey the property, and that therefore the conveyance was good in law.
ACTION for ejectment and declaration of title to a land which at one time belonged to one Pieris and Podi Naide. On a writ of execution sued out in case No. 91,619, D. C., Kurunegala, the land was seized and sold by the Fiscal on the 18th February, 1887, to one Karunaratna, but the conveyance in his favour was not made by the Fiscal until the 5th March, 1895. Karunaratna sold the land on the 16th November, 1896, to the plaintiff.
The defendant disputed the validity of plaintiff's title, alleging that the Fiscal's deed to Karunaratna dated 5th March, 1895, was invalid for want of an express order of Court, in terms of section 58 of the Ordinance No. 4 of 1867.
The only issues framed by the Court below were as follows: - Is the Fiscal's transfer in favour of Karunaratna of no force or avail in law, and did no title pass there under by reason of the absence of an express order of Court ?
The District Judge (Mr. 3. P. Lewis) was of opinion, that though the Civil Procedure Code came into operation in 1890, the point raised should be disposed of in terms of the old procedure. His ruling was as follows: -
" The sale had been held before the Code came into operation, " or, in other words, the action had been continued " up to final " ' judgment and execution', and was not therefore pending at the " time that Code came into operation. Under section 58 of Ordinance
" No. 4 of 1867 no conveyance can be executed by the Fiscal in " favour of a judgment-creditor who has become purchaser, except *" by express order of the Court, and a Fiscal has to follow the " form J in the schedule of the Ordinance. In this form it is " recited that a purchaser ' has produced the order of Court, copy " whereof is annexed.' In the Fiscal's transfer relied upon by the " plaintiff the form prescribed by the Code has been followed, and "the words just quoted have been omitted. It is not con-" tended that there was any order of Court beyond the confirmation of the sale. The conveyance is bad. The plaintiff's action " is dismissed."
Plaintiff appealed.
Walter Pereira, for appellant.
Dornhorst, for respondent,
30th August, 1898. Bonser, C.J.-
By this action the plaintiff, relying on his title, sought to recover from the defendant a piece of land. A Fiscal's conveyance of the 5th March, 1895, was one of the links in his chain of title. The defendant took objection to the validity of" this conveyance, which objection the District Judge upheld. It was this. The property was sold in 1887 under a writ of execution issued by the plaintiff's predecessor in title; at that sale the plaintiff's predecessor in title, who had issued the writ, became1 the purchaser, but he did not obtain a conveyance. At that date' gales in execution were governed by the provisions of Ordinance No. 4 of 1867. Section 58 of that Ordinance prov
