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Present: De Sampayo J.
SAPAPATHIPIL/LAI v. ALAGABATNAM.163—P. C. Batticaloa, 10,844.
Application for delivery of possession by purchaser at Fiscal's sale after hehad transferred the property to a third party—Resistance to Fiscal'sofficer—Penal Code, ss. 183 and 186—Order ultra vires—CivilProcedure Code, s. 287.
C who purchased a property at an execution sale sold it to S.S moved for an order of delivery of possession, which was refused.Thereupon C moved for an order of delivery of possession to himself,and asked that as he was not able to be present, the Fiscal liedirected to put S in possession on his behalf. The accused (judg-ment-debtor) prevented the Fiscal from putting S in possession,and was convicted under sections 183 and 186. Penal Code.
Held, that the conviction was bad. For a conviction undersection 188, the order must be lawful. Resistance to an order whichis ultra vires is justified. Only the exerutiou-purchaser can movefor order for delivery of possession; a private purchaser from theexecution-purchaser is no party tQ the execution proceedings, and be'cannot move for an order for delivery of possession. C himself was
disqualified, because after the sale to S he was divested of hischaracter as execution-purchaser, and could no longer ask theCourt to continue the execution proceedings in his favour byputting him in possession of the land of which by hiB own acts. hehad ceased to be owner.
^HE facts appear from the judgment.
Bartholomeusz, for accused, appellant.
Jansz, C.C., for the respondent.
May 18, 1922. De Sampayo J.—1922.
This case in the guise of a criminal prosecution raises nu importantquestion on a point of civil procedure. The accused was judgment- Alttgaranmmdebtor in case No. 839 ot the Court of Requests of Batticaloa, andunder writ of execution issued in that case a certain land belonging .to the accused was sold by the Fiscal, and was purchased by theexecution-creditor Chelliah, who obtained a Fiscal’s transfer on.
March 31, 1921. Chelliah by deed dated September 17, 1921, soldthe land to Subramaniam. On October 14,1921, Subramaniam
moved for an order of delivery of possession of the land to him.
The Commissioner very rightly considered that Subramaniam aspurchaser from Chelliah was not entitled to such an order, and saidthat the application should be made by Chelliah himself. This, asevents have proved, was an unfortunate suggestion, for-Chelliah next-moved for an order of delivery of possession to himself, and askedfurther, that *' as he was not able to be present,” the Fiscal bedirected to put Subramaniam in possession on his bphalf in termsof section 287 of the Civil Procedure Code. This was an ingenious1attempt at evasion of the previous ruling of the Court that thepurchaser at the Fiscal's sale could apply for an order of deliveryof possession. It is obvious that Subramaniam was not to beChelliah's agent in taking delivery of possession, but was to act in hisown interests. The Court, having cognizance of the true facts, shouldnot have allowed itself to be misled into aceeding to this application,but- it did. When the Fiscal’s officer went with the order to putSubramaniam in possession, the accused prevented him from doingso. The accused has accordingly been prosecuted under sections183 and 186 of the Penal Code and convicted by the Police Magis-trate. The principal question is, whether the order issued in thecivil case wras lawful, and whether the resistance to it constitutedan offence. Mr. Jansz, for the respondent, has argued that undersection J86 it does not matter whether the order was lawful. But1 cannot quite understand that the Police Magistrate intendedto convict the accused under that section. His whole judgmentis taken up with the question of the lawfulness- of the order and ofsettlement with Chelliah, which the accused had alleged. Althoughthere was some evidence that the accused had threatened to cut theFiscal’s officer with a katty, the Police Magistrate does not find as afact that he did so, and if I were to consider the evidence myself,
I should say that the evidence was a gross exaggeration of whattook place. Moreover, the reports made by the Fiscal’s officer tothe Fiscal have, without any translation, been produced, and,so far as I can make out, the Fiscal’s officer did not report thathe was threatened in this way. For this reason I need not discussthe question whether even under section 186 the functions of thepublic servant concerned must not be lawful functions. I shall deal
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with this appeal on the footing that the conviction was undersection 188 of the Penal Code. I do not think there is any doubt,and Mr. Jansz concedes, that under that section the order must helawful, and that resistance to an order which is ultra vires is justified.The Police Magistrate held that the order to deliver possession toSubramaniam on behalf of Chelliah was lawful under section 287of the Civil Procedure Code, as in his view the fact that the landhad been previously transferred by Chelliah to Subramaniam madeno difference. In my opinion, however, that fact makes all thedifference. As I said before, the application to put Subramaniamin possession on behalf of Chelliah was a mere subterfuge, the truth-being that Subramaniam was intended to be put in possession on hisown behalf as the then owner of the land. Section 287 and all theconnected sections are provisions in aid of execution and are partof the execution proceedings. I think that only the execution-purchaser as such can move under them. A private purchaserfrom the execution-purchaser is no party to the execution proceed-ings, and to allow him to take advantage of the above provisionsis to make an unauthorized and improper extension of them. Onthe other hand, Chelliah himself became disqualified, because alterthe sale to Subramaniam he was divested of his character as exe-cution-purchaser, and could no longer ask the Court to continue theexecution proceedings in his favour b}r putting him in possessionof a land of which by his own act he had ceased to be owner. Theorder in question appears tc me to be ultra vires in every respect,and, therefore, cannot form the basis of a criminal prosecution forresisting it.
The- conviction is set aside.
SAPAPATHIPILLAI v. ALAGARATNAM