1915. Present   : Ennis J. and De Sampayo J.

ANDRISHAMY v. SILVA et al.

324-D. C. Matara, 6,739.

Sale by auction by executor by order of Court-No conveyance granted-Subsequent sale to a third party by executor without order of Court.

On the application of an executor the Court ordered the sale of certain immovable property, and issued a commission to the Secretary to conduct the sale, and the property was purchased by B. Thereafter, and before the confirmation of the said sale, the executor conveyed the property to C. The executor died, and his successor executed a deed of transfer in favour of B. In an action by B for a declaration of title against C, held, that B was entitled to succeed, in spite of the fact that his deed was later in date.

DE SAMPAYO J.-When the Court exercised its jurisdiction and took upon itself the sale of the property, the executor had no longer any authority to dispose of the property, except upon further orders of Court, and cannot be allowed to defeat the acts of the Court in regard to the sale; for that would be not only directly to defy the Court, whose jurisdiction had been exercised at his own instance, but to set himself above the Court.

THE facts are set out in the judgment.

Drieberg (with him J. S. Jayewardene), for plaintiff, appellant.

Bawa, K.C. (with him Weeraratne), for defendants, respondents.

Cur. adv. vult.

October 20, 1915, DE SAMPAYO J.-

This appeal raises an important question as to the effect of a sale of immovable property by order of Court. Don Adrian de Silva died, leaving a will, of which Charles de Silva was executor. The will was proved and probate obtained by the executor in testamentary suit No. 8,981 of the District Court of Galle. On June 18, 1918, the executor submitted to Court a list showing shares of five lands as belonging to the estate, and applied for an order to sell the said property, and moved that for that purpose a com-mission be issued to the Secretary of the Court, The Court desired to be satisfied us to the propriety of the sale, and asked for certain further information, and the required information being subsequently furnished the Court, on August 7, 1913, made an order for the sale of the property, and issued a commission to the Secretary to carry out the sale. The Secretary having appointed an auctioneer, the conditions of sale and notice of sale were submitted to Court

and approved on August 14. The auction took place on August 23, 1913, and the plaintiff in this action became the purchaser of three of the lands, and paid down the purchase money and the auctioneer's charges according to the conditions of sale. The sale wag duly reported to Court, and on September 30, 1913, a formal order confirming the sale was entered of record. It appears that at this stage the executor fell ill and died, and the execution of a conveyance in favour of the plaintiff was consequently delayed. Ultimately the Court appointed an administrator de bonis non, who, under the authority of Court, by deed dated December 21, 1914, conveyed the property to the plaintiff. The title thus acquired by the plaintiff is so far unexceptionable. But when he went to take possession of the lands he was confronted by a claim made by the defendants under the deceased executor Charles de Silva. It appears that, notwithstanding the order of Court made at his own instance, and the sale effected thereunder by the Secretary acting under the commission issued to him, the executor, by a private conveyance dated September 29, 1913, purported to sell the property purchased by the plaintiff, together with shares of two other lands, to the defendants. The plaintiff has brought this action, alleging that the deed in favour of the defendants was fraudulently and collusively executed, and praying that that deed be declared void as regards the lands purchased by himself and that he be declared entitled to the same as against