010-NLR-NLR-V-02-ABEYEDERE-v.-MARIKAR-et-al.pdf
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ABEYEDERE v. MARIKAR et al.D. C„ GaUe, 49,861.
1896.July 8.
Execution, purchaser in—Delivery of possession to him—Remedy whereproperty sold is in possession of third person claiming independenttide—Order for delivery of possession made irregularly—CivilProcedure Code, ss. 287, 290, 292, and 325.
Per Bonser, C.J.—(1) Under section 292 of the Civil ProcedureCoda, after a sale in execution is confirmed by the Court, f.nd aconveyance executed by the Fiscal, it is the duty of the Fiscalor the person in possession of the property sold to forthwith givepossession thereof to the purchaser. The duty of the Fiscal wouldonly arise if he were already in possession under section 290,and the duty of the other person in possession if h9 were the judg-ment-debtor or some person claiming under him by a title createdsubsequently to the seizure, or were holding on behalf of the judg-ment-debtor or such person.
If the person in possession on being applied to by thepurchaser to deliver possession declines to do so, the Court mavmake an order under section 287 for delivery of possession, providedthat such person is the judgmsnt-debtor or a person claiming underhim or holding on his behalf j but if such person claims the propertyby an independent title, the Courf will leave the purchaser to theremedy of an action rei vindicatio.
An order for delivery of possession under section 287 made exparte and unsupported by any evidence is irregular, and is not agood foundation for proceedings under section 325 and the followingsections.
Quaere, whether proceedings under section 325 and thefollowing sections can properly be said to be proceedings forenforcing a decree of possession.
Semble, that all that clause 2 of section 287 .means is that inexecuting an order for delivery of possession of premises to apurchaser in execution, the Fiscal may break open doors and useforce to expel persons found on the premises, as he may in theexecution of a writ of possession.
T
HE facts of the case sufficiently appear in the judgment ofBonser, C.J.
Sampayo, for appellant.
Domhorst and De Saram, for respondent.
8th July, 1895. Bonser, C.J.—
This is an appeal from an order of Mr. Moysey, Acting DistrictJudge of Galle.
The appellant purchased certain immovable property, to wit, a ■boutique, at a sale made by the Fiscal in execution of a mortgagedecree. The sale was confirmed and the property conveyed by
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1895.the Fiscal to the purchaser. "Under section 292 of the CivilProcedure
Julyj!.(jojjg ^as then the duty of the Fiscal or the person in possession
Boh3er,C.J. 0f the property to forthwith give possession to the purchaser.
This duty of the Fiscal would only arise if he were already inpossession under section 290. The duty of “ the person“ in possession ” oould only arise if he were the judgment-debtoror some person claiming under him by a title created sub-sequently to the seizure, or were holding on behalf of the-judgment-debtor or such person. If the person in possession on being appliedto by the purchaser to deliver possession declines to do so, theoourse to be taken by the purchaser will depend on theoircumstances. If the person in possession is the judgment-debtor or some other such person as before referred to, the purchasercan apply to the Court for an order under section 287, and the Court,on being satisfied that the case comes within that section, willmake an order for delivery of possession.
If, on the other hand, the person in possession claims the propertyby an independent title, the purchaser must resort to the remedyof an action rei vindicatio. If an order for delivery of possessionis made, that order may be enforced as an order falling under head(c), section 217, the purchaser being considered judgment-creditor(section 287). What this means I will discuss presently.
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In the present case it does not appear that the purchaser madeany application to the person in possession to be let into possessionof the property. . But he moved the Court for “ an order on the“ Fiscal of Galle to deliver quiet possession to him of the said“ boutique as provided for by section 287 of the Civil Procedure“ Code.” That motion was made ex parte, and was not supportedby any evidence either by affidavit or otherwise. Upon that motionan order was issued by the Court addressed to the Fiscal, which,after reciting the sale and purchase of the property, proceeded asfollows : “ And whereas the said boutique is in the possession of“ Allia Marcar Mahammadu of Kumbalwela, you are hereby ordered“ to put the said purchaser into possession of the said boutique, and,‘‘ if need be, to remove any person bound by the decree who may“ refuse to vacate the same.”. .
This order follows the form given in the schedule to the CivilProcedure Code, but what the words “ bound by the decree ” meanI have been unable to ascertain. The decree was a mortgagedecree, and the only persons bound by it would be the defendantsand their legal personal representatives after their death. Theyare not to be found in the corresponding section of the Indian Code,and probably were inserted by mistake.
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Armdd With this' order. the Fiscal’s officer and "the purchaserrepaired to the premises, and it appears by the return made toand ehdorsed on the order, by the Fiscal's officer that “ theindividuals, Allia Marcar Mahammadu of Kumbalwela and KaluwuMarcar Pawadu Marcar of Kumbalwela, resisted and obstructedthem in carrying out the order.” He does not return whether heobeyed the orders of the Court by putting the purchaser in posses-sion, or whether he was unable, in consequence of the resistanceor obstruption, to obey the order of the Court, or whether these,persons made any claim to the property.
. The return is defective and bad.
‘ The purchaser then filed a petition in the original suit, to whichthe original defendants and the persons alleged to have obstructedthe Fiscal’s officer were made respondents, and in which he prayed“ that in terms of section 287, paragraph 2, and section 325 et seq.
“ (sic) of the Civil Procedure Code, for (sic) an interlocutory order“ under, section 377 (6) appointing a day for the determination of“ the matter of the petition, for costs of this petition, and for such“ further and other relief in the premises as to this Court shall“ seem meet.”
It will be observed that there is no prayer for any order to bemade against the respondents. However, upon this petition theDistrict Judge ma<Je an interlocutory order, whereby, after stating“the petition praying for an order to the respondents to show“ cause why they should not deliver possession of the boutique to“ the petitioner by virtue of writ executed in the action of this“ Court, Np. 49,851,..had been read,” he appointed a day for thedetermination of the matter in the petition contained.
The petition, as we have seen, contained no such prayer.
Oh the appointed day the present respondents, who were thetwo persons alleged to have obstructed the Fiscal’s officer, appearedand called the District Judge’s attention to the fact that the orderfor delivery of possession was irregularly obtained.
The District Judge being of that opinion discharged the inter-locutory order with costs.
Against that discharge the purchaser now appeals.
' It was admitted by the appellant’s counsel that the order fordelivery was irregularly obtained, but it was urged that the Courtcould not go behind that order, but was bound to deal with thematter of the petition.
The order made "discharging the interlocutory, order wastechnically, incorrect: such an order was suitable to a case where.an order nisi under section 377 (a) had been made?- Where aninterlocutory order has been made under section 377 (b) the Court
1895.July 8.
Bonsbb, C.J.
1305.July 8.
Bdnseb, C.J.
I
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must> cither dismiss the petition or make such order 'within theprayer of the petition as it shall consider right (section^ 388).Considering the prayer of the present petition, it is difficult tosee what order could he made on it. But in substance the orderwas right, for the order for delivery having been irregularly obtainedwould not be a good foundation for proceeding under section325 and /the following sections. The District Judge ought alsoto have discharged the order for delivery, and we now dischargeit under the powers of revision given by section 753.‘
It is interesting to note that this boutique, whioh was sold forRs. 115, is stated by the petitioner in his petition to be worthRs. 1,500. This fact leads me to suspect that the purchaser knew.all along that he was purchasing property which was barn fideclaimed by the present respondents, and that his omission to hiean affidavit in support of his motion was not accidental but inten-tional.
But I doubt whether the proceedings under section 325 andfollowing sections can properly be said to be proceedings forenforcing a decree of possession; for they may be taken in caseswhere the judgment-creditor has obtained possession, and theycontemplate the punishment of an unsuccessful resistance unlikethe corresponding sections of the Indian Code from which theywere bprrowed, under which it js only continuing resistance thatis punishable. The procedure of section 325, &c., is not expresslymade applicable to the case of a purchaser under an execution bythe second clause of section 287.
It is difficult to give any intelligible meaning to that clause, forif it is to be construed literally it would mean that the purchaserhaving obtained an order for delivery must begin afresh and applyto the Court for leave to execute that order and get a writ ofpossession issued in form No. 63 of the schedule. This canhardly have been intended.
Perhaps all that it means is that the Fiscal may break opendoors and use force to expel persons found on the premises, as hemay in execution of a writ of possession.
However, it is unnecessary to decide this point.,
The appeal will be dismissed with costs.
Bhowne, A.P.J.—
I agree in holding that the proper order for the District Judgeto have made was to dismiss the petition, and in supplementinghis order by that my Lord proposes to make by way of revision.As to the construction of so much of sections 287 and 325 as are
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additions to sections 318 and 328 of the Indian' Code, it wouldseem advisable to note them for reconsideration at any amend-ment of the Civil Procedure Code, more especially as it has beenheld (1 8. G. R. 257) that when the additional contingency ofhindrance to the judgment-creditor was added to section 325no penal provision therefore was enacted. It may be the proce-dure directed in section 287 was intended to be somewhat analogousto that supplemental to the original decree directed by section 321,and that all these might be much simplified in procedure.
1805.July 8.
Bbowot:,
A.P.J.