Walker V. Mohideen

Present: Bertram C.J. and Jayewardene A.J.

WALKER v. MOHIDEEN.

121-D. C. (Inty.), Colombo, 7,608.

Mortgage decree-Directions, for sale-Authority of Court-Permission granted to mortgagee to bid-Civil Procedure Code, ss. 201, 722.

In an action to realize a mortgage under section 201 of the Civil Procedure Code, the Court has no authority to give special directions for the execution of the decree, except in the decree itself.

In such a case, the terms under which the mortgagee is allowed to bid for and purchase the property must be embodied in the decree.

Section 272 of the Code, under which permission may be granted to the holder of a simple money decree to purchase at a sale in execution of his decree, has no application to a sale under an order to sell entered under section 201.

APPEAL from an order made by the District Judge of Colombo. The plaintiff obtained judgment by default on a mortgage bond granted by the defendant for Rs. 75,000. On August 16, 1923, a mortgage decree was entered requiring the defendant to pay this, sum within one month of the decree, and in default of payment the mortgaged property was ordered to be sold by the Fiscal and the proceeds applied in payment of the amount due. The decree contained no express directions as to the conduct and condition of sale as provided by section 201 of the Civil Procedure Code. On September 15 the plaintiff's proctors filed conditions for sale

for approval, which were the printed conditions under which the Fiscal. usually sells property seized in execution of money decrees, and an application for an order to sell was made under section 224 of the Civil Procedure Code. The conditions of sale were approved, and the application for an order to sell allowed. On October 1 the plaintiff's proctors moved, in terms of section 272 of the Civil Procedure Code, that the plaintiff be permitted to bid for and purchase at the sale, and that the Fiscal be directed to give the plaintiff credit to the extent of his claim. The application was allowed, and the property was accordingly sold on January 21, 1924, and purchased by the plaintiff for Rs. 100. On February 19, before the sale could be confirmed, the defendant moved to lave the sale set aside, on the ground that the requirements of section 201 of the Civil Procedure Code were not complied with, in that the conditions of sale were not embodied in the decree nor the permission given to the judgment-creditor to purchase. The learned District Judge held that the words of section 201 were not imperative, and that the, section did not prevent the Court from giving such directions and permission otherwise than in the decree, and dismissed the defendant's application.

E. W. Jayewardene, K.C. (with him Canjamanadan), for defendant, appellant.

Drieberg, K.C. (with him Keuneman), for plaintiff, respondent.

November 17, 1924.- Jayewardene A .J.-

This case raises an important point of practice regarding the execution of mortgage decrees under the Civil Procedure Code.

The plaintiff obtained judgment by default on a mortgage bond granted by the defendant for Rs. 75,000. On August 16, 1923, a mortgage decree was entered requiring the defendant to pay this sum within one month of the decree, and declaring the mortgaged property bound and executable, and, in default of payment of the principal, interest, and costs within one month, the mortgaged property was ordered to be sold by the Fiscal, and the proceeds applied in payment of the amount due. The decree contained no express directions as to the conduct and conditions of sale as provided for by section 201 of the Civil Procedure Code. It merely directed that the mortgaged premises be sold by the Fiscal. On September 15 the plaintiff's proctors filed conditions of sale for approval and applied for execution of the decree by the issue of an order to sell the mortgaged property. The conditions submitted for approval were th

Click Here to Read the rest of this document