Wijeyeratne V. Mendis Appu Et Al

1946 Present: Wijeyewardene S.P.J. and Jayetileke J.

WIJEYERATNE, Appellant, and MENDIS APPU et al.,
Respondents.

273-D. C. Kalutara, 22,902.

Sale-Purchase of property by decree holder at execution sale-Subsequent transfer by him to a bona fide purchaser-Validity of the bona fide purchaser?s title if the decree is subsequently set aside.

Where at a sale in execution of a decree the decree holder purchases property which he thereafter sells to a bona fide purchaser the title of the later is not affected if, subsequent to the sale in his favour, the decree under which the property was sold to the decree holder is set aside by Court.

APPEAL from a judgment of the District Judge of Kalutara.

N. E. Weerasooria, K.C. (with him U. A. Jayasundere and Vernon Wijetunge), for the plaintiff, appellant.

E. B. Wikramanayake, for the defendants, respondents.

Cur. adv. vult.

August 26, 1946. WIJEYEWARDENE S.P.J.-

The Plaintiff was in 1932 the owner of the land forming the subject-matter of this action. By P 3 of 1932 the Plaintiff leased the land to the first and the third defendants for a term of twelve years commencing from November 11, 1932, for a sum of Rs.420 paid to the Plaintiff at its execution. It was further provided by P3 that, if the leases put up a boutique on the leased land, they should pay to the Plaintiff additional rent at Rs.60 a year during the last six years of the lease.  

The second defendant, an uncle of the Plaintiff, sued the Plaintiff in C.R. Kalutara 8,995 and obtained judgment by default in November, 1935. In execution of that decree the land in question was sold in July, 1946, for Rs.105. The second defendant became the purchaser at that sale, obtained Fiscal?s conveyance D 2 of November 4, 1936, and conveyed his interest in the land to the first defendant by D 3 of November 17, 1936, for Rs.200.

The Plaintiff sued the first and the third defendants in C.R. Kalutara 10,181 in June, 1941, for the recovery of Rs. 25 which he said was due to him as rent for five months under P 3 in respect of a boutique constructed by them in January, 1941. The first defendant filed answer in August, 1941, denying the Plaintiff?s right to recover any rent and claiming the property by virtue of D 3. That action was dismissed in February, 1942, as the Plaintiff was a absent on the date of trial.

In September, 1941, the Plaintiff applied in C.R. Kalutara 8,995 for the vacation of the decree of 1935 entered against him. Notice of that application was served on the second defendant and as he did not show cause the decree was set aside and the Plaintiff was allowed to file answer in that case. As the second defendant failed to appear on the trial date, decree was entered on December 11, 1941, dismissing the case.

The Plaintiff, thereupon, filed the present action against the first defendant on November 6,1942, alleging that the first defendant was wrongfully claiming to be the owner of the land. The first defendant filed answer claiming the land under D 3. The second and the third defendants were subsequently added as parties on the application of the Plaintiff?s Proctor. The present appeal is by the Plaintiff against the decree of the District Court dismissing his action.

I wish to observe that the issues framed at the trial of this case are of the most unsatisfactory nature. Some dealt with matters about which there was no dispute while the others were of too general a nature. Though, no doubt, it is usual for the practitioners to suggest issues, the duty rests on the trial Judge to see that the case proceeds to trial on proper issues which set out precisely the question to be determined by him

The only point that was argued at the hearing of the appeal was whether the first defendant lost his title on D 3 of 1936 by reason of the reversal of the original decree in C.R. Kalutara 8,995 and the dismissal of that action in 1941. That poin

Click Here to Read the rest of this document