Hadjiar Et Al V. Kuddoos Et Al

1935  Present   :  Koch J. and Soertsz A.J.

HADJIAR et al. v. KUDDOOS et al.

 37-D. C. Colombo, 47,499.

Fiscal's sale-Failure of Fiscal to demand payment of amount of writ from judgment-debtor-Substantial irregularity-Purchase by holder of money decree-No sanction of Court-Application to set aside sale- Civil Procedure Code, ss. 226. 272, 282, and 344.

The failure of the Fiscal to demand from the judgment-debtor the amount of the writ in terms of section 226 of the Civil Procedure Code is a substantial irregularity, which renders the sale held thereafter null and void.

Such a sale may be set aside under section 344 of the Civil Procedure Code.

The holder of a money decree is bound by the provisions of section 272: of the Civil Procedure Code which forbid the execution-creditor to buy the property sold in execution without the sanction of Court or in contravention of the terms imposed under the section.

De Silva v. Upasaka Appu[1 6 C. W. R. 227.] and Chellappa v. Selvadurai[2 15 N. L. R. 189.] followed.

APPEAL from an order of the District Judge of Colombo.

N. E. Weerasooria (with him Chelvanayagam), for plaintiffs, appellants.

H. V. Perera, for purchaser, respondent.

H. E. Garvin, for defendant, respondent.

Cur. adv. vult.

October 25, 1935. KOCH J.-

The plaintiff (appellants) in this case sued the defendant (first respondent) for a declaration of title to a house and grounds, presently bearing assessment No. 14, Hulftsdorp street, Colombo. On March 16, 1934, when the case was taken up for trial, the defendant raised the question of misjoinder which was upheld by the learned District Judge The plaintiff's counsel thereupon elected to confine the claim to the second plaintiff alone. There was an order as to costs also made in favour of the defendant. The defendant lost no time in pressing his advantage, and having issued writ for these costs, seized this very property and sold it. The purchaser at this sale was the second respondent. The price realized was only Rs. 100, although the property was valued by the plaintiffs for the purposes of their plaint at Rs. 4,000. Considering that the premises No. 14 consisted of a house and grounds and that the valuation put upon it was necessary for regulating the stamp duty payable on the pleadings, &c., it is not likely that any but a conservative value would have been imposed on the subject-matter of the action. It follows that there is every reason to regard the case as one of great hardship to the appellants.

The grievance of the appellants, who have made an application to set aside the sale, is that neither the Fiscal nor his deputy who was entrusted with the execution of the writ had repaired to the second plaintiff's dwelling house or place of residence and had required him to pay the amount of the writ, and that, in consequence of this omission, he knew nothing about the sale and only came to hear of it when the purchaser gave notice to the appellant's proctor of an application by him to Court to be substituted in room of the second appellant as the second plaintiff, and, that further, as the result of ignorance on his part, he was unable to apply under section 282 of the Civil Procedure Code within thirty days of the report of the sale to Court, to have the sale set aside on this ground as well as on the ground that the purchaser was a mere nominee and that the actual buyer was the first respondent who, acting in conspiracy with the buyer, procured the purchase in the name of the nominee.

Now, had such an application been made under this section in time, it is conceded that it was possible for both these points to have been raised by the appellants, although it is argued by the respondents' counsel that the contention on the first point must fail as section 226 of the Civil Procedure Code is not imperative in its terms but merely directory, and that the second point also cannot succeed

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