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GABRIEL PERERA v. CHANDRASEKERA
NLR59V60
1956 Present :
Gunasekara, J., and Pulle, J.
D. A. GABRIEL PERERA, Appellant, and H. P. P. CHANDRASEKERA
et al., Respondents
S. C. 211-D. C. Gampaha, 864/P
Execution of decree-Seizure of
immovable property-Failure to register notice of seizure-Private sale of seized
property by judgment debtor- Validity as against subsequent conveyance by Fiscal
to execution purchaser-Civil Procedure Code, ss. 238, 289, 291.
Where immovable property is seized in execution of a decree, failure to register
the notice of seizure in terms of section 238 of the Civil Procedure Code will
cause a subsequent private sale of that property by the judgment debtor to
prevail against a conveyance executed later by the Fiscal in favour of the
execution purchaser, even though, prior to the date of the Fiscal's conveyance,
the purchaser at the execution sale had sold the same property to a third party
and repurchased it from him and the sale to the third party and the repurchase
were duly registered prior to the date of the private alienation by the judgment
debtor. In such a case, the provisions of section 289 of the Civil Procedure
Code cannot avail the execution purchaser to claim title to the property as
against the private alienee.
APPEAL
from a judgment of the District Court,
Gampaha.
H. W. Jayewardene, Q.C., with J. M. Jayamanne, for the 1st
defendant-appellant.
L. G. Weeramantry, for the 2nd and 11th defendants-respondents.
Cur. adv. vult.
June 13, 1956. PULLE, J.-
The question which arises for determination in this appeal is whether a share
(1/2 of 11/12ths) of the property sought to be partitioned, which once belonged
to one Eusenia Pieris, has devolved on the plaintiff and the 2nd and 11th
defendants as found by the learned District Judge or on the 1st defendant who is
the appellant. The facts are not in dispute.
In execution of a decree in D.C. Chilaw Case No. 10,881 against Eusenia Pieris
her right, title and interest in the property was sold by the Fiscal on 2nd
June, 1939, and was purchased by one Jeramanu Perera. The sale was confirmed on
3rd November, 1939. In 1942 Jeramanu Perera, who had not then obtained a
Fiscal's conveyance, by deed P18 purported to sell an undivided 1/2 of ll/12ths
of the land and in 1943 the vendee on P18 reconveyed the share to Jeramanu
Perera by deed P19. Jeramanu Perera died thereafter leaving as his heirs his
widow the 2nd defendant and two children the plaintiff and the 11th defendant.
The plaintiff, as the administrator of the estate of his father, applied to the
court in which writ of execution was taken out against Eusenia Pieris for an
order on the Fiscal to issue a conveyance to him in his capacity of
administrator. On this application the Fiscal executed a conveyance in favour of
the plaintiff by P20 of 1951.
The claim of the 1st defendant is
based on a deed, 1 Do of 1946, by which Eusenia Pieris's mother and a brother
and sister, as her sole surviving heirs, sold 1/2 of 11/12ths of the land to the
1st defendant.
The dispute between the parties centres round the fact that the seizure of the
share of Eusenia Pieris was not registered before the execution of 1 D5 of 1946
or at any time whatever. The submission on behalf of the 1st defendant is that
the failure to register is decisive of the case in his favour. Learned Counsel
for the respondents, the heirs of Jeramanu Perera, concedes that a Fiscal's
conveyance of a property, the seizure of which had not been registered, would
not generally prevail against a prior deed of sale of the property, but submits
that, in view of the contents of the two deeds P1 8 and P1 9 referred to earlier
by which Jeramanu Perera sold and re-purchased the interests of Eusenia Pieris
and of the fact that they were duly registered, the deed 1 Do was ineffective to
pass title to the 1st defendant.
In the Divisional Bench case of Hendrick Singho v. Kalanis Appu [1 (1921) 23 N.
L. R. 80. ]
