1956 Present : Gratiaen, J., and Gunasekara, J.

R. A. PERERA et al., Appellants, and BEATRICE PERERA,.
Respondent

S. C. 99-100-D. C. Colombo, 6,306L

Exceptio rei venditae et traditae-Seizure of immovable property and registration of notice of it-Sale by judgment-debtor pending the seizure-Subsequent purchase by his nominee from execution purchaser-Validity and effect of such purchase- Civil Procedure Code, ss. 237 (1), 238.

Where, during the pendency of a duly registered seizure of immovable property, the judgment-debtor sells the property by private alienation prior to the Fiscal's sale, the vendee is entitled to the benefit of the exceptio rei venditae et traditae if the judgment-debtor or his nominee buys the property subsequently from the person who purchases it at the Fiscal's sale. Although section 238 of the Civil Procedure Code declares inter alia that any sale during the pendency of the registration of a notice of seizure shall be " void " as against an execution purchaser and as against " all persons " deriving title under or through him, and although the words " all persons ", being words of the utmost generality, are ex facie wide enough to include the judgment-debtor himself, it does not necessarily follow that the superior title acquired by the judgment-debtor by virtue of section 238 can be vindicated in violation of his subsisting personal obligations independently undertaken by contract or imposed on him under the general law.

APPEAL from a judgment of the District Court, Colombo.

Sir Lalita Rajapakse, Q.C., with T. B. Dissanayake and E. S. Amerasinghe, for the defendants (appellants in S. C. 100 and respondents in S.C. 99).

H, W. Jayewardene, Q.C., with V. Arulambalam and B. Senaratne, for the plaintiff (respondent in S. C. 100 and appellant in S. C. 99).

Cur. adv. vult.

441

February 10, 1956. GRATIAEN, J.-

This is a rei vindicatio action. The plaintiff's husband, Julius Perera, owned the property until 17th April 1950. He was in serious financial difficulties towards the end of 1949, and a hypothecary decree for the sale of the property had been entered against him in action 2447 M. B. of the District Court of Colombo. In addition, it was under seizure in execution proceedings in certain other cases. One such decree (to which I shall later refer) was entered in D. C. Colombo 9041/S in favour of S. M. D. Deen for Rs. 1,000 and interest payable on a promissory note.

In April 1950, Julius' uncle, Don Lewis Perera Appuhamy (hereafter referred to as " Lewis "), reluctantly agreed to assist him to settle his debts so as to prevent the property, which was then worth about Rs. 30,000, from being sold in execution. He received from Julius a document (D8) indicating that Rs. 16,000 was required to meet his liabilities. An agreement was arrived at, and was implemented on 17th April 1950, whereby Julius sold the property to Lewis for this amount subject to the vendor's right to re-purchase it for a like amount within 5 years. The conveyance P9 contains the following warranties and assurances :

" And I the said vendor for myself and my heirs, executors, administrators and assigns do hereby covenant, promise and declare with and to the said vendor, his heirs, executors, administrators and assigns that the said premises hereby sold and conveyed are free from any encumbrance whatsoever and that I have not at any time heretofore made done or committed or been party or privy to any act, deed, matter or thing whatsoever whereby or by reason the said premises or any part thereof are, is, can, shall or may be impeached or encumbered in title, charge, estate or otherwise howsoever and that I and my afore-written shall and will at all times hereafter warrant and defend the same or any part thereof unto him and his afore-written against any person or persons whomsoever and further also shall and will at all times hereafter at the request of th