1939     Present: Wijeyewardene J. and Jayetileke A.J.

DE SILVA v. KANAKERATNE.   

86-D. C. Galle, 35,558. 

Sale in execution-Crown lease-Sale of leasehold in execution against lessee- No saleable interest-Eight of purchaser to set aside sale-Caveat emptor-Civil Procedure Code, s. 284.

Where a person took on lease from the Crown property subject to the condition that in the event of the sale in execution of the leasehold interest against the lessee, the demise shall cease and the property shall return to the Crown,-

Held, that the lessee had no saleable interest in the property within the meaning of section 284 of the Civil Procedure Code and that a purchaser of the leasehold interest in execution was entitled to have the sale set aside under the section.

Section 284 of the Civil Procedure Code furnishes a statutory exception to the principle of caveat emptor.

On a decree against the defendant, the purchaser-appellant bought at a sale in execution a Crown lease held by the defendant. The rele­vant clauses of the lease are set out in the judgment. Later the purchaser discovered that he bought nothing as there was no saleable interest of his judgment-debtor in the land and moved the Court to set aside the sale. The learned District Judge following the judgment in Jayawardene v. Jayawardene [1 (1936) 39 N. L. R. 133.], held that there was a saleable interest and dismissed the application. From this order of dismissal the purchaser appeals.

H.V. Per era, K.C. (with him V. F. Gunaratne), for the purchaser, appellant.-The Privy Council in appeal has reversed the judgment cited by the learned District Judge. The judgment is Jayawardene v. Jayawardene [2 (1939) 14 C. L. W. 13.] This is an application under section 284 of the Civil Procedure Code. Section 218 mentions the property which could be sold. Clause (b) of the lease creates a difficulty. A saleable interest is one which the judgment-creditor can sell, even though it may be claimed by someone else or may be avoided at the instance of someone; but if the sale is void, there is no saleable interest.

[JAYETILLEKE A.J.-What about the decision in Wijemanne v. Schokman ? [3 (1910) 13 N. L. R. 301.] ]

There the question arose between the purchaser and someone else. It was not to set aside the sale. The sale does pass rights if it is not set aside and if the alienation is not void. If the grant is made with a condition subsequent, then at the time of sale, there is a " saleable interest". If the judgment-debtor has any interest it could be sold. A clause with respect to forfeiture for failure to pay rent on a lease is on a different footing. There the forfeiture is due to the non-performance of the covenants but here there is a reversion on the happening of a certain

event. If the purchaser can show that the judgment-debtor cannot sell his interests voluntarily, he is entitled to ask the Court to set aside the sale under section 284 of the Civil Procedure Code.

J. E. M. Obeyesekere, for plaintiff, respondent.-Unless the Crown sets the sale aside, the sale is good. The Crown is in the s