1927 Present: Fisher C.J. and Schneider J.

LEELAWATHIE  v. DINGIRI BANDA.

108-D. C. (Inty.) Kegalla, 4,845-

Fiscal's conveyance-Death of purchaser-Application by purchaser from purchaser-Civil Procedure Code, ss. 282-205.

Where property is sold by a Fiscal under the provisions of the Civil Procedure Code. a person, who has bought the property from the purchaser at the Fiscal's sale, is not entitled to ask for a conveyance.

APPEAL from an order refusing the application of the appellant that a Fiscal's conveyance be executed in her favour of lands sold in execution of a decree upon a mortgage bond entered against the defendant-respondent. The purchaser, Kirihamy, paid the full purchase money, and the sale was confirmed on January, 1919. The applicant stated that Kirihamy sold his rights in the land by deed to one Maulana, that the latter died leaving certain heirs; that those heirs entered into possession and sold their interests in September, 1926, to the appellant. The learned District Judge refused the application.

H. V. Perera, for appellant.

Keuneman, for respondent.

September 6, 1927. SCHNEIDER J.-

Under a decree upon a mortgage bond an undivided 1/2 share of two allotments of land mortgaged by the defendant in this action were sold by the Fiscal in November, 1918. The purchaser, Kirihamy, paid the full purchase money, and the sale was confirmed in January, 1919, upon the application of the decree holder, the plaintiff (not the purchaser.) No conveyance by the Fiscal was obtained by the purchaser. In November, 1926, the appellant made an application by way of summary procedure by petition and affidavit praying " that an order be issued to the Fiscal " to execute a conveyance in her favour of the lands which were sold. The only respondent named in the petition was the defendant. The petition states baldly that Kirihamy was the purchaser and sold "his rights in the lands" by a deed to one Maulana; that the latter died leaving certain heirs; and that these heirs "entered into possession" and sold "their interests" in September, 1928, to the appellant.

Summary procedure was the correct procedure to have followed. See Jaldin v. Nurma.1 [(1892) 1 S. C. R. 187.] But the petition and its supporting affidavit are deficient in several essential particulars. The lands are not described by their boundaries. It is not alleged that the purchaser or Maulana or the appellant has had possession, or that the purchase money was paid or the Sale confirmed. The dates of the sale by the Fiscal and by the purchaser are not given, nor is it disclosed by what right the heirs of Maulana became entitled to the land. The facts recited by me in the earlier part of this judgment I gathered from the record. The respondent being served with a notice to show cause, stated by affidavit that he had sold and transferred the lands by a certain deed on November 27, .1922, to the second respondent to this appeal. The second respondent, being noticed, stated, also by affidavit, that he had purchased the lands in good faith and without knowledge of the sale by the Fiscal, and that he was placed in possession by the vendor, and his possession was disputed in September, 1926, by the appellant, whereupon he instituted an action which was then pending. Xo evidence was produced by any of the parties. The District Judge dismissed the application on the ground that there was no evidence of possession by the purchaser or his successors, and also that "adverse interests" had been created by the execution of the deed of sale in favour of the second respondent. He followed the case of Fernando v. Nagappa Ghetty2 [(1914) 18 N, L. R. 29.] The reasons given by the District Judge are sufficient to sustain his order, but it was asserted at the argument that no deeds were produced or other evidence led as the respondent's Counsel submitted the necessary facts. The record does not bear o