1920. Present : De Sampayo J

PERERA v. BRITO.

5-C. R. Colombo, 68,686.

Civil Procedure Code, s. 282-Sale of property under one writ-Application by another writ-holder to set aside sale-Person interested, in the property.

Defendant's land was sold in execution by the Fiscal on a writ issued by the plaintiff, and was purchased by the appellant. The respondent obtained a judgment in D. C. Colombo, 51,377, and seized the same land in execution, but the Fiscal purported to sell the land under the writ in this case only. The respondent then applied to set aside the sale on the ground of material irregularity. The value of the land was Rs. 2,500, but the sale was not advertised in the Gazette, and the price realized was only Rs. 90.

Held, that the respondent was a person interested in the property within the meaning of section 282 of the Civil Procedure Code.

THE case No. 68,686 of the Court of Requests, Colombo, was instituted by one G. D. Issan Appuhamy against one Eliza Peiris for the recovery of money due on a promissory note. Decree was entered in favour of G. D. Issan Appuhamy, who thereupon obtained a writ and seized a land called and known as Talgawatta. The said land was sold by the Fiscal under the said writ and bought by the appellant.

Thereupon, the respondent to this appeal, Stephen Brito, presented a petition to the Court of Requests to have the sale set aside. The learned Commissioner set aside the sale.

The following were the reasons of the Commissioner of Requests (T. B. Russell, Esq.) :-

No attempt has been made by the respondent seriously to rebut the charge that the whole of the proceedings in this case, from its institution up to the sale by the Fiscal, were intended to defraud the petitioner and prevent his recovering on his decree. The evidence of petitioner and Mr. Thiedeman remains practically uncontradicted. The close relationship of the respondents, the hurry with which the decree in the present case was obtained, the seizure, not of third respondent's own property, which petitioner could not touch, but of the deceased's, over which alone the petitioner had a claim, the events of the sale itself, when bidding was discouraged by the announcement of a fictitious mortgage and lease, all very strongly support fraud and collusion between the respondents. But it is unnecessary for me to go beyond Mr. Thiedeman's evidence as far as the present inquiry is concerned. His statement that the property sold is worth Rs. 1,500 stands uncontradicted. The sale was not advertised in the Gazette. The petitioner undoubtedly sustained substantial injury by the way the sale was conducted.

He is, therefore, on his ground alone entitled to have the sale set aside. I have not dealt with the question whether the petitioner would, on the evidence, be entitled to have the decree also set aside. There is no prayer to this effect in his petition, and I do not think I am entitled to give him a relief he has not asked for therein.

Zoyza, for purchaser, appellant.-The property was sold under a writ issued in this case from the Court of Requests, and the respondents writ having been issued from the District Court, the respondent cannot claim concurrence with the judgment-creditor in this case. See Mendis v. Peris 1 and Meyappa Chetty v. Weerasooriya.2 Hence the respondent does not come within the ruling in Komerappa v. Muttiah,3 and is not a person having an " interest " in the property sold within the meaning of section 282.

Nagalingam, for petitioner, respondent.-Though the respondent may not be entitled to claim concurrence with the judgment-creditor, yet he might otherwise have a sufficient " interest " in the property sold to have the sale set aside. In Caruppen Chetty v. Habibu 4 an heir who was only interested in the proceeds of sale was held to be a person "interested " within the meaning of this section. The respondent comes within this principle,