1938 Present: Maartensz and Keuneman JJ.

DIAS v. ALAHAKOON et al.

38-D. C. (Inty.) Galle, 33,457.

Movable property-Deed of sale-Right to a retransfer-Sale in execution-Roman-Dutch law.

A right to a retransfer reserved to a vendor in a conveyance gives rise to an action in personam under the deed.

Where such a right is sold in execution, it must be regarded as movable property for purposes of execution proceedings.

BY deed No. 630 of October 6, 1934, the defendant-respondent sold certain immovable property to Porolis de Silva: Under the conveyance, a right of retransfer was reserved to the vendor subject to certain conditions. This right was seized and sold in execution against the defendant and purchased by the appellant. On an application to set aside the sale, the District Judge held that the interest sold was immovable property and that the seizure and sale not being in accordance with the provisions of the Civil Procedure Code, ,the sale was void.

N. E. Weerasooria (with him A. E. R. Corea), for purchaser, appellant. - What was sold was the defendant's right to obtain a retransfer of. a property sold by him under P 1. It was sold as movable property. The sale was attacked by the defendant on various specified grounds. On all these grounds the District Judge has held in my favour, but has set aside the sale merely on the ground that the right sold was hot movable but immovable property. Assuming that he was right in so holding, a sale cannot be set aside on a ground not stated in the petition. See section 282 of Civil Procedure Code. The defendant sought relief under this section.

[MAARTENSZ J. -If the property was sold as movable, how could he have applied, under section 282, which refers to immovable property?]

Section 282 is certainly inapplicable.

The defendant was perfectly aware of the mode of seizure and manner of sale. After he had acquiesced in the proceedings which treated the interest sold as movable property, he could not subsequently question their validity. See Samarasinghe v. Samaradewakere1, which follows the Privy Council decision in Arunachalam v. Arunachalam2.

What the defendant had under P 1 was an action in personam. We relied on Arnolis Appuhamy Harmanis Kalotuwa3, and the authorities cited there showing the distinction between rights in rem and rights in personam.

[MAARTENSZ J. -If the right to retransfer can be assigned only notarially because it is an interest in immovable property, why should it be any the less an interest in immovable property if it is sold in execution?]

I am seeking to distinguish between immovable property as such and a right relating to immovable property. There is no definition of immovable property in the Code, and we have to refer to the Roman-Dutch law

1 (1930) 11 Ceylon Law Rec. 13.
2 (1888) I. L. R. 12 Mad. 19.
3(1926)8 Ceylon law Rec110.

for definition. Arnolis Appuhamy v. Harmanis Kalotuwa (supra) is in my favour. See also 2 Maasdorp, p. 5 (5th ed.), and Walter Pereira's Laws of Ceylon, p. 282 (2nd ed.)

[MAARTENSZ J. -Karuppen Chetty v. Silva et al1. which deals with the sale of a lessor's interest in a lease, may help you.]

[KEUNEMAN J. -Silva v. Selohamy et al2 deals with the procedure applicable to the setting aside of a sale of movable property?]

Yes, it has to be by way of summary procedure, and substantial damage has to be proved by the petitioner. The District Judge has expressly held that there was no substantial damage.

N. Nadarajah (with him U. A. Jayasundara), for defendant, respondent. - What is important is the agreement in P 1. In that deed, the defendant transfers a land to Prolis who in turn stipulates about retransfer to defendant or his heirs, executors or administrators (not to assigns). This agreement comes within the ruling in de Silva v. de Silva3. The convenant agreed to in P 1 was obviously one which ran with the land. The vendor has