Sekappa Chetty Et Al. V. Murugappa Chetty Et Al.,

1933  Present  : Macdonell C.J. and Drieberg J.

SEKAPPA CHETTY et al. v. MURUGAPPA CHETTY et al.

74-D. C. (Inty) Colombo, 32, 566.

Fiscal's conveyance-Sale under mortgage decree-Right of purchaser to ask for plan-Power of surveyor to enter land-Order of Court-Ordinance No. 21 of 1927, s. 12 (5).

Where property is sold by the Fiscal in execution of a hypothecary decree, a plan is not an essential part of the conveyance issued to the purchaser, unless the Court otherwise orders.

THE plaintiffs obtained judgment against the defendant on a mortgage bond on April 30, 1929. An order for sale was issued to the Deputy Fiscal under section\ 12 of the Mortgage Ordinance, No. 21 of 1927. One of the hypothecated properties which were sold was an undivided portion of land of 16 acres from and out of a larger land containing in extent 400 acres.

When the Fiscal's surveyor went to the land to survey it for the purpose of a conveyance, the respondent, who claimed title to the larger land, objected. When this was reported to Court, the appellants moved on September 12, 1930, for a notice on the respondent to show cause why he should not allow the Fiscal's surveyor to enter the land. On the. respondent showing cause, the learned District Judge held that a survey was not necessary and that the Fiscal should convey to the appellants the land as described in the order of sale.

N. E. Weerasooria, for appellant.-The sale was by the Fiscal. Under section 12 of Ordinance No. 21 of 1927, sections 282 to 286 of the Civil Procedure Code apply. Under section 286 no Fiscal's conveyance is issued without a plan. The proviso says " to all conveyances .... there shall be annexed a sufficient map". There is no earlier plan. A survey is necessary. No prejudice will be caused. The rights, if any, of the respondent, will remain unaffected.

H. V. Perera, for respondent.-The execution sections of the Code are so framed as to protect the rights of the party in possession, e.g., right to claim on seizure, sections 241 to 247, also where possession is sought to be given, sections 325 to 330. Under section 12 (3) (b) of Ordinance No. 21 of 1927 the Fiscal cannot enter without an order of Court. If he cannot enter, he cannot survey. Section 286 must be read as modified by section 12 (3) (b). Where the Court refuses to make an order to enter, the purchaser must be content with a conveyance giving the description without a plan. Provision is made by section 12 (5). See also schedule for form of conveyance. A plan is unnecessary. The purchaser should file an action.

Weerasooria, in reply.-An action only binds the parties to it. A party in possession is under no obligation to claim. Parties are agreed on the corpus sold. Section 12 (3) does not apply where it is in conflict with section 286. If so, express words would have been used. Counselcited Ukku Menika v. Ratwatte [1 4 A. C. R. 126.].

February 27, 1933. MACDONELL C.J.-

In this case the plaintiff-appellants had obtained a mortgage decree and a commission had been issued to the Fiscal to sell the mortgaged property. The sale was held and the plaintiffs became purchasers, doing everything and paying all moneys necessary for them to be entitled to a conveyance after the sale. No special conditions seem to have been attached by the Court to the order for sale. The plaintiff-appellants then requested that the Fiscal should send his surveyor on to the property so as to make a plan for annexure to the conveyance as required by section 286 of the Civil Procedure Code. The land to be surveyed was described as follows:-"All that undivided portion of land in extent sixteen acres from and out of all that land called Higgala alias Rankifipetiyehenyaya, situated at Ambamalla in Lower Bulatgama aforesaid ; and bounded on the north by the village boundary of Punahela, on the east by Ratmale-hena Heenna, on the south by Kat

Click Here to Read the rest of this document