Ramen Chetty V. Siriwardene

1926 Present: Dalton J. and Akbar A.J.

RAMAN CHETTY v. SIRIWARDENE.

148-D. C. (Inty.) Colombo, 5,046.

    Fiscals sale-Order of court staying the sale-Order not communicated to the officer conducting the sale-Sale held despite the Court's order-Civil Procedure Code, ss. 282, 343, 344.

Where a Fiscal's sale was held after an order of Court had issued staying the sale, because the order was not communicated to the officer conducting the sale,-

Held, that it was competent to the Court to set aside the sale.

The terms of section 343 of the Civil Procedure Code are directory, and an order directing the stay of sale conditional upon the payment of the Fiscal's charges was a sufficient compliance with the provisions of the section.

APPLICATION to set aside a sale held in execution of a decree of the District Court of Colombo.

The property of the judgment-debtor at Induruwa was advertised by the Deputy Fiscal, Galle, for sale on October 4,1924, at 12 noon. On October 1, 1924, the judgment-creditor applied to the Colombo

District Court for a stay of sale and obtained it. This order was in the hands of the Fiscal, Galle, on the 3rd, and the Fiscal's order to stay the sale was handed to the person, bringing the order of Court, to be deliverd to the Fiscal's Arachchi at Induruwa, The order countermanding the sale did not reach the Fiscal's Arachchi, and he sold the property. On October 31, 1924, before the confirmation of sale by Court, the judgment-creditor by a petition, to which the purchaser and the judgment-debtor were made respondents, applied to set aside the sale. The District Judge set aside the sale, and the purchaser of the property appeals from the order.

H. V. Perera, for. appellant.-An order staying sale has not the effect of cancelling the sale, and therefore the sale to the purchaser is valid, unless it can be impeached under section 282, Civil Procedure Code (see Abdin Khan v. Ali Khan1).

Drieberg, K.C. (with Ranawake), for respondent.- Order of Court postponing sale has immediate effect, and the sale is therefore bad. The sale was carried out contrary to the orders of Court (Saint Lai v. Umrao Um Nissa2). Stay of sale takes effect from the moment of pronouncement of order, and not from the moment the order is communicated-sale is void. It need not be further proved that there was material irregularity before the sale is set aside (Hakum Chand Boid v. Kamalanand Singh2).

[AKBAR A.J.-Under section 343 the fees of the Fiscal have to be paid before the order is obtained.]
The Fiscal's fees vary from day to day. The fees were paid as soon as the order of Court was communicated to Fiscal. This would be a sufficient compliance of the section under the circumstances. Also see section 258, Civil Procedural Code.

H. V. Perera, in reply.-Sections 342, 343, Civil Procedure Code, are the only sections dealing with adjournment of sale. There is no section in the Indian Code corresponding to these, and that is why the Appeal Court in India orders stay of sales under conditions different to ours (Nayinar v. Aiyangar4). Order of Court is only to take place when communicated. 33 Cal. not followed.

At most sale in violation of order of Court is an irregularity, and we must succeed under section 282, Civil Procedure Code.

Allahabad case can be distinguished as follows : The purchaser is the execution-creditor ; in the present case the purchaser is an . outsider.

Where a stranger purchases bona fide, sale cannot be set aside, as there was payment in satisfaction before sale (Yellappa v. Ramachandra5).

1 10 All. 170.
2 (1889) I. L. R. 12 All. 96.
3(1906) 33 Cal. 927.
4(1909) I. L. R. 33 Mad. 74.
5(1909)I. L. R.21 Bom. 463.

Sale after returnable date of writ is no irregularity under section 282, Civil Procedure Code. Further, sale was upheld (Suppramaniam Chetty v. Tissera1[1 3 A. C. R. 60. ]). Section 344 is confined to applications by parties to t

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