Annamaly Chetty V. Sidambaram Chetty

1931 Present: Garvin S.J.P. and Maartensz A.J.

ANNAMALY CHETTY v. SIDAMBARAM CHETTY.

120-D. C. (Inty.) Colombo, 25,761.

Sale in execution of mortgage decree-Decree-holder allowed to purchase above appraised value-Purchaser, a nominee of decree-holder-Fraud- Civil Procedure Code. s. 344.

Where after a mortgage decree had been entered, the Court directed the sale to be held by the Fiscal and gave permission to the decree-holder to purchase the property at or above the appraised value and where the property was purchased by a nominee of the decree-holder below the appraised value,-

Held, that an application may be made- to set aside the sale under section 344-of the Civil Procedure Code.

Notwithstanding that certain of the facts which constitute the fraud alleged may of themselves amount to a material irregularity, an application for relief based on fraud as apart from a mere irregularity, may be made under the provisions of the section.

APPEAL from an order of the District Judge of Colombo.

H. V. Perera, for purchaser, appellant.

E. G. P. Jayatileke (with him Wikramanayake), for plaintiff, respondent.

Nadarajah, for first defendant, respondent.

December 21, 1931. GARVIN S.P.J.-

This is an application to set aside a sale held in execution of a hypothecary decree. Acting under the provisions of section 12 of Ordinance No. 21 of 1927, the District Judge directed that the sale should be held by the Fiscal upon certain terms specified by him, one of them being that the plaintiff or any one else on his behalf may be permitted to bid for and purchase such properties at the sale, and that in the event of the plaintiff becoming the purchaser thereof the plaintiff should be allowed credit for his claim and costs. Upon an application made by the plaintiff's proctor who had not apparently familiarized himself with the terms of the decree the District Judge made order that the property may be purchased by the plaintiff at or above the appraised value. At the sale held by the Fiscal, the appellant became the purchaser. After

the lapse of thirty days in the absence of any application to set it aside the sale was duly confirmed under the provisions of section 282 of the Civil Procedure Code. The present application was made on July 12, 1929. It was alleged that in order to defeat and circumvent the order of the Court, permitting the plaintiff to bid for and purchase the premises at or above the appraised value, he arranged with the appellant to purchase the premises on his behalf. Various other grounds were set out with which we need not concern ourselves since they are matters which should have been brought before the Court in a proceeding to Bet aside the sale under the provisions of section 282 of the Code.

In the Court below the objection was taken that the provisions of section 344 of the Code which the defendant invoked in support of his. application did not apply to a case in which the hypothecary decree was carried into execution by the Fiscal. The learned District Judge has considered the arguments addressed to him and has come to the conclusion that the effect of section 12 of the new Mortgage Ordinance, No. 21 of 1927, where the Court acting under its provisions directs the sale in execution of a hypothecary decree should be carried out by the Fiscal, is to bring into operation all the provisions of sections 255 to 288 and sections 290 to 297 of the Civil Procedure Code, and that it was competent therefore for any person having the right to do so to proceed, if so advised, under the provisions of section 282. He has further held that there is nothing in the provisions of Ordinance No. 21 of 1927 to prevent a person proceeding under the provisions of section 344 to have a sale set aside in any case in which it would otherwise be competent for him to do so. It seems to me that the learned District Judge is right on both points. Sectio

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