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UPARIS v. SUBASINGHE ET AL.
NLR19V468
1917 Present: Wood
Renton C.J. and Shaw J.
UPARIS v. SUBASINGHE et al
39-D. C. (Inty.) Galle, 11,573.
Fiscal's sale-Payment of money due under writ to judgment-creditor's
proctor before sale-Payment communicated to Fiscal-Fiscal's
letter authorizing stay of sale not received by officer who conducted
the sale till after sale-Power of Fiscal to stay sale without order of
Court-Civil Procedure Code, ss. 226, 342, 343.
A Fiscal has no legal power to stay a sale otherwise than upon an order of
Court. He may adjourn the sale.
It is no doubt customary for Fiscals or their officers to stay sales upon the
application of parties to proceedings, but they do so at their own risk. The
safe course for a Fiscal to whom any such application is made is to adjourn the
sale and report the matter to the Court itself.
A judgment-debtor moved to have a Fiscal's. sale set aside, on
the ground that he had satisfied the decree by full payment to the
judgment-creditor's proctor two days before the sale took place,
and that the fact of that payment had been duly communicated
to the Fiscal with a request to stay the sale. It was only after the
sale that the Fiscal's letter authorizing a stay of the sale was received by the
Fiscal's officer who conducted the sale.
Held, that in the absence of fraud on the part of the purchaser the sale cannot
be set aside.
THE
facts are set out in the judgment.
E. W. Jayewardene, for purchaser, appellant.
Bawa, K.C., for plaintiff,
respondent.
May 29, 1917. WOOD RENTON
C.J.-
On July 8, 1916, three lots of land called Madangahawatta were sold by the
Fiscal's officer in execution of a decree for pro rata costs due by the
plaintiff and the fourteenth to the eighteenth defendants. On August 3, 1916,
these parties filed petitions praying for an order to set aside the sale, on the
grounds that they had satisfied the decree by full payment to the
judgment-creditor's proctor two days before the sale took place, and that the
fact of that payment had been duly communicated to the Fiscal, with a request to
stay the sale. The purchaser of two of the lots in question consented to the
sale being cancelled. The purchaser of the third lot showed cause against the
application, and the learned District Judge, after hearing evidence, set the
sale aside. He appeals against that order.
The ground of the District Judge's decision is that the appellant was fully
aware that payment had been made, and, in view of the decisions of this Court in
Goonetilleke v. Goonetilleke 1 and Appuhamy v. Adrian,2 and cp. Hamidu v.
Kirihamy,3 there can be no doubt but that that ruling would be correct if the
evidence showed conduct on the part of the appellant that could be regarded as
equivalent to fraud. I do not think, however, that the facts of the present case
are capable of supporting a finding to that effect. On July 6 the whole amount
of the judgment-debt was paid to the execution-creditor's proctor. The appellant
is the father of the execution-creditor, whose name, by an inexplicable error on
the part of the Fiscal's Arachchi, was at first put down as that of the
purchaser at the execution sale. This mistake was subsequently rectified by the
substitution of the name of the real purchaser, the appellant himself. The
appellant was a party to the partition proceedings in which the judgment-debt
for pro rata costs was incurred. The proctor was not examined as a witness at
the trial. These circumstances would no doubt point to the conclusion that the
execution-creditor must have been aware of the fact of payment, and they might
have constituted valuable corroboration of other evidence showing that the
appellant also was aware that the judgment-debt had been satisfied. But the only
other facts that can be relied upon for that purpose are the under-value at
which the property was sold, namely Rs. 59, as compared with the alleged value
of Rs. 2,000, and the circumstance
