Sobita Terunanse v. Samapala Terunanse.
Present: Garvin J. and Maartensz A.J.
SOBITA TERUNANSE AND ANOTHER v. SARNAPALATERUNANSE AND OTHERS.
134—D. C. (Inty.) Chilaw, 9,496.
Jurisdiction—Resistance to proprietary decree—By judgment-debtor—Complaint to Court—Jurisdiction of Court passing the decree—CivilProcedure Code, ss. 325 and 326.
Where resistance is offered to the execution of a decree for possessionby persons who are bound by the decree, the Court which passed thedecree has jurisdiction to inquire into the complaint.
Where resistance is occasioned by persons claiming the property ingood faith, the question of jurisdiction is determined by the ordinarytests which govern jurisdiction in a regular action.
GARVIN J.—Sobita Terunanse v. Samapala Terunanse.343
^ PPEAL from a judgment of the District Judge of Chilaw.
H. V. Perera, for appellant.
R. L. Bartholomeusz, for respondents.
January 18, 1933. Garvin J.—
The petitioner complained to the Court under the provisions of section.325 that the officer charged with the execution of a decree for possessionin his favour was resisted and. obstructed by the second, third, fourth,fifth, sixth, seventh, and eighth respondents to his petition and thatthey did so at the instigation of the first respondent. An interlocutoryorder under section 377 was duly made by the Court. The respondentsduly appeared and objected to the jurisdiction of the Court. Theirobjection was that the lands of which the officer endeavoured to deliverpossession to the petitioner being lands outside the local limits assignedto this District Court it had no jurisdiction to entertain or investigatethe complaint. The learned District Judge upheld the objection thathe had no jurisdiction to investigate the matter of the complaint anddismissed the petition. The only question for us is this question ofjurisdiction; the complaint has not yet been investigated.
Section 325 and the sections which follow it have been enacted for thepurpose of providing certain summary remedies in cases in which thereis resistance to the execution of decrees for the possession of property.What the law prescribes is that a complaint may be addressed to theCourt, and that that Court should in the first instance investigate thematter of the complaint and if it is satisfied that resistance or obstructionwas caused by the judgment-debtor or by some person at his instigation“ commit the judgment-debtor or such other person to jail for a termwhich may extend to 30 days and direct the judgment-creditor to beput into possession of the property ”. If in the course of this investi-gation the Court is satisfied that the resistance or obstruction had beenoffered by some person other than the judgment-debtor claiming ingood faith to be in possession of the property on his own account it shalldirect the petition of complaint to be numbered and registered as aplaint in an action between the decree-holder as plaintiff and the claimantas defendant. There is first a jurisdiction to exercise certain punitivepowers so as to make a Court’s decrees effective against the person orpersons against whom they have been entered by compelling the judg-ment-debtor or any person acting at his instigation to submit to thatdecree upon pain of being punished by a term of imprisonment. Therecan be no question that that jurisdiction is vested in the Court whichpassed the decree. The words of section 325 which permits the judg-ment-creditor “ to complain thereof to the Court ” when read in thecontext in which they appear clearly indicate that the Court to whichthe complaint was to be made was the Court which passed the decreeand in the nature of things it is but natural and proper that resistance/to the execution of its decrees by persons who are bound by those decreesshould be dealt with by the Court whose decree is thus flouted. Butwhere upon its investigation the Court finds that the resistance was notoccasioned by or, at the instigation of the person bound by the decree
Jinadasa v. Silva
but by a person who claims the property or at least to be in possessionof . the property in good faith on his own account, the section providesfor a summary inquiry into the respective claims of the parties. Whilethe Court is empowered to direct that the complaint be numbered andregistered as a plaint the question has arisen whether it also has beengiven jurisdiction to try and determine the respective claims of the parties.
Now- this Court has in two judgments which have been referred toin the course of the argument, namely the cases of Daniel v. Rasiah1and Pariyagam Pillai v. Cader Meera2, after a careful consideration ofthe provisions of these sections taken the view that the Court has nojurisdiction to try to determine the rights of the claimants where theland is situated outside the limits of the Court’s jurisdiction. Butthese judgments, have been misunderstood and misconstrued .in theCourt below as authority for the proposition that the Court which passedthe decree under execution had no jurisdiction to exercise the powerscreated by sections 325 and 326 in any case in which the land is situatedoutside its jurisdiction. The judgments, while they are authorityfor the proposition that when we reach the stage of investigation intothe respective claims of the judgment-creditor and the claimant to thepossession of the land the question of jurisdiction must be determinedby the ordinary tests by which jurisdiction is determined in any regularaction, have not said and did not intend to say that the punitive powerscreated by sections 325 and 326 are not exercisable by the Court whichpassed the decree under execution, unless the land in respect of whichthe obstruction or resistance took place was situated within the locallimits of its jurisdiction.
The judgment under appeal must therefore be set aside and the casesent back for investigation of the matter of the complaint. The appel-lant is entitled to the costs of this appeal and of the inquiry in theCourt below.
MaArtensz A.J.—I agree.
SOBITA TERUNANSE AND ANOTHER v. SARNAPALA TERUNANSE AND OTHER