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Present: Garvin A.C.-J.
UKKU BALA KOBALA t>. PUNCHI APPUHAMY et ah
311—P. G. Kurunegala, 29,137.
Fiscal—Execution of writ—Authority to Korala—Resistance to lawful
authority—Ordinance No. 4 of 1867, s. 28.
Where a Fiscal had, by a written order'signed by him to whichwas attached the copy of a writ, authorized a Korala to executethe writ,—
Held, that the Korala had authority to execute the writ withinthe limits of his division.
“ It would seem that iu respect of the execution of a writ, whicha Fiscal desires to entrust to a headman, he may adopt one of twocourses : he may send a duly authenticated copy of it with anorder to a headman to execute it, the headman so requested isauthorized to execute it within his local limits; or he may endorsethe writ with the name of any headman within his province ordistrict and thereby constitute such headman a Fiscal’s officerwith authority to execute the writ within the province or districtof the Fiscal, but irrespective of his own local limits.”
PPEAL from a conviction by the Police Magistrate ofKurunegala.
The accused were charged with resistance to the taking of propertyby the lawful authority of a public servant under section 181 of thePenal Code and voluntarily obstructing a Korala in the discharge ofhis public functions. They were convicted on both charges. Onappeal the point was taken that inasmuch as the writ, underauthority of which the property was taken, was not endorsed to theKorala who made the seizure, his authority was not lawful.
James Joseph, for accused, appellants.
SoeTtsz (with R. G. Fonseka), for complainant, respondent.
July 21, 1926. Garvin A.C.J.—
By virtue of a writ issued in case No. 7,036 of the Court ofBequests of Kurunegala the Fiscal caused certain movable propertybelonging to the first accused to be seized. After seizure by theKorala who was the officer entrusted with the execution of the writ,watchers were placed to look after the property. Soon after theseizure the two accused forcibly entered the room in which theproperty under seizure was placed and removed the same. Uponthese facts which are clearly established these accused were broughtto trial on two charges. First, they were charged with resistanceto the taking of property by the lawful authority of a public servant
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GabyinA, C. J.
XJkku RalaKorala v.PunchiAppuhamy
punishable by section 181, and secondly, with voluntarily obstructing*the Korala in the discharge of his public functions. They wereconvicted on both charges.
The point taken in appeal is that inasmuch as the writ underauthority of which the property was being taken was not endorsedto the Korala who made the seizure this was not a case in which thetaking of the property could be said to be by lawful authority. Itis not denied that the writ was regularly issued. It was shown tothe first accused who read it and asked for time to pay. He wastherefore well aware that the property was being seized with a viewto sale under the authority of a writ. He knew also that the pro-perty seized was placed in the custody of two watchers. No soonerthe Korala left the first accused with the assistance of the othertwo accused forcibly removed the property under seizure and madethe execution of writ impossible. There was ample authorityfor the taking of this property. The contention would seem to bethat though such authority existed, the Korala was not a personempowered to take the property in pursuance of that authority andthat the property was not therefore taken by a person who wasvested with authority to take the same.
The Fiscal had, by a written order signed by him to which wasattached a copy of the writ, authorized the Korala to excute thewrit issued in the case. Section 860 of the Civil Procedure Codeenacts that it shall be competent to any Fiscal to whom any writ isissued and to the Fiscal’s Officer to whom the Fiscal may haveentrusted the same for execution to endorse thereupon the name ofany headmen, constable, or officer of Police empowered to act withinsuch Fiscal’s province or district and that the effect of such endorse-ment shall be to constitute such headman, constable, or officer ofPolice an officer of the Fiscal for the purpose of executing the writ.
Another provision of the law relating to this matter is containedin section 28 of the Fiscals Ordinance, No. 4 of 1867. The section isas follows : —
li All native headmen shall, within their local limit be authorizedand required to execute the process which may be duly sentto them for execution, and in the execution thereof theyand such subordinate officers as they may employ shall bemaintained and protected by law as the officers of suchFiscal although not holding any written deputation orwarrant from him further than a copy authenticated bythe signature of such Fiscal or Deputy Fiscal, of theprocess which such headmen shall and may be required to*serve or execute.
This section places all native headmen under a duty and confersupon them a general authority to execute within their local limitsall processes which may be duly sent to them. When so acting they
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are entitled to be " maintained and protected by law ” as Fiscal’sofficers so long as they hold a copy authenticateed by the Fiscal orDeputy Fiscal of the process which they are required to serve orexecute. The term “ process ” as used in the Fiscals Ordinanceincludes a writ.
The Deputy Fiscal who gave evidence in the case said that it wasthe practice to send to native headmen a copy of the writ with anorder to execute the same in. eases where it was thought necessaryto entrust the execution of such writs to such headmen. He gaveno authority for the practice, but it is manifest that it is based onsection 28 of the Fiscals Ordinance.
TJkku RaiaKorala v.PunchiAppuhamy
There are therefore two enactments which enable Fiscals toprocure the execution of writs addressed to them by headmen. Theearlier enactment gives headmen a general authority to executewithin their local limits processes duly sent to them for executionand constitute them Fiscal’s officers with the protection which thelaw gives such officers so long as they hold a copy of the processauthenticated by the Fiscal or Deputy Fiscal.
The Civil Procedure Code, which is the later enactment, says thatany headman empowered to act within such Fiscal’s province ordistrict may be constituted a Fiscal’s officer with power to executea writ if the writ is endorsed with his name. It would seem that inrespect of the execution of a writ which a Fiscal desires to entrustto a headman he may adopt one of the two courses: he may send aduly authenticated copy of it with an order to a headman to executeit, the headman so requested is authorized to execute it within hislocal limits, or he may endorse the writ with the name of anyheadman within his province or district and thereby constitute suchheadman a Fiscal’s officer with authority to execute the writ withinthe province or district of the Fiscal, but irrespective of his ownlocal limits.
There is no suggestion that the writ was executed outside thelocal limits of this Korala. He was duly authorized to execute thewrit within those limits.
There is a subsidiary point taken by Counsel for the appellantswith reference to the conviction entered under section 183. Theperson alleged to have been obstructed is the Korala. Admittedlylie was not present, and the persons actually obstructed were thewatchers placed by him to render the seizuree effective. The accusedwere all aware of the facts which constituted the charges againstthem. Their defence was a total denial. They gave evidencethemselves and stated that they did not remove the property underseizure. Under the circumstances, all that is'necessary is an amend-ment of the conviction to bring it into conformity with the facts.
The appeals are dismissed.
UKKU RALA KORALA v. PUNCHI APPUHAMY et al