ROSENBERG v. SILVA.

ROSENBERG v. SILVA.

D. C, Colombo, 19,324.

Hypothecary action-Mortgage decree-Writ of execution against property mortgaged-Fiscal's seizure and sale without advertising in the " Ceylon Government Gazette "-Competency of execution-creditor to waive such publication-Civil Procedure Code, ss. 256 and 282-Meaning of " costs and charges " in s. 256-Material irregularity.

In a hypothecary action where a writ of execution against property had been issued and the Fiscal seized and sold such property without advertising the proposed sale in the Government Gazette because he valued the property at Rs. 850,-

Held, that as the property was really worth over Rs. 1,000, it should have been advertised in terms of section 256 of the Civil Procedure Code, and that the non-advertisement was a material irregularity, which being, obnoxious to section 282 of the Civil Procedure Code, nullified the sale.

Where, further, it was contended that, though under section 282 of the Civil Procedure Code a petition could be presented to the District Court praying for a nullification of the sale owing to a material irregularity in the conducting or publishing of the sale, this section could not be availed of in the present instance, inasmuch as the execution-creditor had by non-payment of costs of advertisement, and by his proctor's conduct, waived such publication-

Held, that the non-payment of costs by the execution-creditor did not constitute a waiver, since the costs referred to in section 256 are not costs of advertisement in the Government Gazette, but in ordinary newspapers; and that it was not even competent for the execution-creditor to make a waiver.

THE petitioner in this case was the mortgagee of a certain house and premises in Wellawatta. He instituted a hypothecary action and obtained a mortgage decree. On a writ of execution against the property being issued, the Fiscal's officer seized the land, and, having valued it at Rs. 850, did not advertise its

sale; nor did he give the petitioner an opportunity of bidding at the sale, having three days before the sale assured the petitioner's manager that there would be no sale till further particulars had been received from the petitioner.

At the sale the respondent bought the premises for Rs. 550. The petitioner applied to the District Court that the sale should be declared null and void. The learned District Judge, Mr. Joseph Grenier, granted the petition, suspecting collusion on the part of the Fiscal's officer with the purchaser and his father, Podi Singho.

The purchaser appealed against this order.

Bawa, for first respondent, appellant.

Dornhorst, K.C., for petitioner, respondent.

Van Langenberg, for Fiscal, second respondent.

Cur. adv. vult.

18th November, 1904. LAYARD, C.J.-

The plaintiff in this case obtained a money decree for over Rs. 2,726 against the defendant, together with a mortgage decree over certain immovable property and a life policy. On the 25th March, 1904, plaintiff applied for execution of the decree by issue of a writ against property; this was allowed, and in due course the immovable property mortgaged was seized. The value of the property so seized has been found by the District Judge to be over Rs. 1,000, and there appears no reason to think the District Judge was wrong in so finding. Subsequent to the seizure the Fiscal purported to sell the property to the appellant for the sum of Rs. 550. During the time the property was under seizure the Fiscal, for some mysterious reason or other, informed the plaintiff's manager that no steps had been taken and no sale fixed, and actually asked him for further particulars regarding the value of a certain life policy that had been mortgaged with the plaintiff as well as the land, and which was covered by the mortgage decree, and told him that no steps could be taken nor the sale fixed until the execution-creditor had furnished the necessary particulars

Click Here to Read the rest of this document