The crown is not bound by law to warrant and defend its sales, and the authority cited by the learned Judge refers entirely to a different state of things. 1877. Nov. 6 D. C. Galle, 91. An interlocutory The appellant who was the defendant in case No. 39734, D. C. Galle, was taken up in execution and committed to prison on the 18th June last. On the 11th July, he filed a declaration of insol- order may be vency, and a petition praying that he might be adjudged an insol- rescinded by vent under the Ordinance. Accordingly on the 18th July he was adjudged an insolvent, and discharged from custody. No protection however appeared to have been granted. On the 27th July, the detaining creditor moved for a notice on the insolvent to show cause why the order discharging him from custody should not be rescinded, and the defendant re-committed on the ground that the debt for which he was in jail was contracted by breach of trust. This motion was discussed on the 28th August, and the learned Judge rescinded the order of the 13th July and re-committed the insolvent. the District made it, if Judge who such order issued by mistake or on insufficient or false evidence. Semble that one who is committed to On appeal by the insolvent, Grenier contended that the Dis- prison on a trict Judge had no power to rescind his own order, and even if he writ of exehad, he had no right to do so in the present case, as there was no cution and breach of trust on the part of the insolvent. He was the defen- afterwards is dant in case No. 39,734 and was never charged with fraud or adjudged an insolvent at breach of trust; only that while he was a servant of the plaintiff his own inin that suit, the plaintiff had sustained some damages. That did stance, cannot bring the defendant under any one of the exceptions contemplated by the 30th clause of the Insolvency Ordinance. Layard for respondent: The District Judge had power to rescind his own order. In practice interlocutory orders, such as orders for sequestration, grant of an injunction &c. issued by mistake or on insufficient evidence, are frequently cancelled by the District Judges themselves. In the present instance, the order was clearly made by mistake. The creditor in District Court Galle 39,734, under whose writ the insolvent had been committed, had no notice of the motion made by the insolvent's proctor that the insolvent might be discharged. The creditor was entitled to such notice, and to be heard, before the order of discharge was made. Re Pellatt, 5 L. T. n. s. 853, Ex parte Preston, 5 L. T. n. s. 389, Griffiths and Holmes on Bankruptcy, 914, 915. Grenier replied Cur. adv. vult. not be discharged without notice to his creditor, if the debt involves a fraud or breach of trust. 1877. Nov. 6. And now the court held as follows: It is contended that the District Judge had no power to rescind his own order. The Supreme Court however is of opinion that in the circumstances of this case the District Judge had the power to do what he did. We have consulted all the authorities bearing on the subject, and we find that according to Roman Dutch Law and according to the practice that prevails in the District Courts since their creation, the District Judges had the power to rescind their own orders where such orders have been issued by mistake or on insufficient or false evidence. This of course did not apply to final judgments on the merits, which can only be set right by appeal to the Supreme Court. This seems to be a power inherent in all courts. In the progress of a suit it becomes necessary to make a variety of orders both interlocutory and final, and if the District Judge has not the power to set aside or correct them when they are found to the wrong, the aggrieved party will necessarily be driven to the expensive and dilatory process of appeal. The rule therefore is not only founded in law, but in great practical con venience. Sir Charles Marshall, who wrote before 1839, refers to this very question in several parts of his book. He discusses fully the Roman Dutch Law on the subject and his opinion is in favour of the power (Marshall p. 187and 179). This power appears to have been exercised by District Judges from the time of the charter of 1833, and we are not aware that it had ever been questioned. Orders for sequestration and injunctions ae frequently cancelled by District Courts and we are not prepared to set aside such a salutary practice, especially when it is in conformity with the law. When the insolvent was discharged on the 13th July, the petitioning creditor was not before the court, and the learned Judge's attention does not seem to have been called to the nature of the debt for which the insolvent was in custody. D. C. Matara, 28,331. On appeal against a conviction for contempt of court, arising from plaintiff spitting in court, while being examined in the witness box, Grenier appeared for appellant. The court set aside the conviction in these terms: It is very unlikely that the plaintiff meant any disrespect to the court, and his spitting was probably due to nervousness. It is beneath the dignity of a court to take notice of such trifles. D. C. Galle, 39,132. Libel:-"That upon a writ of execution issued by this court in case No. 36,789 at the instance of the 1st defendant against the 2nd defendant he the 1st defendant, caused to be seized and pointed out for sale among other properties specially mortgaged to him one half part of the land called Wellegoda Watta situated at Ahangama. "That at the sale which took place on the 25th September last, the plaintiff then fully believing and being given to understand that the said part of the said land belonged exclusively to the 2nd defendant, purchased the same for a sum of Rs. 225. "That subsequently the plaintiff received information and became aware of the fact that the 2nd defendant is not entitled to any part of the said part (his half having been previously sold under a writ) but that the said part aforesaid is the maternal share of the 3rd and 4th defendants and two others who are minors and under the protection of the 2nd defendant. 1877 Nov. 6. 1. If a purchaser at a Fiscal's sale completes the contract by paying in the purchase money and thereafter finds out that the judgment debtor had no title to the subject of the sale, such purchaser will not be en lief, but semble would "That the plaintiff with a view to complete the purchase, without prejudice to his right either to the land or purchase money in titled to rethe event of a dispute and eviction by the rightful owner, as lawfully he may do, paid the purchase amount under protest, "And the plaintiff avers that the writ aforesaid was wrongfully be, if payissued by the 1st defendant, who had no right to point out any thing out of the said one half part, and 2nd defendant being present at the sale with intent to defraud the plaintiff purposely and wrongfully suppressed the right of his children, who now assert a right to their shares of the land sold as aforesaid, to the plaintiff's great loss and damage. ment be made under protest. 2. It is a good plea that a fresh suit cannot be instituted to shew or error of "Wherefore plaintiff prays that the defendants be cited to shew cause why the sale, in so far as it effects the rights of the 3rd and 4th defendants and the minors who are still under the protec- irregularity tion of the 2nd defendant, should not be cancelled, and why the plaintiff should not be allowed to receive and take back the sum of Rs. 225, out of the sum of money paid by the plaintiff, or that in the event of the sale being declared good and valid against all parties, that the same may be confirmed and the plaintiff put in peaceable and undisturbed possession of the premises aforesaid, with costs and for such other relief &c." fact or law in a prior suit (Gavin v. Hadden), but in order to succeed such plea should be taken at the proper time. The 2nd 3rd and 4th defendants, though served with process, did not appear, but the 1st defendant did and pleaded that the land was specially mortgaged to him by the 2nd defendant and that plaintiff could not maintain this action as he purchased nothing under submore than the interest of judgment debtor, whatever it was. The learned District Judge held as follows: 3. Service section 5 of el. 30 of the Fiscal's Ordi- · nance. 1877. Nov. 6. "It is perfectly clear that at the time of the sale, the plaintiff (an innocent purchaser) was unaware that half of the land had been previously sold, and the evidence she ws that such half had been previously sold for a debt due to the crown, and hence the other half belongs to the minor children of the 2nd defendant (the execution debtor), and to the 3rd and 4th defendants each. The 3rd and 4th defendants being in default and rule made absolute, their can be now held as a valid sale, but in regard to the other of the minor children the sale in execution must be held bad and the said sale under writ No. 36,789 so far as affects the said is hereby set aside and cancelled and the plaintiff entitled to the proceeds of said 4. "In case 36,789 when the question of proceeds was discussed on the 21st July last, the record is 1st and 2nd claimants not served, the 1st claimant being present plaintiff, and it would appear that some time after 22/25 February Mr. Weerasuria for 1st defendant moved to re-issue rule against 1st and 2nd claimants to be left at their last place of abode without any reason, the previous record of the 16th February shewing "that 1st and 2nd claimants are reported not now in the village" and the report of the Fiscal is that it was left at the last place of abode : this is wholly insufficient to bar the present plaintiff of his first right. "It is decreed that the 1st defendant (who draws the whole of the proceeds) do pay plaintiff out of it half of what plaintiff paid for half of the land, and that plaintiff be quieted in the possession of one fourth of the land (more fully described in the libel) in common, as it is not shewn that 1st defendant knew of half having been previously sold just as much as plaintiff himself. Parties to pay their own costs." : On appeal Layard for 1st defendant and appellant (Morgan with him) The respondent having purchased at a Fiscal's sale, he did so at his own risk and clearly had no right to claim a refund of the purchase money, D. C. Colombo, 48,472, Vanderstraaten's Rep. 24, and D. C. Kandy, 58,857, Civ. Min. 10th July 1875. Further, the respondent claimed in the original case No. 36,789 D. C. Galle to have the purchase money refunded, and appellant on that occasion obtained a rule on the respondent (who was 1st elaimant in that case), "to shew cause why his claim should not be set aside." That rule having been made absolute against the respondent, he cannot maintain the present action. The proper course which the respondent should have adopted was to make the application, which he now makes in this suit, in the original case No. 36,789. Gavin v. Hadden, 3 L. R., P.C. 726. And lastly, the substituted service ordered by the District Judge was regular and in accordance with the provisions of the sub-section 5 of clause 20 of the Fiscal's Ordinance No. 4 of 1867, and the respondent has failed to shew any reason or cause why the rule made absolute against him in D. C. Galle 36,789 should be re-opened, and consequently the learned District Judge was wrong in decreeing the appellant to refund 4th of the purchase money. Van Langenberg for respondent was heard contra, And now the court held as follows: Cur, adv. vult. The averments in plaintiff's pleadings have been established. The charge of fraud against 2nd defendant indeed is not proved, but as between him and plaintiff, it is as good as proved, since he has not traversed it. The District Judge has confirmed the sale so far as concerns the 4th belonging to 3rd and 4th defendants, who are in default. This was clearly wrong, since the pleadings disclose no ground whatever for a decree against them; but on the contrary, the plaintiff himself alleges that their title is good. They however have not appealed, and that part of the decree will therefore be undisturbed. As regards the 4th belonging to the minors, the District Judge has cancelled the sale, ordering 1st defendant, who appears to have drawn the whole proceeds of sale, to repay its price to plaintiff. If plaintiff had purchased at the Fiscal's sale, and the purchase and sale had been completed before he found out the judgment debtor's want of title, he would clearly have had no title to relief, according to the rule laid down by this court in D. C. Colombo No. 58,472 Vanderstraaten 26, and the case recorded in the Civil Minutes, 13th July 1875. However he found it out soon after the sale, and paid his purchase money under protest. Before considering whether the circumstances of this protest makes a difference in plaintiff's favour, entitling him to succeed, we must dispose of two objections urged in appeal on behalf of the appellant, 1st defendant. It appears that in the original suit No. 36,789, after plaintiff had put in a formal claim to have his purchase money refunded, and been noted in the record as "1st defendant" in that case, the present 1st defendant, who as plaintiff, obtained on 3rd December 1875 a rule nisi on 1st claimant, to show cause why his claim should not be set aside. On 16th February 1876, 1st claimant ⚫ was reported" not now in the village", and thereupon the other plaintiff's Proctor obtained leave to re-issue the rule "to be left at his last place of abode". This having been done and 1st claimant not appearing, the rule was made absolute against him, so 1877 Nov. 6. |