Colombo Stores, Ltd. V. Silva

Present: Bertram C.J. and Schneider J.

COLOMBO STOKES, LTD., v. SILVA.

89-D. C. (Inty.), Colombo, 2,034.

Civil Procedure Code, s. 284-May execution-creditor apply to set aside sale on the ground that the debtor had no saleable interest-Construction of Statutes-Proviso.

An execution-creditor who purchases property at the execution sale may apply under section 284 of the Civil Procedure Code that the sale be set aside on the ground that the judgment-debtor had no saleable interest therein.

Words are not to be read into an enactment, which are not to be found there, and which would alter its operative effect, because of. provisions found in a proviso.

THE facts are set out in the judgment.

Choksy, for the appellant.

E. G. P. Jayetilleke, for the respondent.

July 17, 1924. Bertram C.J.-

This case raises an important point of procedure, namely, whether section 284 of the Civil Procedure Code, which authorizes a purchaser in execution sale to apply by petition in summary procedure to set aside the sale on the ground that the person whose property purported to be sold had no saleable interest therein, applies to a case in which the purchaser is the execution-creditor. In the present case the purchaser was the execution-creditor, and he appears to have sent a messenger to point out certain land to the Fiscal's-Arachchi; and on the land being so pointed out, the Fiscal seized it. The sale was duly confirmed, and the Fiscal's transfer was executed. But it was not until about eight months after the Fiscal's transfer that the true facts became known to the purchaser, namely, that the property seized did not belong to the judgment-debtor but to his wife.

The terms of section 284 are perfectly general, and apparently there can be no doubt that the words would apply to the case of a purchaser, who is the execution-creditor, but for the terms of a proviso annexed to the section. In the case of Suppramanian Chetty v. Fernando [1 (1917) 4 C. W. R. 33.] De Sampayo J. expressed the opinion that the terms of the proviso, which declares that both the judgment-debtor and the decree holder must be made respondents to the petition, have the effect of limiting the substantive words of the section, and excluding from its application the case in which the purchaser is himself the decree holder. He further said that this exclusion of a decree holder from the section is justified by the fact that it is the decree holder who himself causes the property to be seized and sold, and presumably undertakes the risk when he purchases under the writ. These observations, though obiter, are necessarily of very great weight. But on a careful consideration of the terms of the section, we are of opinion that this cannot be limited in the manner suggested.

The effect of a proviso with reference to the substantive words of the enactment to which it is appended have been considered "by the House of Lords in the case of The West Derby Union v. The Metropolitan Life Assurance Society [(1897) A. C. 647.]. In that case it was sought to import into the substantive section certain words which were not there, but which were thought to be implied from the terms of the- proviso attached to the section. Lord Herschell there said, on page 655, " I decline to read into any enactment words which are-

not to be found there, and which would alter its operative effect because of provisions to be found in any proviso." Lord Watson said, on page 652, "I am perfectly clear that if the language of the enacting part of the Statute does not contain the provisions which are said to occur in it, you cannot derive these provisions by implication from a proviso. When one regards the natural history and object of provisos, and the manner in which they find their way into Acts of Parliament, I think your Lordships would be adopting a very dangerous and certainly unusual course if you were to import legislation from

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