ABEYRATNE AND ANOTHER
COURT OF APPEAL'
WIJEYARATNE, J. ANDWEERASEKERA, J.
A. 566/85 (F)
C. RATNAP.URA CASE NO. 5368/P5 OCTOBER, 1992.
Partition – Order for delivery of possession – Partition Law, section 52(1) -Application of 10 year bar in s. 337 of Civil Procedure Code in relation to paymentof owelty and compensation under s. 52(1) of the Partition Law – Interpretation -Generalia soecialibus non-derogant.
By a final partition decree dated 24.10.71 a party was'declared entitled to certainlots and also ordered to pay owelty and compensation to certain other parties,which amounts were paid only on 9.11.83.
He thereafter made an application for an order for delivery of possession undersection 52(1) of the Partition Law, when objections were taken based on section337 of the Civil Procedure Code which prohibits an application for execution ofdecree after 10 years from the date of decree (subject to certain exceptionswhich were not relevant).
The proviso to section 52(1) of the Partition Law, which provides that a party whois liable to pay compensation or owelty, shall not be entitled to obtain an order fordelivery of possession until such amount is paid, is applicable in the matter andthe 10 year period in section 337 of the Civil Procedure Code begins to run fromthe date when compensation or owelty is paid.
When the Legislature has given its attention to a separate subject and, madeprovision for it, the presumption is that a subsequent general enactment is notintended to interfere with the special provision unless it manifests its intention veryclearly. This is expressed by the Latin maxim generalia specialibus nori-derogant(general words do not derogate from very special provisions).
Neither section 77 of the Partition Law which states that the provisions of the CivilProcedure Code relating to the execution or service of writs etc. shall apply inrelation to the execution of service of writs etc. in a partition action, nor section 79of- the Partition Law which lays down that in any matter or question of procedurenot provided for in the Partition Law the procedure laid down in the CivilProcedure Code in a like matter or question is to be followed by the court governsthe matter because special provision has been made by the Legislature undersection 52(1) of the Partition Law, and the proviso thereto in respect of partitiondecrees.
Cases referred to:
Corporation of Blackpool v. Starr Estate Company Limited  1AC27, 34.
Seward v. Vera Cruz (1884) 10AC 59, 68.
APPEAL from judgment of the District Court of Ratnapura.
G. S. Marapana, P.C. with Raja Peiris for plaintiff-respondent.
R. K. W. Gunasekera with Wijaya Tennekooon for 14th defendant-appellant.
18th defendant-appellant unrepresented.
Cur adv vult.
30th October, 1992.
In this case the plaintiff-respondent filed this action on 21.6.63 topartition a land called Paluwatta situated at Nivitigala. The finaldecree for partition of the land was entered on 24.10.71 in terms ofPartition Plan No. 864 dated 7.12.69 made by Surveyor M. W.Ratnayake.
According to this scheme of partition the plaintiff-respondent wasallotted lots 8 and 9 in the said plan. The plaintiff-respondent had topay certain amounts of money to various defendants including theappellants as compensation and owelty, while they in turn had to paycertain sums of money to the plaintiff-respondent (very probably aspro rata costs). After setting off these amounts the plaintiff-respondent had to pay to the 1st to 4th, 6th and 13th to 18thdefendants a sum of Rs. 96.05 as compensation and owelty whichwas deposited in court on 5.11.83.
Thereafter the plaintiff-respondent on 3.2.84 had-made anapplication for an order for the delivery of possession of the said lots8 and 9 (under section 52(1) of Partition Law, No. 21 of 1977).
Objections were filed by the 14th and 18th defendants-appellants.Thereafter an inquiry was held and after hearing submissions thelearned District Judge by his order dated 19.8.85 overruled theobjections and allowed the application for delivery of possession ofthe said lots.
The objections were based on section 337 of the Civil ProcedureCode (as amended by Act No. 53 of 1980) which prohibits anapplication for an execution of decree after the expiration of 10 yearsfrom the date of decree (subject to certain exceptions set out insection 337(1 )(b), which are not relevant for this appeal).
The learned District Judge relied on the proviso to section 52(1) ofthe Partition Law which provides that a party who is liable to pay anyamount as owelty and compensation for improvements shall not beentitled to obtain an order for delivery of possession' until suchamount is paid. Since owelty and compensation had been paid .only
on 9.11.83, he held that the plaintiff-respondent was entitled to obtainan order for delivery of possession.
From this order the 14th and 18th defendants-appellants have filedthis appeal and at the hearing only the 14th defendant-appellant wasrepresented by Mr. R. K. W. Gunasekera.
Mr. R. K. W. Gunasekera submitted that section 337 of the CivilProcedure Code (as amended) operates as a bar to this applicationas more than 10 years have elapsed from the date of final decree. Herelied on Section 77 of the Partition Law which reads as follows:-
“The provisions of the Civil Procedure Code relating to theexecution or service of writs, warrants and other processes ofcourt shall apply in relation to the execution or service of writs,warrants and other processes of court in a partition action.”
He also relied on section 79 of the Partition Law which provides asfollows for a casus omissus:-
“In any matter or question of procedure not provided for inthis Law, the procedure laid down in the Civil Procedure Code ina like matter or question shall be followed by the court, if suchprocedure is not inconsistent with the provision of this Law.”
Therefore he submitted that section 337 of the civil ProcedureCode (as amended) governs the matter.
However, it should be kept in mind that when the Legislature hasgiven its attention to a separate subject and made provision for it, thepresumption is that a subsequent general enactment is not intendedto interfere with the special provision unless it manifests that intentionvery clearly. This is expressed by the Latin maxim Generaliaspecialibus non-derogant (general words do not derogate from veryspecial provisions, or, special provisions will control generalprovisions).
In the case of Corporation of Blackpool v. Starr Estate CompanyLimipd,m Viscount Haldane stated-
“We are bound … to apply a rule of construction which hasbeen repeatedly laid down and is firmly established. It is that
wherever Parliament in an earlier statute has directed itsattention to an individual case and has made provision for itunambiguously, there arises a presumption that if in asubsequent statute the Legislature lays down a generalprinciple, that general principle is not to be taken as meant torip up what the Legislature had before provided for individually,unless an intention to do so is specially declared. A merelygeneral rule is not enough, even though by its terms it is statedso widely that it would, taken by itself, cover special cases ofthe kind I have referred to.”
Again in the well-known case of Seward v. Vera Cruz,m the Earl ofSelborne, L.C., stated as follows:-
“Now if anything be certain it is this that where there aregeneral words ip a later Act capable of reasonable and sensibleapplication without extending them to subjects specially dealtwith by earlier legislation, you are not to hold that earlier andspecial legislation indirectly repealed, altered, or derogatedfrom merely by force of such general words, without anyindication of a particular intention to do so.”
This Latin phrase has further been illustrated by the followingpassage in the book “Statutory Interpretation" by F. A. R. Bennion(1984 Edn.) at pages 378 and 379:-
"Clausula generalis non-referta ad expressa (General wordsare taken not to be intended to disturb express stipulations).
Generalia verba sunt generaliter intelligenda (General wordsare to be understood generally. It is not to be supposed that thedraftsman could have had in mind every possible combinationof circumstances which may chance to fall within the literalmeaning of general words).
Generalis clausula non porrigitur ad ea quae anteaspecialiter sunt comprehensa. (A general clause does notextend to things previously dealt with by special provision)."
In short where the literal meaning of a general .enactment covers asituation for which specific provision is made by another enactmentcontained in an earlier Act, it is presumed that the situation wasintended to continue to be dealt with by the specific provision ratherthan the later general one. Accordingly the earlier specific provisionis not treated as impliedly repealed.
Therefore section 337 of the Civil Procedure Code (as amended)does not in any way repeal, override or affect the provisions ofsection 52(1) of the Partition Law and the proviso thereto, becausethe latter is a special provision enacted by the Legislature in respectof partition decrees.
For the same reason, sections 77 and 79 of the Partition Law donot make the provisions of the Civil Procedure Code applicable in thematter as special provision is made in section 52(1) of the PartitionLaw and the proviso thereto.
Therefore on a consideration of the matter, section 337 of the CivilProcedure Code (as amended by Act No. 53 of 1980) does not over-ride the provisions of section 52(1) of the Partition Law which by itsproviso states that a party liable to pay any amount as owelty orcompensation for improvements shall not be entitled to obtain suchorder until that amount is paid.
The amount due as owelty and compensation from the plaintiff-respondent was paid only on 9.11.83. Therefore the plaintiff-respondent is entitled to obtain an order for delivery of possessiononly after that date. If the period of 10 years referred to in section 337of the Civil Procedure Code applies to applications under section52(1) of the Partition Law for delivery of possession, such period onlybegins to run from the date when owelty or compensation as orderedhas been paid. As this owelty or compensation had been paid on9.11.83, the period of 10 years had not elapsed when the applicationwas made for an order for delivery of possession.
Therefore l.hold that the plaintiff-respondent is entitled to obtain anorder for delivery of possession of the said lots 8 and 9 and the orderof the learned District Judge dated 19.8.85 is affirmed.
The appeal is dismissed with costs payable by the 14thdefendant-appellant to the plaintiff-respondent.
WEERASEKERA, J. – / agree.Appeal dismissed.
ABEYRATNE AND ANOTHER v. MANCHANAYAKE