1933 Present: Dalton A.C.J. and Koch A.J.

BROOKE BOND v. DE SILVA.

16-D. C. Colombo, 36,549.

Mortgage action-Sanction given to mortgagee in the decree to purchase-No reservation of upset price-Special application not necessary-Civil Procedure Code, s. 272.

Where in a mortgage action plaintiff obtained in the decree the sanction of Court to bid for and purchase the property mortgaged without any reservation of the upset price,-

Held, that the order to bid was valid and that no special application in terms of section 272 of the Civil Procedure Code was necessary for the purpose.

There is no provision of the law that a limit as to price is required to be placed upon the mortgagee if he is to be allowed to bid and purchase.

APPEAL from a judgment of the District Judge of Colombo.

Hayley, K. C. (with him Weerasooria), for plaintiff, appellant.

H. V. Perera, (with him Rajapakse), for first defendant, respondent.

July 25, 1933. DALTON A.C.J.-

This appeal arises from an order of the District Court setting aside a sale at execution.

The plaintiff company sued the first defendant to recover the sum of Rs. 22,712.10 and interest due on a mortgage bond executed by the latter in favour of the former on January 9, 1929. The property mortgaged consists of four lots of land, about 45 acres in all. planted with tea in

the Ramboda district. The second and third defendants are puisne incumbrances. The first defendant filed no answer to the plaint and did not appear to defend the action.

In the plaint, amongst other things, the plaintiff company prayed that the property mortgaged be put up for sale, first at the amount of the Deputy Fiscal's valuation, then at the aggregate amount of the plaintiff's claim and costs, and in the event of there being no bidders at such sale, then, immediately afterwards to the highest bidder. It also prayed that the plaintiff company or anyone else on its behalf be allowed to bid for and purchase the property at the sale, and in the event of the company becoming the purchaser to allow it credit in any sum not exceeding the aggregate amount of its claim and costs.

On October 31, 1930, none of the defendants being present, after an ex parte trial, decree was ordered to be entered, and was entered in terms of the prayer of the plaint. An order for sale thereafter on January 21, 1931, issued from the Court to the Deputy Fiscal directing inter alia that the property be sold, after due advertisement, in conformity with the orders and directions set out in the decree and upon the conditions of sale, and in the event of the plaintiff company being the purchaser, to allow credit in accordance with the directions contained in the decree. The sale was held on the premises on July 4, 1931, and the plaintiff company became the purchaser for the sum of Rs. 100.

On August 5, 1931, within the time limited by section 282 of the Civil Procedure Code, the first defendant petitioned that the sale be set aside on the ground of irregularities in advertising and conducting the sale as a result of which, he alleged, he had suffered substantial injury. The inquiry on this petition opened on October 9, 1931, and terminated with the order now appealed from, dated November 9, 1932. On the opening day, counsel for petitioner raised an additional ground in support of his petition which is entered on the record in the following terms : -

" That inasmuch as the plaintiff has obtained directions in the decree entitling him to bid for and purchase the property without any conditions or reservations, which authority he should have obtained by a specific order for this purpose on plaintiff's application in that behalf, the plaintiff should hot be entitled to purchase the property without a valid authority to bid."

The learned trial Judge noted that this point was not raised in the petitioner's statement of objections, and the objection was not taken within thir