1912 Present: Lascelles C.J. and Wood Renton J.

OMER v. FERNANDO, et al.

196-D. C. Colombo, 31,171.

Seizure of judgment debtor's property after death of debtor-Legal representative not made respondent to application for writ-Seizure and sale void-Civil Procedure Code, s. 341.

If a decree holder wishes to execute his decree against property which belonged to a deceased judgment-debtor, he must apply to the Court to execute the decree against the legal representative under section 341 of the Civil Procedure Code.

Where at the date of the seizure the judgment-debtor was dead, and the legal representative was not made a respondent to the application for Writ, the sale was held to be a nullity.

LASCELLES C.J.-The crucial question is whether the sale was a nullity-a sale which the Court had no jurisdiction to make, or whether, on the other hand, it was merely irregular, so that the provisions of the Code with regard to irregularities in sales are applicable. It would appear that if the failure to apply under section 341 is no more than an irregularity, the present order cannot stand in the absence of evidence of substantial injury to the execution-debtor's estate. If, however, the seizure amounted in, law to a nullity, the property in question was never brought within the custody of the Court, and the subsequent sale was consequently void.

THE facts are set out in the judgment.

E.. W. Jayewardene (with him Zoysa), for the plaintiff, appellant.- The respondents did not apply to the Court to have the sale set aside. The order is therefore bad.

The sale was confirmed without objection; it is too late to take steps, in this case to have the sale set aside. Moreover, a mere irregularity is not a ground for setting aside a sale (Silva v. Dias 1). . [Wood Renton J.-Section 282, Civil Procedure Code, deals only with irregularities in publishing and conducting the sale. There is no question of any irregularity here. The sale is a nullity.]

A separate action should be brought to get the sale set aside.

Once a Court has entered a decree, it is within the jurisdiction of the Court to execute the decree. Section 341 does not say that after the death of the judgment -debtor no writ can be executed against his estate. In this case the judgment-debtor died after the writ was issued. The death of a debtor after the issue of writ is not an irregularity which would vitiate the sale. Counsel cited Malkarjun v. Narpari,2 Sheo Brasad v. Hira Lal.3

Bartholomeusz, for the substituted defendants, respondents.-The point whether the sale was bad was raised as an issue in the lower Court, and it is too late to object to that issue in this Court. A separate action for having the sale set aside would not lie (Perera v. Abeyratna et al.4)

The Indian cases cited are no authority for holding that a seizure after the death of the judgment-debtor is valid. They only hold that the death of the judgment-debtor after the attachment does not vitiate the sale.

Cur. adv. vult.

February 6, 1913. LASCELLES C.J.-

This is an appeal from an order of the District Judge setting aside a judicial sale in the following circumstances. A writ was re-issued to recover the balance of the judgment debt, and on August 12, 1911, a land called Hitinawatta was seized, but before the date of the seizure, the judgment-debtor died. A sale was held on March 30, 1912, and confirmed on June 10, presumably in ignorance of the death of the execution-debtor. On June 21, on the motion of the plaintiff's proctor, the administratrix and administrator of the judgment- debtor's estate were substituted on the record as defendants.

On August 2 the judgment-creditor's proctor moved to draw from the money in Court the balance due to his client. The substituted defendants were noticed, and also the purchaser, and the former showed cause against the judgment-creditor's motion. The learned District Judge held that the seizure and sale w