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Present : Fisher C.J. and Akbar J.
ALLIS APPU v. ANDEESON.234—D. C. (Inty.) Galle, 18,378.
Writ of possession—Purchaser of property under mortgage decree—Right to delivery of .possession—Defendant in mortgage action.
An order lor delivery of possession under section 287 of the’Civil Procedure Code cannot be made in favour of a purchaser ofproperty sold under a mortgage decree except as against a defendantin the mortgage action.
PPEAL from an order of the District Judge of Galle allowinga writ of possession against the appellant. The respondent,
who purchased the property, in question under a mortgage decreeentered under section 201 of the Civil Procedure Code, movedthe Court for an order for delivery of possession. The appellantclaimed the property under a Fiscal’s conveyance. After inquirythe learned District Judge allowed the writ.
N. E. Weerasooria, for appellant.—An application for deliveryof possession under section 287 of the Civil Procedure Codecan follow only a sale by the, Fiscal held upon a writ issuedunder section 226. The present application is irregular as . thesale through which the petitioner-respondent derives his title wasone under a mortgage decree entered in terms of section 201 of theCode.
Counsel cited Fernando et al. v. Cadiravelu..1
V. Banawake, for petitioner, respondent.—The fact that thesale in- question was not a Fiscal’s sale should not deprive the Courtof its inherent power to give due effect to an order to sell issued
Counsel cited Abeyaratna v. Perera.2
» 28 N. L. R. 492.
• (1912) 15 N. L. R. 347.
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February 26, 1980. Akbar J.—
This appeal is on a point of law against the order of the DistrictJudge allowing writ of possession against the appellant in respect ofa certain property. The respondent to this appeal purchased thisproperty under a mortgage decree dated November 18, 1921,entered under section 201 of the Civil Procedure Code. Therespondent obtained a conveyance from the Secretary of the DistrictCourt on August 27, 1922, but after making an attempt to getpossession of the property on May 24, 1924, he took no furthersteps till February 6, 1929, when he moved the Court for an orderfor delivery of possession, of the property. On April 8, 1929,the Fiscal reported, according to the journal entries, that theappellant refused to give up possession and that he produced Fiscal’stransfer No. 13,699 in his favour*. On this report, after certainpreliminary steps, the District Judge inquired into this matteron October 8, 1929. and as a result of the inquiry the DistrictJudge allowed a writ of possession to issue against the appellant,who was also condemned to pay the costs. The appeal is from thisorder. It will be noticed that the respondent was not a purchaserat a Fiscal’s sale, the sale being under a mortgage decree enteredunder section 201 of the Civil Procedure Code. The DistrictCourt had, therefore, no authority to issue a writ under section 287of the Civil Procedure Code, which only applies to a Fiscal’s sale ona writ issued under section 225 of the Civil Procedure Code. Mr.Ranawake, however, for the respondent, cited the case of Abeyaratnav. Perera 1 in support of his argument that the Court has an inherentpower to direct delivery of possession to the purchaser purchasingunder a sale held under section 201 of the Civil Procedure Code torender the sale effectual. It will, however, be seen from the judg-ment of Wood Renton J. that he was careful to point out thatdelivery of possession could only be allowed as against the defendantin a mortgage action, who in contempt of the powers of the Courtremains in possession of the property. The following extract makesthis quite clear: “ I would set aside the order under appeal andsend the case back to the District Court for the purpose of thedefendant being noticed to show cause, if he has any to show, why theappellant should not be put in possession of the property purchased.”
In this case the appellant was not a party to the original mortgageaction and has apparently been in possession for a considerable' number of years. The case referred to above came up for consider-ation in a later case before the Full Bench, nameiy, Fernando v.Cadiravelu.2 The remarks of Garvin J., at page 499,. clearly showthat he was averse to the extension of the principle enunciatedin Abeyaratna v. Perera (supra) to any person who was not adefendant in the mortgage action. For these reasons I am of1 (1912) U N. L. R. 347.2 28 N. L. R. 492.
A Uia Appuv.
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opinion that the judgment of the District Judge was wrong, andthat the appeal should be allowed with costs in both Courts andthe writ stayed.
Fisher C.J.—I agree.