[FULL BENCH]

Present : Bertram C.J., De Sampayo J., and Garvin A.J.

ABDULLA v. MENIKA et al.

295-C. R. Colombo, 23,

Execution-Fiscal's sale-Confirmation of sale after decree was set aside in appeal-Is confirmation of sale a step in execution t- Confirmation after lapse of several years.

Per BERTRAM CJ. and DE SAMPAYO J., dissentiente GARVIN A. J..- The confirmation of a sale is part of the execution proceedings, and a sale is not complete until it is confirmed.

A Court cannot confirm a sale held in execution of a decree which has been set aside in appeal after the sale and before its confirmation.

THE facts are set out in the judgment.

H. V. Perera, for purchaser, appellant.-The question is whether the Supreme Court may confirm a sale in execution of a decree after the decree was set aside in appeal. De Mel v. Dharmaratne,[1] which decides that the Court has no power to confirm the sale after the decree was set aside, was wrongly decided. That decision, as well as the earlier decision to the same effect in Idroos Lebbe v. Meera Lebbe, [2] is based on two Indian. cases: 2 Bom. 540 and 10 All. 83. The latter Indian case is distinguishable, in that the execution purchaser was there the decree-holder himself. The decree-holder purchasing property at the execution sale takes it subject to the-ultimate result of the litigation, so that he must give up the property purchased by him in the event of the decree being subsequently set aside. But " bona fide purchasers, who were no parties to the decree which was then ( .... at the time of the sale) valid and in force, had nothing to do further than to look to the decree and to the order for sale." See judgment of the Privy Council in 10 All. 166. In that case there were several sales in execution of a decree, which was subsequently set aside on the ground that the Court had no territorial jurisdiction to entertain the action. Some of the properties put up for sale were purchased by the decree-holders, and the others were purchased by persons who were not parties to the action. The Privy Council set aside the sales to the decree-holders, but upheld the sales to the others. The principle underlying this decision has been recognized in several Indian oases (7 W. B. 312, 8 W. B. 300, 10 W. B. 154, 12 W. B. 508, and 23 Cat. 857). The judgment of the Supreme Court in Hamidia v. Kirihamy [3] is based on the same principle. Two lands were sold in

Foot Notes:

1 (1903) 7 N. L. R. 294.
2 1 Tam. 6.
3 (1917} 19.N.L R.215.

execution of the decree in the present case. One Kiri Banda purchased one of the properties, and the present appellant purchased the other. The Supreme Court upheld the sale to Kiri Banda. [BERTRAM C.J.-The sale to Kiri Banda was confirmed before the decree was set aside.] That is so, but the decision of the Supreme Court is based not on that fact, but on the fact that there was a valid decree subsisting at the time of the sale.

The decision in 2 Bom. 540 is inconsistent with the judgment of the Privy Council in the case cited, and cannot be regarded as correct. Moreover, the Judges who decided the Bombay case purport to apply the principle laid down by the Privy Council in 7 Bengal L. R. 186, viz., that an execution sale of property which by its nature is not subject to seizure and sale in execution is void. But that principle has no application.

In De Mel v. Dharmaratne,[1] Wendt J. bases his decision on the ground that" the confirmation of the sale is a step in the execution of the decree which the Court has no jurisdiction to take if the decree no longer exists." But under section 283 of our Code the Court can confirm the sale only after the expiration of the thirty days immediately following the receipt of the Fiscal's report of sale. Within these thirty days if a person interested has not had the sale set aside for material irregularity under section 282, the purchaser would have pai