Appuhamy V. Adirian

1914 Present: De Sampayo A.J.

APPUHAMY et al. v. ADIRIAN et al.

218-C. R. Matara, 6,333.

Fiscal's sale-Application to set aside sale by judgment-debtor-Purchaser aware that debt was paid at the time of sale-Civil Procedure Code, ss. 282. and 344-Fiscal's fees not paid-May Fiscal sell the land seized ?-Civil Procedure Code, ss. 258, 270 and 343.

If a Fiscal's sale can be shown, before it is confirmed, to have been made under an entire mistake, when to the knowledge of the purchaser the exigency of the writ had been fully satisfied, the sale may be set aside under section 344 of the Civil Procedure Code.

In this case the Supreme Court treated an application made under section 282 as one made under section 344 of the Civil Procedure Code.

When a writ is satisfied by the payment of the amount which the Fiscal is thereby authorized to levy, the Fiscal cannot further execute the writ merely for the recovery of his own fees.

The Fiscal's only course is to proceed in the manner laid down by sections 258 and 270 of the Civil Procedure Code.

THE petitioners (defendants) applied to have the Fiscal's sale under writ issued in this case set aside. They filed the following petition:--

Your Honour's applicants are the judgment-debtors in the above-styled case.

That with the consent and knowledge of the judgment-debtors' proctors, the first applicant sold two of the lands, specially mortgaged to Don Davith Wickremesinghe of Kirinda and Hewa Lokugey Samel Hamy, and raised money and paid the amount of the debt in the said case and costs in full, as would appear on reference to the two receipts respectively dated December 22, 1913, and January 9, 1914 (which will be produced at the inquiry into this petition).

That long after the payments and settlement of the above debt, i.e., on the 14th instant, at an unusual hour of the day, namely, 5 o'clock in the evening, the said Fiscal's Arachchi, who is a close relation of the second respondent and a thick friend of the first and third respondents, and who knew about the payments of the said debt, as he happened to be at the notary's office on the day the first respondent sold the two lands for the payment of the debt, sold the following lands to the first, second and third respondents at the extremely low prices, without making any publication of the sale as required by law, that is to say: -

(1) 3/16 of Gulugahawatta at Kirinda, worth Rs. 100, for Rs. 3 to first respondent.

(2) 3/16 of Gulugahadeniya, worth Rs. 50, for Rs. 2 to first respondent.

(3) One pela extent of Uda Kirindakumbura, worth Rs. 200, for Rs. 4 to second respondent.

(4) 1/7 of Weralugahamadiththa and the planter's half share of the second plantation thereof and tiled house of seven cubits in Weralugahamadiththa, all worth Rs, 300, for Rs. 14 to third respondent.

That the applicants have sustained substantial injury by reason of the said irregularity of not publishing the sale, and by the said sale of valuable properties for low prices.

That the applicants are not indebted now to judgment-debtor in any sum of money.

Wherefore the applicants pray that, in terms of clause 282 of the Ordinance No. 2 of 1889, the said sale may be set aside with costs.

The following issues were proposed and accepted: -

(1) Was the writ under which the lands in question were sold a valid writ?

(2) Were the respondents already aware that the writ had been paid and settled?

(3) Was there due publication of the sale?

(4) If not, did the petitioners suffer any material damage by reason of the said irregularities?

The learned Commissioner delivered the following judgment:-

In this case writ issued on December 1, 1913. Seizure of property took place on December 13, 1913 (P 4). On January 7, 1914, part payment, of the greater portion of the debt, viz., Rs. 230, was certified. On January 9, 1914, the balance (Rs. 19) was paid, but payment was not certified by plaintiffs' proctor. The property sei

Click Here to Read the rest of this document