Back
BEATRICE PERERA v. PERERA N.A.
NLR62V5
1960 [IN THE
PRIVY COUNCIL]
Present : Viscount Simonds, Lord Tucker, Lord Jenkins,
Lord Morris of Borth-y-Gest, Mr. L. M. D. de Silva
BEATRICE PERERA, Appellant, and N. A. PERERA and other
Respondents
Privy Council Appeal No. 24 of 1957
S. C. 99-100-D. C. Colombo, 6,306/L
'Vendor and purchaser-Exceptio
rei venditae et tradita Section 238 of Civil Procedure Code-Judgment debtor is
not immune from the consequences of his. Own act.
Under the doctrine of the exceptio rei venditae et traditae the purchaser who
had got possession from a vendor, who at the time had no title or had no right
to convey title, could rely upon a title subsequently acquired by the vendor.
By section 238 of the Civil Procedure Cod
"When a seizure of immovable property is effected under a writ of execution and
made known as provided by section 237 and notice of the seizure is registered.
Under the Registration of Documents Ordinance, any sale, conveyance, mortgage,
lease, or disposition of the property seized, made after the seizure and
registration of the notice of seizure and while such registration remains in
force is void as against a purchaser from the Fiscal selling under the writ of
execution and as against all persons deriving title under or through the
purchaser."
Held, that the words" all persons" do not include the judgment-debtor The
Section was designed and enacted to protect persons against the acts of the
judgment-debtor and not to protect or to benefit the judgment-debtor himself.
Accordingly, it cannot protect a judgment-debtor who sells property pending
seizure and buys it for himself subsequently from the execution-purchaser. In
Such a case, under the doctrine of the exceptio rei venditae et traditae, the
title which the judgment-debtor obtains from the execution-purchaser endures to
the benefit of the person to whom the judgment-debtor had previously transferred
by private alienation pending the seizure.
When J. sold certain immovable property to L. he inadvertently omitted to
mention the fact that, in consequence of a decree entered against him, a notice
of seizure under section 237 (1) of the Civil Procedure Code had been served on
him and registered in respect of that property. At the execution sale which took
place after the sale to L. the property was bought by T. who, shortly
afterwards, sold it to the plaintiff who was the wife and nominee of J. In the
present action for declaration of title brought by the plaintiff against the
second defendant, to whom the property had been devised by L.
Held, that inasmuch as section 238 of the Civil Procedure Code did not render
void as between themselves the deed of conveyance from J. to L., there was no
statutory provision, which hindered the operation of the common law. Title
passed automatically from the plaintiff and nominee to the second defendant (as
L.'s successor) under the doctrine of the exceptio rei venditae e' traditae at
the moment that T. transferred the property to the plaintiff.
APPEAL
from a judgment of the Supreme Court
reported in N. L. R. 440.
Joseph Dean, for the plaintiff-appellant.
No appearance for the defendants-respondents.
Cur. adv. vult.
March 8, 1960. [Delivered
by MR. DE SILVA]
This is an action for declaration of title brought in July, 1951, by the
appellant in the District Court of Colombo in respect of certain property which
had previously been sold by her husband one Julius Perera to one Lewis on Deed D
9 of the 17th April, 1950. Lewis had died in August 1950, leaving the property
to his daughter the second respondent who was the second defendant in the
action. Probate of Lewis' will was issued to the second defendant's husband who
was the first defendant and is the first respondent. The appellant also asked
for an order of -eviction. The third, fourth and fifth respondents are persons
in occupation under the second respondent.
The learned District Judge gav
