Ferreira V. Haniffa Et Al.,

Present: Lascelles C.J. and Ennis J.

FERREIRA v. HANIFFA et al.

116-D. C. Galle 10,274.

Insolvency Ordinance, s. 80-Sale of real property by order of Court- No meeting of creditors-Partition action-Title based on en illegal order of Court-Abatement-May purchaser from an assignee get order set aside!--Civil Procedure Code, s. 403.

The sale of all the real property of an insolvent must take place under conditions to be determined by the majority of the creditors present at any meeting.

Where no meeting of creditors was held, and the assignee refused to sell, and the Court took the matter into its own hands and ordered the Secretary to put the property up for sale,-

Held (per Lascelles C.J.), that the order was on the face of it beyond the jurisdiction of the Court.

It would be improper in a partition action to accept a title based on an order which ex facie the Court had no jurisdiction to make.

Ennis J.-Where an order of abatement was made in a partition action, held that no fresh action for the partition of the same land could be brought.

The right to get an order of abatement set aside is not limited in section 403, Civil Procedure Code, to an assignee only of an insolvent; the words " legal representative of an insolvent " have a wider meaning and would include a purchaser from an assignee.

THE facts are set out in the judgment.

Bawa, K. C, for the defendants, appellants.-The title of the plaintiff is bad, as the Court had no power to order the sale; there was no meeting of creditors. The Court ordered a sale by the Secretary. The Court had no jurisdiction to make the order.

In a partion action, the Court should satisfy itself as to the title of the parties.

Action No. 8,660 was brought for the partition of this land. The Court had no power to make an order of abatement. Lorensu v. Paaris et al.1 At any event the order of abatement should not have been made ex mero motu. Allahakoon v. Wickremasinghe.2

The action 8,860 in any case is still pending, and the present action is barred by that action. Counsel also cited Gooneratne v. Perera et al.,3 Peris v. Perera.4 The cause of action is the same in both the actions.

1 (1908) 11 N. L. R. 202.                                                                             3 (1896) 2 N. L. R. 185.

2 (1908) 4 A. C. R. 8.                                                                                    4 (1896) 1 N. L. R. 362.

H. A. Jayewardene, for the respondent.-Even if the sale to plaintiff is irregular, the irregularity cannot be questioned now. There was an appeal against the sale, and the appeal was dismissed. Counsel cited Gavin v. Hadden, Pinhamy v. Pieris.2

It has not been held anywhere that a Court cannot make an order of abatement ex mero motu.

The cause of action in the former action and this is not the same. In the first action the cause of action was the inability of the insolvent to possess in common. The cause of action here is the inconvenience caused to the present plaintiff.

It is not open to the plaintiff to proceed under section 403 of the Civil Procedure Code. He is not the legal representative of the insolvent.

Bawa, K.C., in reply.-If the order of abatement is regular, even then the plaintiff cannot succeed. He should move, under section 403, to have that order vacated and re-open that case. A purchaser is a legal representative of the insolvent.

Cur. adv. vult.

September 12, 1912. Lascelles C.J.-

This is a partition action in which objection is taken to the plaintiff's title, on the grounds (1) that the title which he claimed from the assignee of one Abdul Cader is bad, inasmuch as the sale was not held in conformity with the requirements of section 80 of the Insolvency Ordinance; and (2) that the partition action No. 8,660 was a bar to the present action.

With regard to the first objection, section 80 provides that assignees shall, subject to the direction of the creditors given at

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