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ROSAHAMY el al. v. DIAGO.
D. C., Negombo, 1,965.
Application by third party dispossessed of property in execution of a decree—Investigation thereon—Matters in issue—Possession—CivilProcedure Code, s. 328—Form of order of Court.
The investigation on an application numbered and registered as aplaint under section 328 of the Civil Procedure Code should belimited to the question as to whether the applicant is entitled tobe restored to possession of the property claimed by him. Thequestion of title to the property should not be gone into.
The final order on such application should not be in the form of adecree in a regular suit, but one merely directing that the applicantbe restored to possession.
HIS was an appeal by the respondent to a petition which was
filed under section 328 of the Civil Procedure Code by aperson in possession of certain property, who had been dispossessedof that property in execution of a decree in a suit to which he wasnot a party.
The District Judge held that the only question for him to tryupon that petition was as to the right of possession. He declinedto go into the question of title, and he found in favour of thepetitioner.
The respondent appealed on the ground that the DistrictJudge was wrong in thus confining the scope of the litigation.
Wendt, with Jayawardana, for appellant.
Van Langenberg for petitioner, respondent.
12th August, 1898. Bonser, C.J.—
The respondent to the petition relies on the words of section 328,which are as follows : “ The court shall proceed to investigate the“ matter in dispute in the same manner and with the like power as“ if an action for the property had been instituted by the applicant“ against the decree-holder and he says the words “ action for the“ property ” point to a proprietory action. In my opinion that isnot their meaning : that is shown by the language used in thesame section describing the nature of the order which the Courtis empowered to make upon the application in case the applicationis successful, and that is to be “ an order restoring the applicant to“ possession.” To my mind it is quite clear that the only questionis the right to possession. I am therefore of opinion thatthe District Judge was right, but the order which he made is
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not quite correct. It began by a recital that “ this action comingAugust 12. “ on for fiixal disposal, &o.” It is not an action, but an application.
Bonseb,0.J. Then it proceeds “It is ordered, declare^ and decreed that
“ the petitioneris entitled to the portion of land therein
“ described.” That is incorrect. The words “ declared and“ decreed ” are inappropriate. The order should be “ that the“ petitioner be restored to the possession of the portion of land“ &e.” The decree should go back to the District Judge to bere-formed in the manner I have pointed out, but subject theretoit is affirmed.
I have no doubt whatever about the meaning of section 328.The words appellant’s counsel relied on were introduced byway of analogy. The nature of the dispute in this case is, who isentitled to the immediate possession, and that is the question tobe determined.