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DE SILVA v. DE SILVA et al.
D. C., Colombo, 5,941.
Civil Procedure Code, as. 217, 287, 323, 325, and 326—Obstruction toFiscal delivering possession of land sold under a money decree—Commitment to jail of the person obstructing—Distinction between“ decree ” and “ order ”—Jurisdiction of Police Court to deal withsuch obstruction under s. 183 of the Ceylon, Penal Code.
Resistance or obstruction to the delivery of possession, orderedby the District Court under section 287 of the Civil Procedure Codeto be made to a purchaser of land sold by Fiscal in execution of amoney decree, is not an offence that could.be summarily dealt withby that Court under sections 325 and 326 of the Code.
Per Lawbee, J.—Such resistance or obstruction could be dealtwith more rapidly in the Police Court under section 185 of theCeylon Penal Code than under section 326 of the Civil ProcedureCode.,
~P>LAINTIFF, having obtained a money decree against the-1- defendants, purchased a land seized and sold by the Fiscalin execution of it. She obtained an order of Court undersection 287 of the Civil Procedure Code for delivery of possessionthereof to her or any person whom she may appoint, and she sentone Nonis Silva with the Fiscal’s officer entrusted with the executionof the order to obtain possession of the land, when one HendrickSilva, a defendant in the oase, with certain others, prevented theFiscal’s officer from placing Nonis Silva in possession of the land.The plaintiff thereupon petitioned the District Court against Hen-drick Silva and his agents, praying that they may be dealt withunder section 325 of the Civil Procedure Code.
The Acting District Judge (Mr. Felix Dias) on inquiry foundthat Hendrick Silva had forcibly resisted the Fiscal’s officer in theVon. m.12(56)29
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execution of the order above referred to, and committed him tojail for a period of one month, and ordered the plaintiff to be forth-with put into possession of the land.
Hendrick Silva appealed.
The case came on before Lawbie, J., and Withers, J., on 16thDecember, 1897, when their Lordships disagreeing, desired that thecase should be listed for argument before the Collective Court.
De Saram, for appellant:—It was not competent for the learnedDistrict Judge-to have committed the appellant to jail.
The provisions of section 325 and the following sections of theCivil Procedure Code refer only to resistance to execution of pro-prietary decrees. The decree in this case was a decree for money,and in execution of that decree the land in question was sold andpurchased by the petitioner, who obtained an order for the deliveryof possession of the land under section 287 of the Code; and thisbeing only an order of Court and not a decree, the respondentcould not proceed under section 325 et seq.
Section 217 of the Code speaks of a decree or order of Court,but section 325 only refers to decree for possession of land, andthe appellant submits that section 325 will only apply where aparticular land is in dispute and a decree is entered adjudicatingon the rights of parties with regard to thatjand.
The Code (section 5) defines “ decree ” to mean “ a formal“ expression of an adjudication upon any right claimed or defence“ set up in a Civil Court, when such adjudication, so far as regards“ the Court expressing it, decides the action or appeal ” ; and“ order ” to mean “ the formal expression of any decision of a“ Civil Court which is not a decree.”
From the above-mentioned definitions it is clear that what wasobtained by the respondent in this case was an “ order,” andtherefore section 325 does not apply.
The order under section 287 of the Code is enforceable-as anorder under section 323, but there is no provision in the Codewhereby disobedience to such an order could be punished undersection 325 as there is in the Indian Code (section 324), and asthere was under the old Fiscals’ Ordinance, 1867, section 79.
H. Jayawardena, for respondent:—Decree and order as used inthese sections mean one and the same thing ; a comparison of thewording of the sections shows this. The order is a step in theexecution of the decree, and forms as it were a part of the decree.It is quite clear that the Code intended to re-enact the old law(vide section 79 of Ordinance No. 4 of 1867); the Indian Law
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gives the same remedy to a purchaser at a Fiscal’s sale (IndianProcedure Code, section 334). The intention of‘the Legislaturebeing clear, the omission of the word “ order ” in section 325 isimmaterial, especially as that word is used in these sections withoutany special or technical meaning. This very procedure has beenallowed by the Supreme Court in the case of Perera v. Brampy(2 N. L. B. 121).
29th July, 1898. Bonseb, C.J.—
In this case the appellant was committed to prison ior one monthby the District Judge of Colombo for obstructing a purchaser ofsome landed property, sold at the instance of the Court, from takingpossession of the property. The order was made under section 326of the Civil Procedure Code.
Sections 325 and 326 render it an offence punishable summarilyby the District Judge for a person to resist or obstruct the officercharged with the execution of a writ in execution of a decree for thepossession of property under head (c). Section 287, which dealswith the delivery of possession of property purchased on a sale bythe Court, provides that the Court shall, on the application of thepurchaser, order delivery to be made by putting the purchaser orany person whom he may appoint in possession of the property.It goes on to provide that such an order for delivery of possessionmay be enforced as an order falling under head (c), section 217, thepurchaser being considered as judgment-creditor. Now, section217 provides that a decree or order may command the personagainst whom it operates (c) to yield up possession of immovableproperty, and therefore we have to ascertain what provisionis made for the enforcement of an order under head (c) of section217. It will be noticed that the word is “ order ” and not “ decree.”If we turn to section 323 we find an answer to that question. Itis there provided that “ if the decree or order is for the recovery“ of possession of immovable property,” a certain procedure is tobe followed. Then, section 325, to which I have before referred,provides for resistance or obstruction in the case of a “ decree.”The words “ or order,” which occur in the previous section, do notoccur in this section. Therefore, to hold that sections 325-326apply to that case, we must either insert the words “ or order ” insection 325, or we must read in section 287 the word “ order ” asthough it were “ decree.” I do not think we are at liberty to doeither of these things. Where the liberty of the subject is con-cerned, a statutory enactment must be construed strictly.
A man must not be deprived of his liberty unless the Legis-lature has so enacted it in unmistakable terms. Whatever the
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Bonser, C. J.
intention of the Legislature may have been, in the present case itseems to me that it has not expressed its intention, in unmistak-able terms, that the conduct of the appellant is punishable underthis Code.
I am content to agree in holding that the Code is imperfect inawarding no punishment to those who obstruct the Fiscal underan order to put in possession a purchaser of land sold at a Fiscal’ssale ; I am the less reluctant to agree because I think that a caselike the present could be dealt with and punished with more rapidityin the Police Court under section 183 of the Penal Code than undersection 326 of the Civil Procedure Code. At the same time I mustsay that in my opinion it is plain that the Legislature intended thatthose who resist the possession by a purchaser of land should bedealt with in precisely the same manner as those who resist theenforcement of a decree for land, and I have been unable to share(perhaps to understand) the doubts and difficulties which haveled to much time being occupied in the criticism of sections 287,217, 323, 325, and 326. It is well that the point should be nowdecided one way or the other.
In consequence of a slight difference between my learned brotherLawkie and myself we thought it proper to refer the matter tothe Full Court, as it involved an important question of procedure.I wrote an opinion at some length, but the draft seems to havedisappeared from the record. To the best of my recollection theeffect of it was very much the same as that of the judgment justpronounced by the Chief Justice.
I pointed out the distinction between “ order ” and “ decree ” asmarked by the Code itself, and I pointed out the omission of“ order ” from section 325 of the Code. If I remember rightly, Iobserved that as resistance was punishable by imprisonment itbecame imperative strictly to construe the provisions of the Code. .
As I cannot improve upon what the Chief Justice has said, Ishall content myself by expressing my entire concurrence in hisjudgment.
DE SILVA v. DE SILVA et al