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

DIAS v. SILVA

234-D. C. Galle, 36,097 

Sale of land-Right to a re-transfer reserved-Sale of transferor's right in execution-Vesting of property in purchaser-Transferee, a bidder at execution sale-Estoppel-Civil Procedure Code, s. 341.

The defendant purchased certain property from A by deed of transfer containing a provision whereby the defendant agreed with A that the latter his heirs, executors, and administrators, but not his assigns, should be entitled to a transfer of the property before August 11, 1937, on payment of the purchase price with interest.

In execution of a decree against A, his rights under the deed were duly seized and sold by the Fiscal and purchased by the plaintiff on May 13, 1937, for a sum of money paid at the sale at which the defendant himself was a bidder.

An application by A to set aside the sale was refused by the District Court and the sale was confirmed on August 9, 1937. In appeal the sale was set aside and the case sent back for further inquiry.

But eventually, the sale was confirmed by the Supreme Court.

On August 7, 1937, the plaintiff instituted the present action claiming a re-transfer as provided in the deed.

Held, that the right to a re-transfer under the deed vested in the plaintiff, in terms of section 275 of the Civil Procedure Code, on payment by him of the purchase money when the sale became absolute.

If an order of Court is required, the order made on August 9, confirming the sale must be regarded as compliance with the section.

Held, further, that the defendant was estopped from denying the right of the plaintiff to purchase at the Fiscal's sale A's right to ask for a re-conveyance of the property, having been a bidder at the sale himself.

APPEAL from a judgment of the District Judge of Galle.

H. V. Perera, K.C. (with him E. B. Wickremanayake and H. A. Chandrasena), for the plaintiff, appellant.

N. E. Weerasooria, K.C. (with him N. Nadarajah, U. A. Jayasundera, and V. F. Guneratne), for the defendant, respondent. 

Cur. adv. vult. 

February 12, 1940. HOWARD C.J.-

This is an appeal by the plaintiff-appellant from an order made by the District Judge of Galle on July 29, 1938, dismissing the plaintiff's action with costs. The case has arisen out of a deed of Conditional Transfer No. 630 dated October 8, 1934, by which one E. W. Alahakoon for the sum of Rs. 750 transferred certain property to the defendant. This deed contained a provision whereby the defendant agreed with the said Alahakoon that the latter his heirs, executors and administrators, but not his assigns should be entitled to a transfer of the said property on or before August 10, 1937, on the payment of the said sum of Rs. 750 and interest at 16 per centum per annum. In execution of a decree against Alahakoon in D. C. Galle, case No. 33,457, his rights under the deed were duly seized and sold by the Fiscal and purchased by the appellant on May 13, 1937, for the sum of Rs. 315 paid at the said sale at which the defendant hims