Present: Schneider J. and Jayewardene A.J. 1923

SILVA v. SELOHAMY et al.

1-D. C. Kalutara, 8,016.

Civil Procedure Code, se. 229,275, 276, 282, 344-Irregularity in conducting sale of movable property-Application to set aside sale-Summary procedure-Defect in pleadings no ground for refusing relief-Power of Court to grant relief against damage resulting from irregularity in execution proceedings.

An irregularity in publishing and conducting the sale of movable property vitiates the sale, provided substantial damage has been thereby caused to the person impeaching the sale. The party seeking to get the sale set aside can apply by way of summary procedure.

" It is not the policy of the Civil Procedure Code to throw out applications for relief for defect of pleadings. On the contrary, its policy could appear to be otherwise."

As a general principle it should be within the competence of a Court, whose decree is being executed to take cognizance of and grant relief where an irregularity resulting in damages is brought to its notice as having taken place in the course of the execution proceedings."

The policy of the Code is, where possible, to grant relief in the same action instead of referring parties to a separate action.

THE facts are set out in the judgment.

Soertsz, for appellant.

Francis de Zoysa, for respondents.

July 18, 1923. SCHNEIDER J.-

Under a writ of execution issued in this case against the plaintiff, a mortgage bond in his favour for the sum of Rs. 300, carrying interest at 25 per centum per annum, was seized and sold on July 23, 1921, when the third defendant, respondent, became the purchaser of the same for the sum of Rs. 9. On August 11, 1921, the plaintiff presented a petition and affidavit praying that the sale may be set aside on the ground that there had been irregularity in the publishing and conducting of the sale, which had resulted in his suffering substantial loss and damage. He also stated that he had no notice of the sale. Notice of this application was served on the third defendant, respondent, who appeared and objected to the application. It does not appear what his objection was, but the matter was fixed for inquiry on May 19. There was no inquiry on that day, but the learned District Judge records that he had read through the " petition and application," and that it appeared to him that no grounds of irregularity were set out in the pleadings, and that he,
 

therefore, dismissed the application with costs. From this order the plaintiff has appealed.

It seems to me that the order of dismissal should not have been made. If the learned Judge thought that particulars should have been furnished, it was his duty to direct that the particulars be submitted. It is not the policy of the Civil Procedure Code to throw out applications for relief for defect in pleadings. On the contrary, its policy would appear to be otherwise. For instance, it contains express provisions for curing defects in pleadings and for rectifying errors of misjoinder. The plaintiff has also stated in his petition that he had no notice of this sale. If he means by this that he had not received the notice required by section 229 to be given by the Fiscal, it would appear that the sale cannot stand as pointed out by this Court in the case of Bastianpillai v. Anapillai [1 {1901) S N. L. R. 165.] It would appear, therefore, that a prima facie case for investigation was disclosed by the pleadings, and that an investigation should have been held, the pleadings being amended, if the Court so directed.

I would, accordingly, set aside the order of dismissal, and remit the case for proceedings in due course.

But, on appeal, the question was raised whether the plaintiff, appellant, could maintain this application. If he cannot, it would be useless to interfere with the order made by the learned District Judge. I would, therefore proceed to consider whether