Nov.2,1910   Present: Hutchinson. C.J. and Wood Renton J.

SULTAN PACKEER, et al.

248-D. C. Colombo, 28,953.

Action by judgment-debtor to set aside sale on the ground of fraud and material irregularity--Action maintainable-Civil Procedure Code, ss. 282 and 344.

Certain lands were sold in execution of a decree against the plaintiff, who was a judgment-debtor in another action. He brought this action against the purchaser at the sale, the auctioneer and the judgment-creditor alleging that by reason of fraud and collusion between the purchaser and the auctioneer, and by reason also of certain material irregularities in the publishing and conducting of the sale, the lands were sold under their value, and claimed that the sale and conveyance to the first purchaser be set aside and a fresh sale ordered.

Held, that the plaintiff was entitled to have the sale set aside in the present action.

Wood Renton J.-The provisions of section 344 would not justify the dismissal of a separate action brought in contravention of its directions.

Obiter.-According to Burge, while the purchaser at a judicial sale was bound to ascertain that the sale had been made in conformity with sentence of the Court and the solemnities prescribed by law, the debtor could not, as against the innocent purchaser, set aside the sale without restoring to him the price which he had paid for the property with interest. As against the creditors, he could not set it aside without paying to them the principal and interest of their demands. If a judicial sale was impeached, not by the debtor, but by a creditor, he was not bound to restore the purchase money to the purchaser, but the latter had his remedy against the debtor who by means of the purchase money had obtained a discharge from his debt, or against the person conducting the sale who

by his default had subjected it to rescission It may be necessary some day to decide whether this is a correct statement, of the Roman-Dutch Law. and if so. whether there is anything in the sections of the Civil Procedure Code dealing with judicial sale to set it aside.

THE plaintiff was the judgment-debtor in D. C, Colombo, No. 26,729, which was an action on a mortgage, and was ordered to pay C. H. Bury Palliser, the present third defendant, the sum of Rs. 22,500, with interest. In default of payment certain premises described in the schedule annexed to the decree were ordered to be sold, and the proceeds applied in payment of the judgment debt, It was also ordered and decreed that the sale of the mortgaged property be conducted by J. W. H. Ebert, Auctioneer, the second defendant; that notice of the sale be advertised in the Ceylon Independent, Muslim Friend, and the Government Gazette; and that the properties be put up for sale by public auction at the spot, upon certain conditions of sale. The second defendant sold certain of the premises on April 1, 1909, when the first defendant became the purchaser, the premises sold being No. 22 and Nos. 22b and 22c, Maligakanda road.

In this action the plaintiff averred that the properties are worth Rs. 25,000, but were sold for Rs. 12,900, and that the sale was concluded by reason of fraud and collusion between first defendant and second defendant. The plaintiff also complained of various irregularities in the publishing and the conducting of the sale, which he alleged caused him substantial damage. He prayed that the conveyance be cancelled and a fresh sale ordered.

The following issues were framed: -

(1) The plaintiff not having taken steps to set aside the sale under section 282 of the Civil Procedure Code on the ground of material irregularities, can he proceed to do so by action ?

(2) Whether the sale of April 1, 1909, under the mortgage decree, was under chapter XXII ?

(3) Under the decree in D. C, Colombo, 26,729, was the allotment of land first mentioned in the said decree and of the extent of 37 9/10 perches at all advertised for