119-NLR-NLR-V-61-JAYASEKERA-et-al-Appellants-and-UVAIS-Respondent.pdf
Jayasekera v. TJvais
479
I960Present: H. N. G. Fernando, J.JAYASEKERA et ol., Appellants, and UVAIS, Respondent8. G. 82—G. R. Colombo, 47168
Execution of 'proprietary decree—Resistance thereto—Persons who may he punished—Civil Procedure Code, ss. 325, 326.
Section 326 of the Civil Procedure Code authorises a committal to jail of noother person than the actual resistor or obstructor whether he be the judgment-debtor or some other person instigated by him.
A
/APPEAL from an order of the Court of Requests, Colombo.
E. B. Wikramanayake, Q.G., with V. ThiUainathan and V. Arulambdla/m,for 1st to 3rd Respondents – Appellants.
T. Sameratmc&reme, for Plaintiff-Respondent.
2 {1940) 67 Lloyds Law Reports.
480
M. 2Sf. G. 'FERITAjSrDO, J.—Jayaaehera v. TJvais
January 22, 1960. H. N. G. I eenasdo, J.—
This is an appeal against an order dated 27th. August 1957 by whichthe Commissioner of [Requests directed that the three appellants becommitted to jail for a period of BO days underTSectioh 326 of the Code.The learned Commissioner in the same order directed that a writ ofpossession should issue as against the three Respondents-Appellants andthat the plaintiff be placed in possession. This farther direction is notthe subject of this appeal and will therefore be unaffected by my decisionthereon.
The order committing the three appellants to jail was made withoutany inquiry being held and in the absence of the three appellants, pre-sumably on the footing that the affidavits and journal entries and theFiscaTs report would be sufficient to authorise the making of an orderunder Section 326.1 doubt whether such a procedure satisfies the
requirements of the section which refers to the hearing of the matter on apetition or a complaint made under Section 325, but in the present caseI do not have to lecide that question. On the 10th of April 1957 theproctor for the plaintiff filed a petition referring to the entry of a decreein his favour and to the issue of a writ. Four persons were namedrespondents and the first three named are the three appellants. Inparagraph 6 of the petition it was stated that the first, second and thirdrespondents (and the appellants) were not there but that the 4th res-pondent obstructed the Fiscal Officer and in paragraph 7 it is stated thatthe obstruction of the 4th respondent was occasioned by the instigationby the first, second and third respondents. The affidavit attached to thepetition also contains an allegation that the fourth respondent obstructedbut that the first, second and third respondents were not there.
In my opinion the power conferred by Section 326 is to commit to jailthe judgment debtor if he occasioned an obstruction of the fiscal or anyother person who occasions the obstruction or resistance at the instigationof the judgment debtor. Considering that the section is a penal one Ido not feel disposed to give to the word “ occasioned ” any greaterimportance other than that of “ caused ” or “ done ” or in other wordsthe section only authorises a committal to jail of the actual resistor orobstructor whether he be the judgment debtor or some other personinstigated by him. I therefore set aside that part of the order of 27thof August 1957 whieh directs that the three appellants be committed tojail. Appellants will he entitled to costs of this appeal.
Appeal allowed.