1923.  Present: Bertram C.J., Ennis J., and Garvin A.J.

SUBRAMANIAM CHETTY v. SOYSA.

167-D. C. Colombo, 5,789.

Fiscal's sale-One of the main gates of estate where sale took place closed -Inability of judgment-creditor to bid at sale-Material irregularity-Sale set aside-Application for leave to appeal to Privy Council by creditor-Property valued by Fiscal at six lakhs-Sale for Rs. 1,991-Was proceedings to set aside sale an " action "- " Final judgment "-Value-Ordinance No. 31 of 1909.

The execution-creditor caused the Fiscal to seize and sell as belonging to the judgment-debtor a property which he had transferred to his son. The public had no access to the place of sale, as one of the gates of the estate was closed, and some of the intending purchasers, including the execution-creditor, were unable to bid at the sale. The estate, though valued by the Fiscal at Rs. 600,000, fetched at the sale Rs. 1,991.

Held (per BERTRAM C.J. and ENNIS J.) that the failure on the part of the Fiscal's officer to secure a proper public entrance to the place where the sale was conducted was a material irregularity in the conduct of the sale.

The Supreme Court set aside the sale. The purchaser applied for conditional leave to appeal to the Privy Council.

Held [per BERTRAM C.J. and GARVIN A.J. (ENNIS J. dissentiente)], that an appeal lay.

The proceeding which resulted in the sale being set aside was an action within the meaning of section 4 of Ordinance No. 31 of 1909, and the order setting aside the sale was a final judgment within the meaning of rule 1 (a) in schedule I. of that Ordinance ; the subject-matter in dispute was of the value of Rs. 5,000 or over.

THE plaintiff, execution-creditor, moved to set aside a Fiscal's sale on the ground of an alleged irregularity in the conduct of the sale. The District Judge refused the application. The plaintiff appealed, and the appeal was argued before Bertram C.J. and Ennis J. The Supreme Court delivered the judgment reported below allowing the appeal. The purchaser applied for leave to appeal to the Privy Council. The application was reserved for argument before a bench of three Judges, and the hearing came before Bertram C.J., Ennis J., and Garvin A.J.

The following was the argument before three Judges on the application for conditional leave to the Privy Council:-

H. J. C. Pereira, K.C. (with him Samarawickreme), for the purchaser, applicant.

The amount involved is over the value specified for appeals to the Privy Council-Rs. 5,000.

The value for the purposes of the appeal is the value of the land-
 1 S. C .R .1

[ENNIS J.-You have purchased the debtor's interests for about Rs.2,000.]

We made a bargain.

The creditor himself having valued the property at Rs. 600,000 he is estopped by it.

The proceeding is an action as defined in sections 5 and 6 of the Civil Procedure Code. The judgment in question is a final judgment. Counsel cited 40 Cal. 635 at 647,9 N. L. R. 129,6C.W. R. 157.-

Hayley (with him Choksy), for the creditor, respondent.-The value of the matter involved in this appeal does not amount to Rs. 5,000. It is the question or claim to the property, or the civil right that has to be of the value of Rs. 5,000. 'If " amounting to " qualifies only " property," then the words " claim or question to or respecting " might be omitted from rule 1 (a).
The value for the purposes of appeal must be judged by the extent to which the appellant suffers by the judgment. He brought the property for Rs. 1,991 at a sale, which, according to him, was regularly conducted.

He cited 13 App. Cos. 780.

" Amounts to or is " means a specific amount, and not what it might amount to. Leave cannot be given in the latter case (12 N. L. R. 367).

This is a proceeding in the course of an " action " and is not an " action." The Code only contemplates two kinds of actions, viz., an action in Regular Procedure and an action in Summary P