Carolis V. Perera Et Al.,

Present: Wood Renton J. and Grenier J.   June.1,1911

CAROLIS v. PERERA et al.

61-D. C. Negombo, 8,184.

Partition action-Share sold by Fiscal to a party to the action-No Fiscal's conveyance to the purchaser at date of action--Purchaser may establish his claim in partition action-Acquisition of title by prescription by execution-debtor after Fiscal's sale.

A party to a partition action who claims a share through a purchaser at a Fiscal's sale may establish his claim, even though the Fiscal's conveyance in favour of the purchaser at the Fiscal's sale was executed after the institution of the action.

Even prior to the Civil Procedure Code the execution of the Fiscal's conveyance was an essential ingredient of the sale of land, and until such execution the judgment-debtor remained vested with the title.

The mere continuance in possession by a judgment-debtor of property sold in execution against him for a period exceeding ten years after the sale by the Fiscal, and before the issue of the Fiscal's conveyance, does not entitle him to set up a title by prescription; a person cannot prescribe against himself.

THE facts are set out in the judgment of Grenier J.

A. St. V. Jayewardene, for defendants, appellants.-The finding of the learned District Judge on the question of prescription is wrong.

The sale was held under the Fiscal's Ordinance, No. 4 of 1867, which regulated execution sales before the Civil Procedure Code came into operation. Under Ordinance No. 4 of 1867 the judgment-debtor remained vested with the title until the Fiscal's conveyance was executed (see Silva v. Nona Hamine l). So that in this case, although the sale took place in 1886, the plaintiff and his co-judgment-debtor were not divested of their title till the Fiscal's conveyance was issued in 1910, and they were entitled to be in possession of the property sold. The possession of a judgment-debtor of the property sold was in no way limited or restricted under Ordinance No. 4 of 1867: he could exercise all the rights of an owner. It is different under the Civil Procedure Code. By section 291 the right to possess is strictly limited by the terms of that section, and the judgment-debtor cannot exercise rights of ownership. So that after the Code, if the judgment-debtor exercises rights beyond those

1 (1908) 10 N. L. R. 44.

given to him by section 291, he might acquire a title by prescription. Under the old law the judgment-debtor being allowed to possess ut dominus he could not acquire a title by prescription against himself.

Sansoni, for plaintiff, respondent-The learned Judge's finding is correct. He has held that the plaintiff continued in possession notwithstanding the sale by the Fiscal. (1) Where a judgment-debtor remains in possession of property sold, and in respect of which no conveyance is issued for over ten years, he could clearly, acquire a title) by prescription; (2) in this instance the Fiscal's conveyance was obtained after the institution of this action, and cannot be relied upon in this case (see Silva v. Hendrick 1 and Ponnama v. Weerasuriya 2); (3) the question must be decided according to the Civil Procedure Code, as the conveyance was issued under the Code.

Jayewardene, in reply.-The principle laid down in Silva v. Hendrick and Ponnama v. Weerasuriya does not apply to the case of a defendant. Further, this is a partition suit, and persons who acquire title on a Fiscal's conveyance subsequent to the institution of the action can intervene in the action (Perera v. Perera 3), otherwise their rights would be lost for ever.

Subsequent to the argument Mr. Sansoni submitted the case of Muttu Carpen et al. v. Ran Kira 4 to their Lordships.

Cur. adv. vult.

June 1,1911. Grenier J.-

In this case the plaintiff sought a partition of a land called Ambagahawatta, claiming one-fifth share in it, and allotting to the defendants, who are the appellants, the remaining four-fifths. It was proved t

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