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DE MEL v. DHARMARATNE
NLR7V274
DE MEL v. DHARMARATNE.
D. C., Colombo, 13,718.
Judgment-Issue of writ of execution-Appeal against decree-Sale by Fiscal- Confirmation of sale-Conveyance by Fiscal to purchaser-Reversal of judgment by Supreme Court-Application to District Court to vacate order of confirmation of sale-Civil Procedure Code, ss. 282, 283.
Where a writ of execution was allowed upon a Judgment against the defendant, and the defendant appealed against the decree and the Supreme Court set it aside a week after the Fiscal had sold his property, and where, such sale being confirmed by order of the District Court, the defendant moved it to vacate its order of confirmation,
Held, that the Court had power to vacate its order.
THE plaintiff obtained judgment against the defendant on the 15th August, 1902, and issued a writ of execution on the 18th
of the same month. The defendant filed his petition of appeal against the decree on the 27th. On 14th November, 1902, the Fiscal sold to a third party the defendant's land which had been seized under the writ. The sale was confirmed by order of Court dated 20th January, 1903, and the Fiscal's conveyance to the purchaser was duly passed.
The Supreme Court sitting in appeal having set aside the decree (under which the sale had taken place) on the 25th November, 1902, the defendant moved the District Court for an order to vacate its order of the 20th January, 1903, whereby it had confirmed the sale, on the ground that such order was made per incuriam, in ignorance of the fact that the decree had been set aside in appeal.
The Additional District Judge (Mr. Felix Dias) allowed the motion on the authority of Idroos Lebbe v. Meera Lebbe ( 1 Tam-byah's Reports, p. 6). He held that a Court could refuse to confirm a sale only for the reasons stated in sections 282 and 283 of the Civil Procedure Code; that a defendant who did not, within the thirty days allowed him under section 283, apply to the Court to stay the confirmation of a sale was not entitled afterwards to question its validity; that if no such application had been made, it could refuse to confirm a sale if it appeared that the judgment debt had been satisfied at the time the writ of execution issued; that the defendant neglected to take steps within the thirty days to have the sale set aside, and an innocent purchaser ought not to be allowed to suffer by his negligence. Nevertheless the Court felt bound by the Supreme Court decision above referred to.
" This decision, " the A.D.J. observed, " appears to have been wrongly decided. Lawrie, J., has followed two Indian decisions based on sections 312 and 316 of the Indian Procedure Code, but it seems to me that they have no application under our Code. In section 312 of the Indian Code, which partly corresponds to our section 283, there is no proviso showing the grounds upon which the Court shall stay its hand in confirming a sale. Under section 316 of the Indian Code, which does not appear in our Code, after a sale of immovable property has become absolute the Court is bound to issue a certificate of title to the purchaser but only provided that the decree under which the sale took place was still subsisting at the date of the certificate.
" In other words, under the Indian Code, a sale is incomplete until the issue of the certificate by the Court, so that if in the interval the original decree is reversed for any reason, the Court ceases to have jurisdiction to take further steps to execute that decree, and necessarily it has been rightly held that it had no
power to confirm a sale or issue a certificate after the decree had been set aside.
" The Indian cases relied upon cannot govern us, and the only grounds upon which a Court can refuse to confirm a sale are those contained in sections 282 and 283 of our Code.
" Following the judgment of the Supreme Court above cited, I direct that t
