GORDION APPUHAMY v. MARIA CULAS.

GORDION APPUHAMY v. MARIA CULAS.

D. C., Trincomalee, 8,702.

Seizure in executions-Claim to property seized-Sale notwithstanding claim, and order of Court to stay sale-Order of Court to produce property claimed- Validity of unauthorized sale-Civil Procedure Code, ss. 218, 226, 241, 363.

The plaintiff, having obtained judgment against the defendant in the District Court of Mannar, seized certain movables in Trincomalee, when a claim was made.

Held, that the District Court of Trincomalee, which had power to investigate the claim, had also the right to order the production of the property claimed, even though the Fiscal had delivered it to a third party on the pretext of being the purchaser at an alleged sale held by the Fiscal.

A Fiscal who has received a claim which he has preferred to the Court has no right to proceed with the sale until it has been decided whether the seizure was legal or not.

A Fiscal's sale held without excuse or authority does not pass title to the purchaser, but is a nullity.

THE plaintiff obtained judgment against the defendant in the District Court of Mannar and seized in execution certain movables in Trincomalee said to belong to the defendant, and had them advertised for sale on 4th June, 1901. Of the articles seized one Savial Culas claimed inter alia a boat and one-half of a fishing

net. The claim was fixed for inquiry in Trincomalee on 17th June, 1901. Pending the result of the inquiry the sale of the property was ordered by the District Court of Trincomalee to be stayed. Nevertheless the articles were sold on 4th June, 1901, and bought by the plaintiff and others, and the plaintiff was allowed to remove the things he had bought. The claimant then moved for a notice on the plaintiff to show cause why he should not produce them in Court to abide such orders as may be made in the claim inquiry.

After hearing the parties, the District Judge held that, in view of the order of Court that the sale fixed for the 4th June should be stayed, no sale could take place, and it directed the plaintiff to bring into Court the articles purchased by him.

The plaintiff appealed. The case was argued on 4th October, 1901.

Sampayo, for appellant.

H. Jayawardene, for claimant, respondent.

Cur. adv. vult.

17th February, 1902. Moncreiff, J.-

A boat and a puthu paddu net having been seized in execution and sold, the claimant moved in the District Court of Trincomalee that the sale should be set aside. The Judge held that there had been no sale, and that there was nothing to be set aside; but he ordered the execution-creditor to produce the property in Court to abide the result of the claim inquiry. From this order the execution-creditor appealed.

I understand that, as a matter of fact, the claim has, since the order for production, been sustained; but the property cannot be produced, because the purchaser at the Fiscal's sale at once sold it to another person.

It was urged that the decree in the action having been pronounced in the District Court of Mannar, and the articles in question having been seized within the jurisdiction of the District Court of Trincomalee, the application to set aside the sale should have been made to the District Court of Mannar. I need not enter into that question. The Judge, holding there was no sale to set aside, treated the application as one for the production of the property. Under section 241 of the Civil Procedure Code the Fiscal's report of claim was made to the Judge at Trincomalee. It was the same Judge's function to investigate the claim and make an " order thereon. " By section 244 he might, upon investigation, release the property from seizure, or by virtue of the following section he might disallow the claim. He has, therefore, power to do everything necessary to the making of his order, and I have no

doubt that he has the power, which even the Fiscal has, to postpone the sale, and also to order the productio

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