Peter v. Carolis
Present:Swan J. and K. D. de Silva J.W. S. PETER ei al., Appellants, and W. S. CAROLIS, Respondent
S. C. 69—70—D. C. (Quasi-Criminal) Galle, 5,115L
Civil Procedure. Code—Section 326—Appeal from order thereunder—Civil in nature—Scope of jurisdiction of Court under s. 326—-Proceedings against minor—Requirement of appointment of guardian ad litem under s. 480.
Proceedings under section 325 et seq. of the Civil Procedure Code are notcriminal in their nature but are steps in aid of execution, and an appeal underthese sections should be constituted as an appeal in a ciU case.
. A miner may be dealt with under section 326 for obstructing a Piscal’sofficer although he is not represented by a guardian ad litem. Section 480can only apply to actions or applications in which the civil rights of minorsare affected and not in any matter where only their personal liberty is at stake.
Tn committing a person under section 326 tbe Court should merely order himto be committed to jail for a specified period. Tbe terms “ simple imprison-ment ” or “ rigorous imprisonment ” cannot be used. Nor can such personbp ordered to enter into a bond to be of good behaviour for any period.
SWAN J.—Peter v. Carolie
j^^lPP~F!AT,S from certain orders of the District Court, Galle.S. W. Jayasuriya, for the appellants.
No appearance for the respondent.
Cur. adv. vult.
December 4, 1953. Swait J.—.
The chief point that arises for decision in this appeal is whether anyorder can be made against unrepresented minors for having obstructedthe fiscal’s officer in the execution of a writ of possession. Before dealingwith this matter I should like to point out that this appeal has beenwrongly designated a quasi-criminal matter. It should have beenmarked, numbered and listed as an ordinary D. C. Interlocutory appeal.
The plaintiff-respondent had obtained a decree against the twodefendants for declaration of title to a certain allotment of land andfor ejectment. Writ of delivery of possession was duly taken out andwhen the fiscal’s officer went to eject the defendants it was alleged thathe was obstructed by the 1st defendant and the present appellants whoare the children of the 1st defendant. The plaintiff thereupon filedan application under Section 325 of the Civil Procedure Code makingthe defendants the 1st and 2nd respondents and the appellants the3rd and 4th respondents. No application was made to have the 3rd and4th respondents who were stated to be minors represented by a guardianad litem nor did the court ex mero motu do so. It should be noted thatthe 2nd defendant was formally made a respondent to the application.In the fiscal’s report it was not alleged that he had resisted the executionof the decree. At the inquiry held under Section 326 of the Code thecourt discharged the 1st respondent but found that the 3rd and 4threspondents had obstructed execution of the writ at the instigation ofthe 1st respondent and committed the 3rd respondent to two weekssimple imprisonment and ordered the 4th respondent to enter into abond in Rs. 100 to be of good behaviour for a period of six months.
Mr. Jayasuriya appearing for the appellants drew pur attention tothe case of Kumarihamy v. Banda1 in which Bertram C. J. pointed outthat proceedings under Section 325 et seq. were not criminal in theirnature but were steps in aid of execution and that an appeal underthese sections should be constituted as an appeal in a civil case. By aparity of reasoning,the term “ simple imprisonment ” could not properlyhave been used by the learned District Judge when Be committed the1st appellant to jail. Simple and rigorous imprisonment are termswhich are appropriate to penal offences and even when a person issentenced to a term of simple imprisonment there are certain coilsequencesthat follow while he is in jail. In committing a person under Section326 a District Judge or Commissioner of Requests should merely order
(1918) 1 O. L. See, S3.
SWAN J.—Peter v. CaroKs
Viim to be committed to jail for a specified period which of course couldnot exceed thirty days. I would therefore so far as the 3rd respondentis concerned delete the words simple imprisonment and order that he becommitted to jail for two weeks. In ordering the 4th respondent toenter into a bond to be of good behaviour for six months the learnedDistrict Judge was clearly acting without jurisdiction. I would thereforedelete that order and direct that she be discharged.
This, however, is not the substantial point. The real question iswhether the minors should have been represented by a guardian adlitem. Chapter 35 of the Civil Procedure Code deals with actions byand against minors and persons under other disqualifications. Section480 in that chapter is as follows :—
“ Every order made in an action or on any application before thecourt in or by which a minor is in any way concerned or affected withoutsuch minor being represented by a next friend or guardian for theaction, as the case may be, may be discharged on application made onsummary procedure for the purpose ; and, if the proctor of the partyat whose instance such order was obtained knew, of might reasonablyhave known, the fact of such minority, it may on such applicationbe discharged with costs to be paid by such proctor, provided he wasduly made a respondent to the application. ”
It was stressed that an application made by the decree holder underSection 325 of the Code was one in which the minors were concerned oraffected. I think the Section can only apply to actions or applicationsin an action in which the civil rights of minors are affected and not inany matter where only their personal liberty is at stake. It would havebeen different if the learned District Judge had found that the appellantswere claiming in good faith to be in possession of the property and hadmade an order under Section 327. Then undoubtedly representationof the minors would become necessary.
I would therefore hold that the minors need not have been representedin these proceedings. Subject to the variation in the orders madeby the learned District Judge the appeal is dismissed.
K. D, be Silva J.—I agree.
W. S. PETER et al., Appellants and W.S. CAROLIS, Respondent