1940     Present: Howard C.J. and Soertsz J.

PERERA v. JONES et al.

110-D. C. Colombo, 48,598. 

Mortgage decree-Sale of property by auction-Application for commission- Notice to judgment-debtor-Execution against other property-Applica­tion for writ-Civil Procedure Code, s. 347-Mortgage Ordinance, s. 12 (Cap. 74).

Where a decree is entered in a hypothecary action under section 12 of the Mortgage Ordinance directing that the property mortgaged be sold by auction, and where the judgment-creditor applies for a com­mission for the sale of the property by an auctioneer, it is not necessary to give notice as required by section 347 of the Civil Procedure Code.

Where, in such a case, it is proposed to levy execution on property other than the mortgaged property the Court would require an applica­tion for execution under sections 223 and 224 of the Civil Procedure Code.

Muttu Roman Chetty v. Mohamedu (21 N. L. R. 97) distinguished.

THIS was an action on a secondary mortgage brought by the plaintiff against the first defendant. Under the decree entered in the action the property mortgaged was ordered to be sold by an auctioneer freed from the interests of the second defendant, who had purchased the property from first defendant after the mortgage. When the plaintiff's proctor moved for a commission to be issued to a licensed auctioneer to sell the mortgaged property in terms of the decree, he submitted an application for execution framed in terms of section 224 of the Civil Procedure Code and the District Judge ordered notice on the first defendant. After notice was served the defendant was absent and the commission to sell was issued.

Before execution of the transfer, the second defendant made an application to set aside the sale on the ground that he had no notice of the issue of the commission and the sale, as he claimed he was entitled to have under section 347, Civil Procedure Code.

The District Judge refused the application.

N. Nadarajah (with him H. A. Wijemanne), for second defendant, appellant.-The question for consideration is whether section 347 of the Civil Procedure Code is applicable in execution proceedings in a hypothe­cary action. When section 201 of the Code was in force it was held in Walker v. Mohideen [1 (1924) 26 N. L. R. 310 at p. 315.] that the "General Provisions" of the Code, viz., sections 336 to 354 were applicable to sales in execution of mortgage decrees. See also Peiris et al. v. Somasunderam Chetty [2 (1924) 2 Times of Ceylon 189.]. The position is the same even after section 201 of the Code has been superseded by section 12 of the Mortgages Ordinance of 1927 (Cap. 74) - Annamalay Chetty v. Sidambaram Chetty [3 (1931) 33 N. L. R. 277.]. It is true that the sale in the present case is not by the Fiscal. But the " General Provisions " of the Civil Procedure Code would be applicable even to an auctioneer's sale.

[SOERTSZ J.-Why were sections 255 to 288 and 290 to 297 expressly mentioned in section 12 (2) of Cap. 74 unless it was to exclude the other sections of the Civil Procedure Code ?]

The other sections we