Haripala & Others Vs Matlika Fernando and.Others
HARIPALA AND OTHERSVSMALLIKA FERNANDO AND OTHERSCOURT OF APPEALAMARATUNGA, J„
A. REV. 1723/2002
C. ELPITIYA553/LOCTOBER 21, 2003 ANDMARCH 1 AND 24,2004
Civil Procedure Code, sections 14A. 32, 321 (2), .325 (4) 326, 32f, 328 and 839- Fiscal resisted by four persons – Application under section 325 filed – Oneperson died – Is substitution permitted – What is his remedy ?
If a person who has resisted the fiscal dies before the inquiry, theresistence is at an end. A party who has not resisted cannot besubstituted for the person who resisted simply on the ground that heis an heir of the person who offered resistance.
Per Amaratunga, J.
"Absence of any provision for substitution in a 325 inquiry is not alacuna which is to be remedied by having recourse to sections 839 -section 839 has no application,
His remedy is a regular action to establish his right to the propertyderived through his ancestor.
APPLICATION in revision from an Order of the District Court of Elpitiya.
Case referred to :
1 .Jinasena vs Vithanage – Bar Association Law Journal Reports – (1994) Vol. VPart II page 56
S. Mandaleswaran with P. Peramunagama and Indika Kalingawansa forpetitioners
N.R. M. Daluwatte P. C. with Gaithride Sih/e for plantiff- petitioner – respondent.
Cur. adv. vult.
Sri Lanka Law Reports
(2005) 1 Sri L. R.
July 6, 2004
GAMINIAMARATUNGA, J.When this revision application came up before me for argument, bothparties moved to file written submissions and invited me to decide thisapplication on the written submissions filed by them. Thereafter, both partieshave filed their written submissions and I proceed to pronounce judgementhaving considered the written submissions.
The facts relating to this case are as follows. When the fiscal went toexecute the writ of possession relating to the plaintiffs action, (where theplaintiff was the successful party in the District Court, the Court of Appealand in the Supreme Court), the fiscal was resisted by four persons. Theplaintiff respondent then made an application under section 325 of the CivilProcedure Code, making those persons, the 2nd, 3rd, 4th and 5threspondents respectively. Thereafter, those four respondents filed theirjoint written statement of claim in terms of section 325(4). Thereafter, the2nd respondent, Leelaratna Fernando died. The 3rd, 4th and the 5threspondents, who are the present petitioners, then sought to substitutethe deceased 2nd respondent's son in his place. The plaintiff objected tothis. Thereafter, the learned District Judge, having considered thesubmissions made by the parties, made order refusing the application toeffect substitution. This application is against that order.
There is no specific provision dealing with substitution in the course ofan investigation and inquiry under sections 325 and 326 of the CivilProcedure Code. In the written submissions filed on behalf of the petitioners,it is stated that such substitution is possible under section 14A of the CivilProcedure Code. That section sets out the manner in which an actionmay be instituted in a situation where a person against whom the right toany relief is alleged to exist is dead and the right to sue for such reliefsurvives. This section provides the manner in which the person who isentitled to claim relief against the deceased person could institute anaction to get the relief he could have got from the deceased person, hadthe latter remained alive. The petitioners' position is that section 14A permitssubstitution. Is this position correct in law?
Haripala & Others Vs Mallika Fernando and'Others
The task of the fiscal in executing a writ issued under section 323 of theCode is to deliver possession of the property described in the writ issuedto him. When an application is made to Court under section 325(2) forresisting the fiscal, any person, claiming to be in possession of the propertyrelevant to the writ may file his claim setting out his right or interest entitlinghim to be in possession of the property. Under section 326, what a Courthas to decide is the claimant's right to possess the land in question,independently of the judgement debtor. The only question to be decided isthe right to possession of the person offering resistance, and whethersuch right is one derived otherwise than from a right derived from or claimedthrough the judgement debtor. The concept running through sections 325,326,327 and 328 is the right to possession and not the title of the personresisting execution of the writ. In terms of section 326, if the Court findsthat resistance was occasioned by a judgment debtor or by some personat his instigation or on his behalf or, that the claim of the person offeringresistance is not in good faith or that the claim has not been established,the order to be made is a direction to put the judgment creditor inpossession. On the other hand if the claim of the person resisting isaccepted, the Court's task is to dismiss the petition of the judgementcreditor.
Under sections 326, 327 and 328 the Court's decision does not havethe effect of a decree in a regular action. A person dissatisfied with adecision given under those sections has the right to institute a regularaction to establish his right or title. Thus, the whole object of sections 325to 328 is not to make execution proceedings a second regular action todecide the question of title between the judgment creditor and the claimantbut to make a summary inquiry necessary to decide the right to possessin so far as it is necessary for the smooth flow of execution proceedings.The absence of provisions for substitution in execution proceedings andthe time limit of sixty days set out in section 325 (4) highlight the summarynature of the proceedings commenced under section 325 (1) and (2). Theprovisions of section 329 which keeps open a dissatisfied party's right toinstitute an action to establish his right or title to the property in questionalso indicates that substitution of heirs is not contemplated under thoseprovisions.
If a person who has resisted the fiscal dies before the inquiry, theresistance is at an end. A party who has not resisted cannot be substituted
Sri Lanka Law Reports
(2005) 1 Sri L. R.
for the person who resisted simply on the ground that he is an heir of theperson who offered resistance. His remedy is a regular action to establishhis right to the property derived through his ancestor.
Thus, the son of the deceased 2nd respondent is not without a remedyeven though his Substitution is not allowed in an inquiry under section325. Therefore, the absence of any provision for substitution in 325 inquiriesis not a lacuna which is to be remedied by having recourse to section839. Accordingly, section 839 has no application.
Section 14A which caters to a different situation, namely, the death ofa person before an action is instituted to obtain relief which a person isentitled to against the deceased person also cannot be used in the presentsituation.
To sum up, the position is that the heir of a person who has offeredresistance to fiscal on his alleged independent right has no locus standi tobe substituted in an inquiry under section 325 of the Code. See Jinasenavs Vithanage^ and the case cited therein in relation to an applicationunder section 328 of the Code.
It also appears from the claim filed by the deceased 2nd respondent,that the 3rd, 4th and 5th respondents who are the petitioners in thisapplication were in possession of the property on behalf of the deceased2nd respondent. Thus, they can, without substituting his heir establishthe right the 2nd respondent had to possess the relevant land.
For those reasons I uphold the order of the learned District Judge dated12.09.2002 and dismiss the application with costs in a sum of Rs. 5,000payable to the plaintiff-respondent.
HARIPALA AND OTHERS vs. MALLIKA FERNANDO AND OTHERS