Elaine Muthumani V. Muthumani Et Al.,

1948 Present : Wijeyewardene A.C.J., Jayetileke S.P.J.
and Nagalingam J.
 
ELAINE MUTHUMANI, Appellant, and MUTHUMANI et al.,
Respondents.
 
S. C. 109-D. C. (Inty.) Randy, X 989.

Entail and Settlement Ordinance-Sale sanctioned by Court-Upset price fixed- Sale above upset price-Subsequent higher offers-Application to set aside sale-Power of Court.
 
Petitioner applied to Court under section 5 of the Entail and Settlement Ordinance for the sale of certain property which wa3 subject to a fidei commissum. The sale was allowed and the Court fixed an upset price of Rs. 13,800. The property was sold for Rs. 13,950 to the ninth respondent. Thereafter the petitioner applied to Court to have the sale set aside on the ground that since the sale sho had received higher offers.
 
Held, (Jayetileke S.P.J. dissenting), that the Court was not entitled to set aside the sale even though it was subject to confirmation by Court and minors were interested in getting the highest possible price for the property.
 
APPEAL from a judgment of the District Judge, Kandy.
 
H. V. Perera, K.C., with C. E. L. Wickremesinghe, for the petitioner-appellant.-The sale which the petitioner seeks to set aside in these proceedings was a sale under the Entail and Settlement Ordinance (Cap. 54). The Court ordered the sale subject to confirmation by the Court. Under section 4 of the Entail and Settlement Ordinance it is the Court that has the power to sell, and the Court, for the sake of convenience, employs an agent, i.e., an auctioneer, to conduct the sale. In execution proceedings under the Civil Procedure Code the position is different. Under section 218 of the Civil Procedure Code a judgment-creditor is empowered to seize and sell by the hands of the Fiscal the judgment-debtor's property, and the Court merely supervises the conduct of such execution proceedings under the sections of the Civil Procedure Code. The Court has no power to sell in execution proceedings, but under the Entail and Settlement Ordinance the power to sell is vested in the Court and in the Court alone.
 
On. broad general principles the Court which has ordered the sale subject to confirmation by the Court has the power to refuse to confirm the sale, just as a private owner, who has deputed an agent to sell something belonging to the private owner subject to such owner's confirmation, can refuse to confirm such sale by such agent. In such a case the contract of sale is only complete when confirmation by the owner is obtained. The private owner, in such a case, can act arbitrarily and refuse to confirm the sale for no reason at all, but the Court must act reasonably and judicially. Subject to the restriction that the Court must act judicially and reasonably, the Court has power to refuse to confirm the sale.

There is in this connection a difference between what the Court could do and what the Court should do. The two things are different and should be kept apart. This is an appropriate case where the Court should have set aside the sale, as by doing so the minor stand to benefit considerably. The District Court is the guardian of all minors and should see that minors' interests do not suffer by any act done under the Court's authority. The principle that the, minors' interests should be protected in the case of sales of minors' property was recognized and followed both in Roman Law and in the Roman-Dutch Law.
 
The Courts of Ceylon are Courts of Equity as well as Courts of Law. That is to say in appropriate cases, well recognized principles of Equity which English Courts of Equity followed have also to be followed by the Courts of Ceylon.
 
What is called the practice of Opening Biddings, i.e., ordering resale of estates sold on the orders of Court when a higher price was offered after the sale, was a practice which has been followed by the English Courts of Equity. See 1838 Edition 2, Burge's Colonia

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