042-SLLR-SLLR-1982-2-ARIFF-v.-KANDASAMIPILLAI-OTHERS.pdf
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ARIFF
v.
KANDASAMIPILLAI & OTHERS
SUPREME COURT
WANASUNDERA. J.. WIMALARATNE. J.. AND VICTOR PERF.RA. J.
S.C. APPEAL NO. K7/KI.
C.A. NO. 1142/78.
D C. COLOMBO 2433/RE.
OCTOBER 4 and 15. 1982.
Execution – Civil Procedure Code, sections 125-328 . Difference of section 328petition from proceedings under ss. 325 – 327 – Conn's powers of revision – Rightof person not a party to proceedings against whom no order has been made toapply for revision.
The premises No. 7, Hospital Street, Colombo were owned by plaintiffs wifeand sister-in-law. Plaintiff was the landlord having rented out the premises toone Nadesan the defendant. The plaintiff also entered into a tenancy agreementwith Nadesan in 1961 and retained a sum of Rs. 1.000/- as deposit to be refundedon the termination of the- tenancy. This money had not been refunded at timeof trial. The defendant along with three others carried on in the premises inpartnership the business called’ Lctchmi Vilas. On 7.5.75 the defendant retiredfrom the partnership and left the premises. The rent for the premises was paid .by Kandasamipillai one of the partners and the 1st appellant from 1955 to 1973and from 1973 to date of his retirement the defendant paid rent on behalf ofKandasamipillai.
However, in terms of a consent decree defendant Nadesan agreed to vacate thepremises in August 1978. As he failed to do so Writ was executed by Fiscalwho stated that the defendant's son was in the premises that day carrying onbusiness as usual and that he surrendered possession on being shown the writon 21.8.78. On 23.8.78 the lst-4th appellants who were the partners filed apetition in the District Court in terms of, section 328 of the Civil Procedure Codealleging that they were the tenants and that they were wrongfully dispossessed.
The District Judge made order on 22.11.1978 directing that appellants be restoredto possession.
On 22.1.78 when the Fiscal proceeded to the premises to put the appellants inpossession he found one Ranjit Nanayakkara and B.G. Sugathapala in occupationand a name board 'Ratne Hotel’ fixed to the entrance of the premises. Neverthelessthe appellants were put in possession but on the next .day they were oOsted by.Nanayakkara and Sugathapala. On 27.1.78 the plaintiff who had earlier statedthat on ejecting the defendant Nadesan he handed over the premises to his wifeand sister-in-law's daughter filed application No. 1141/78 in the Court of Appealpraying that the order dated 22.11.78 be quashed. On 27.11.78 the petitioner-lstrespondent Sugathapala who was no party to the proceedings also filed actionNo. 1142/78 to have the order of 22.11.78 set aside. The Court of Appeal refusedapplication in No. 1141/78 but in 1142/78 acting in revision set aside the DistrictJudge's order. The plaintiff appealed to the Supreme Court against the order in1141/78 but the appeal was dismissed. The appellants .appealed ac.v'-.t V -/fder
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(1982) 2 S L R.
No. in No. 1142/78 and a preliminary question that was raised was whether itwas open to the Court of Appeal to exercise its powers of revision on theapplication of a person who was at no time a party to the action or againstwhom no order had been made by the original Court even during the course ofexecution proceedings.
Held –
Section 323 provides that when a decree or order is for the recovery ofimmovable property or if it directs a judgment – debtor to yield up or deliverpossession an application for execution shall be made in the prescribed form.The Court then has only to be satisfied that the judgment – creditor isentitled to obtain execution of the decree by being placed in possession.Once the court is so satisfied, it will issue the writ.
Sections 325-327 are confined to the execution of proprietary decrees whicha judgment creditor may invoke when there is resistance or obstruction to.execution or the judgment creditor is hindered (or ousted) from takingcomplete and effectual possession within a year and a day whereupon complaintmust be made to court within one month of the resistance, obstruction,hindrance or ouster. These sections have no bearing on section 328.
Section 328 provides for the investigation of a petition by any person otherthan a judgment-debtor or person in occupation under him, who seeks tobe put in or restored to possession. Such a person does not become ajudgment-creditor who applies for writ under section 323 and therefore cannotavail himself of the provisions of sections 325, 326 and 327. The Court isobliged to resrore him to possession of which he was deprived by the Fiscalin the execution of a decree which did not authorize his dispossession.
The petitioner in No. 1145/78 was not an aggrieved person entitled to invokethe revisionary powers of Court against an order under s.328.
The appellants were not entitled to invoke the provisions of sections 325-327when the Fiscal was prevented from enforcing the Order of Court undersection 328. The appellants! however were entitled to be restored to possession.
Cases referred to:
(» Atokortlt v. SmyaMiktn (1939) 41 N,L.A, 163
Ranasinghe v. Henry (1896) 1 N.L.R. .303
Perera v. Silva et. al. (1907) 2 A.C.R. 172
Appuhamy v. Weeratunga (1921) 23 N.L.R. 467
Velupillai v. Ponnambalam (1924) 2 Times Law. Reports 136
Zahir v. Charles Perera (1970) 73 N.L.R. 424
Sirinivasa Thero v. Sudassi Thero (1960) 63 N.L.R. 31
De Silva v. Bostic. '.'5 N L.P. 277
sc
743'
-Ariff v. KandasamipilLii ii Others {Victor /V,vr«. J,
(9) StfWi i. de Mel (1915)' IS N.L'.R. 164
APPEAL from judgment of the Court of Appeal.
Nimal Senanayake, S.A. with S. Mahenlhiran and Miss. S.-M. Srnuratnr dor !ihc
appellant.,,,,hi ..
K.N. Choksy, S.A. with N.S.A. Gunadlake; Harsha So:a;! Miss. I.R. RhjapnkSe,V. Thenasenathipathy and E.N. Fernanda for .the respondents.'•
( ur. adv. vult.
November 9, 1982, ;
VICTOR PERERA, J.
The petitioner-1st respondent in this case had filed a petition',da't£d'27th November1 1978 in the Court of Appeal seeking by Way'ofrevision to have an order dated 22nd November I97X made by theDistrict Court of Colombo in case No. 2433/RE in the course ofexecution proceedings under section 328 of the Civil Procedure Codeset aside.• u
The plaintiff-2nd respondent (hereinafter referred to as.the plaintiff)had filed the said action on the 10th February 1977 to have one. M.Nadesan, the defendant, ejected from the premises No. 7, HospitalStreet, Colombo, on the basis that the said defendant was his tenantof the premises an<j that the tenancy had been duly terminated onthe ground of arrears of rent. The said defendant had filed answerpleading that the 1st and 2nd petitioners-appellants (hereinafterreferred to as the appellants), two.others and he had been carryingon business of an eating house in partnership with the 1st appellantand others under the registered name of "Letchumi* Bhuwan". thatKandasamipillaf;' the 1st appellant had been paying the rent from1955 up to October 1973, that' thereafter he, the defendant, paidrent on behalf of the 1st appellant, that he retired from the partnershipon 7th' May 1975 dnd lh£t" he had since left the said premises.Notwithstanding this'defence that was set up. a consent motioh wasfiled on 19th December 1977 according to which the defendantconsented to judgment being entered in favour of the plaintiff forejectment‘(writ Of ejectment being issued only after 31st March 1978).Decree was accordingly entered without arrears of rent, damages andcosts. In August 1978 writ of execution was issued in terms of thedecree to the Fiscal. When the Fiscal, repaired to the premises the1st appellant’s son was present and business wa« being carried,rori
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Sri Lanka Law Reports
(m2) 2 S.L.R.
under the registered, business name of "Letchumi Bhawan”. At therequest of the Fiscal, this person removed his goods and left thepremises according to the Fiscal’s report dated 21st August 1978.
On the 23rd August 1978 the 1st to 4th appellants filed a petitionin the District Court in the said case No. 2433/RE in terms of section328 of the Civil Procedure Code alleging that they were the tenantsand that they had been wrongfully dispossessed from the said premisesin the execution of the decree. The plaintiff filed objections admittingthat tfTe 1st appellant had been his tenant and had been paying rentup to October 1973. He stated that after he obtained a decree againstNadesan, the defendant, in execution of the writ he got possessionon 21st August 1978 : He pleaded that, on that very date he handedover the premises to the owners, namely his wife and sister-in-law’sdaughter and that he had ceased to be the landlord..At the inquirythe plaintiff produced a tenancy agreement dated 1961 signed by the1st appellant with the plaintiff, according to which the plaintiff stillheld Rs.1000/- as an advance deposit of rent to .be refunded on thetermination of the tenancy. The plaintiff stated in evidence that thepremises were subsequently rented out by his wife and sister-in-law’sdaughter, the 3rd and 4th respondents, on the 22nd August 1978,though he did not disclose the name of the alleged tenant and alsostated that he had no interest in the premises thereafter. At theconclusion of the inquiry the Court held that the 1st to 4th appellantswere in actual occupation of the said premises without any interruptionon their own account as'the tenants when the Fiscal dispossessedthem on 21st August 1978. The District Court accordingly madeorder dated 22nd November 1978 directing that the appellants beput in possession of the premises in terms of section 328 of the CivilProcedure Code.
In pursuance o£ this order the Fiscal repaired to premises No. 7,'Hospital Street, Colombo, with the appellants on the 22nd November1978. According to the Report of the Fiscal (2R14), he saw a nameboard “Ratne Hotel” and found two persons, Ranjit Nanayakkaraand B.G. Sugathapala, the petitioner 1st respondent, in occupation.When the Fiscal explained the contents of the writ, the said personshad agreed to vacate the premises and removed all their belongingsexcept two large counters. At this stage one Samad Who' introducedhimself as an Attorney-at-law had interfered and had asserted thatthe petitioner-1st respondent had a right to stay in the premises,though no document whatsoever was produced. Thereafter' thfere hadbeen an assault and after the Police intervened the two counters
sc
1‘rtl'r i, I »
745
A riff r. KandasamipilUti Ot.hr n {l /.
were also removed. According to the Fiscal he handed over thepossession of the premises to the appellants. The petitioner-lstrespondent however maintains that he continued to remain in occupation.
On the next day, namely the 23rd November 1978, the Attorney-at-lawfor the appellants had filed a- motion in the District Court to theeffect that no sooner the Fiscal left they were dispossessed from thepremises and that they were thus prevented from taking effectualand complete possession of the premises, and moved that the Fiscalbe directed to put the appellants in possession. When the Fiswl wentto the premises on the 24th November 1978 he found the front doorclosed. He had repeatedly knocked on the door but there was no.answer from inside- On the 24th November 1978. the Court, onreceipt of this Report, directed the. Fiscal to break open the doorand give over possession to the appellants.
On 27th November 1978 before the Fiscal could carry out thedirections of Court, the plaintiff filed an application No. 1141/78 in. the Court of Appeal naming the appellants and the petitioner-lstrespondent and the alleged owners as respondents seeking in revisionto have the order dated 22nd November 1978 set aside and to havethe application made by the appellants to the District Court dismissed.This was curious conduct on the part of the plaintiff as accordingto him he had no interest whatsoever in the premises after 23rdAugust 1978. The Court of Appeal stayed the order for possessionpending the hearing of this application.
Qn the same date the petitioner-lst respondent who was no partyto the proceedings also filed an application No. 1142/78 in the Courtof Appeal to h?ve the identical order of the District Court dated22nd November 1978, set aside and for a dismissal of the applicationmade by the appellants to the District Court against the plaintiff.
The Court of Appeal had simultaneously taken up for hearing theapplication No. 1141/78 and the application No. 1142/78 and madetwo separate orders. In application No. 1141/78 the Court refusedthe application of the plaintiff and affirmed the order of the DistrictCourt dated 22nd November 1978. But in application 1142/78 theCourt of Appeal acting in revision set aside the very same order ofthe District Court, namely the order under section 328 directing theFiscal to put the appellants in possession. There was therefore noconsistency in the two orders made by the Court of Appeal inC.A.l 141/78 and in the present application 1142/78 and to say theleast, the order in the latter application was illogical. The plaintiff
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appealed to this Court against the order of the Court of Appeal inapplication 1141/78 and after hearing this Court dismissed the' appealwith costs.
The present appeal before us is the appeal of the appellants againstthe latter order of-the Court of Appeal in application 1142/78. Atthe argument of'Mhis appeal the question . that .was raised as apreliminary matter'Was, whether it was open to the Court of Appealto exercise its powers of revision on the application of a person whowas « no time a party to the action or against whom no order hadbeen1 made by-the original .Court even during the course 'of theexecution proceedings. …–*1•
Admittedly the petitioner-lst respondent was not a party'to" theproceedings in the District Court .and the order dated 22nd November1978 was made before the Court was made aware that the petitioner-lstrespondent was claiming to‘be inoccupation of the premises. It wasan order made under section 328 in a dispute between the appellantsand the plaintiff and in proceedings in which the petitioner-lstrespondent was not even disclosed..
It is therefore necessary to consider the powers of the Court ofAppeal in revision in a situation such as this. Article 138- {i) of theConstitution of the Democratic Socialist Republic of Sri Lanka (1978)provides that the Court of Appeal "shall have and exercise an appellatejurisdiction for the correction of all errors which shall be committedby a Court of first instance, tribunal or other institution and soleand exclusive cognizance by way of appeal, revision and restitutio inintegrum of all suits, actions, prosecutions and matters and thingswhich such Court of first instaiide, tribunal or "other institution maytake cognizance of. Section 7^3'of‘the Civil Procedure Code providesthat the Court may call for aiid examine the Record of any casewhether already tried or pendingtrial. for ‘the purpose of satisfyingitself as to the legality or propriety of any judgment or order passedtherein or as to the regularity of .the proceedings of such case andmay upon revision of.the case so brought before it pass any judgmentor make any order that might have been made had the case beenbrought before it in due course of appeal instead of by way of revision.
The powers of revision originally given to the then Supreme Courtwere 'by "sections 21 and 40 of the Courts Ordinance and by Section753 of the Civil Procedure Code. The exercise of these powers hadbeen considered in numerous cases. Thus in the case of Atukoralev. Samynathan (1) Soertsz, J. held that'the'powers are very"wide
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SCAriff v. Kandasamipillai & Others (Victor Perera, J.)747
and that clearly the Court had a right^o^jrpvise any order iji^de byan original Court, whether an appeal has 'been ,ta|ten .px, not. TheSupreme Court had exercised .this power when an order of a .DistrictCourt which is wrong ex facie, where there was n(o. .appeal availableto a party against the order jin the case of, Ranas'inghe y. Henry (2).In all these capes, the, power was exercised as it affected the .rightsof a party to . the action.. In the case of Perera v.. Silva.,# al (3),where the applicant had another remedy, in rejecting the applicationfor revision Hutchinson,. C.J. said, “I do not think that th&iRtryyerought to be exercised or that the Legislature could have , intendedthat it should be exercised, so as to give the right of appeal practicallyin every case large or small, simple or difficult”. However, theSupreme Court held that the discretionary remedy could be invokedon the application of a party when there are exceptional circumstanceswarranting an intervention of the Court. There too the'applicant wasa party to the action.
In the instant case, the petitioner-1st respondent, was not a partyto. the proceedings in the District Court nor was, any order, madeagainst him. Under these circumstances it was contended that hecould not be heard in a revision application. Mr. Choksy, SeniorAttorney-at-law for the appellant'j. however, contended that thepetitioner-lst respondent was ah' aggrieved"person and as such hewas entitled to make this' application. In support he cited the caseof Appuhamy v. Weeraturiga (4). In that case the petitioner for reliefwas not a party to the action:* The action was a partition action andthe decree entered in the case operated as a decree in rem whethera person was a party or not. Bertram,C.J. in that case stated as follows:
“We have to consider in the first instance whether it is opento us to exercise these powers on the application of an aggrievedperson not a party on record.' There seems to be no doubtthat we may exercise these powers on our own notion. If that. .is so, I think we can justly exercise them when an aggrievedperson brings to our notice-the fact that unless the decree- isamended-he will suffer injustice.’’
Having proceeded to examine , the- facts and -circumstances- in''that-case, the Court .-canie;-to the-conclusion that'it appeared that thedecree was at variance with i the intention in the judgment and -thatthe petitioner was-an aggrieved person in that the'judgment wouldadversely; affect his rights which he claimed through a person whohad claimed before the Surveyor and was not made a'party to'the
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partition action. The Supreme Court acting in revision remitted thecase .to the District Court to make the necessary amendments.Similarly in partition actions the Supreme Court had exercised itspowers of revision at the instance of persons who sought to interveneor persons.who should have been made parties but not had noticeof the action. As . these cases were partition actions the SupremeCourt had acted) ,on a liberal interpretation of section 48 of thePartition Act No. 16 of 1951. In all these partition actions theSupreme Court . . dealt, .with the applications on the basis that theapplicants were aggrieved persons whose rights would otherwise bewiped out by virtue of a decree in rem.
In the case of Vellupillai v. Ponnambalam (5), where the findingin a testamentary suit affected prejudicially the rights of a party toanother suit and where that party applied to the Supreme Court tohave the finding in the testamentary suit revised, it was held thathe, not being a party to the testamentary suit, could not maintainsuch an application. The case of Appuhamy v. Weeratunga (4) earlierreferred to was considered and differentiated. Ennis, J. stated as follows:
“In the present case a third party has applied to'agitate againsta matter which was properly decided in the testamentaryproceedings. To allow such an application would be to introducea principle which might affect decisions in testamentary suitsby hundreds of persons. It would seriously affect the finalityof the decision at the instance of parties who have a veryslight interest in the real subject of the decision. I wouldaccordingly refuse the application.”
I am therefore of the view that the petitioner-lst respondent wasnot an aggrieved person entitled to invoke the powers of revisionof the Court of Appeal as his claim if any was irrelevant to theinquiry tinder section 328.
However, Mr. Choksy for the petitioner-lst respondent claimedthat he was entiteld to this relief on the ground that there wereexceptional circumstances in this case as he contended that thepetitioner-lst respondent was in occupation as a tenant of the premisesfrom the 22nd August 1978 before the order was made by the DistrictCourt on the 22nd November 1978 and that he was entitled to beheard before he could be dispossessed by an order of the DistrictCourt. He also contended that a person who obtains an oTder.to beput in possession under section 328 of the Civil Procedure Codemust first invoke the provisions of sections 325 to 327 when there
.sc
Ariff v. Kandasamipillai & Others (Victor I'ercru. J.t
749
is resistance or obstruction. The Court of Appeal had accepted thesetwo contentions as grounds justifying its intervention by way ofrevision at the instance of the petitioner-1st respondent. The Courtof Appeal mis-directed itself in regard to these matters and I thereforepropose to examine these sections in detail.
Exceptional circumstances are taken into account in applicationsfor revision at the instance of parties entitled to make such applications.The Supreme Court has refused to allow its powers of revision tobe invoked by a person against whom an order had been jpadeexcept in the most exceptional circumstances. In the case of Zahirv. Charles Perera (6) where in consequence of resistance to theexecution of a proprietory decree an application was made by thejudgment-creditor'under section 325 of the Civil Procedure Code andwhere he was directed to be put in possession of the premises inquestion in terms of section 327A, the Supreme Court refused anapplication for revision as the affected party had an alternative remedyand as there were no exceptional circumstances. A fortiori a personlike the petitioner-lst respondent in the present case could not relyon any exceptional circumstances. ■*- i..
In regard to the applicability of sections 325 to 327 when proceedingshave been initiated under section 328, it will be necessary to examinethe provisions of these sections: more closely.
These sections when properly* analysed show that when proceedingsare initiated under section 325 relating to the execution of a decreethe District Court is empowered to make alternate orders in accordancewith findings of fact at the inquiry. The comprehensive amendmentsto sections 325, 326 and 327 effected by Laws Nos. 20 of 1977 and53 of 1980 have been intended by the Legislature to deal withsituations that arises in the execution Of writs for possession issuedin terms of decrees or orders entered under section 217 (c/commandinga person against whom there is a decree or order to yield uppossession of immovable property. Section 323 provides that whena decree or order is for the recovery of immovable property or ifit directs a judgment debtor to yield up or deliver possession anapplication for execution shall be made in the prescribed form.
When this application is made the Court has only to be satisfiedthat the judgment-creditor is entitled to obtain execution of thedecree by being placed in possession. Once the Court is satisfied inthis regard it shall direct the writ of execution to issue to the Fiscal.
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(1982) 2 S L R.
By the amendments Nos. 20..of 1977' and 53 of 1980, section 325was amended as.follows:.:>■< . -…-
Where in the execution of'&’debteC'for possession of immovableproperty –
(a) A Fiscal is resisted or obstructed by the judgment-debtoror any .other, person
; or
(b) when after: the Fiscal has delivered possession, -thejudgment-creditor is hindered or ousted by" thejudgment-debtor or any other person from taking completeand effect ual possession thereof i»VyY;' '.W'VltO
within a period of one year and a day th'^ jha^inf-cVedft'bV^lAa^at any time within a month of such reSiistdiifce;,' bt&tiftCttohTtiridranceor ouster complain to Court.u>iutJ Jf1 *
i.** * lit)fT'»LvII* fi-
On receipt of such a complaint the;|^urtKdir^^ ,the. .Fisca| to givepublic notice calling upon all1 j^rsjons claimingto be in possessionby virtue of any right or interert a^tQjpps^ession being
delivered to the judgihentkr^iior.'to n^t^ the^ ^iims to Court.Any claimant is obliged to set out his right or interest entitling himto the present possession-ofthe property1.':“tL>M" "!it:
Section ‘326 contemplates the inquiryinto t^e rompiaint and theclaim made, narrowing down the ambit'or scope of thie inquiry tothe matters thus placed before Court. The Couit has to determinewhether -•-' if »•'
the matters complained ofjveVe occasioned by thejudgment-debtor,'
whether the claim is frivolous or vexatious, or
"(i) that the Claim made if any has not been established.
The ,cqqaider§tion of .apy other matter becomes irrelevant. If theCourt is satisfied in regard to any. one of these matters, it shall byorder direct the judgment-creditor to be put or ‘restored to possessionand deal .with the judgment-debtor or other person as for contemptof Cotirt….
Section 327'provides‘that if the resistance is made by a bona fideclaimant, the Court will dismiss the petition of the judgment-creditor.
It is thus very clear that sections 325 , 326- and '327 as amendedare confined to the execution , of a proprietary decree ' which ajudgment-creditor may. or may not invoke,1' as-section '*325 at hisdiscretion is only permissive and not mandatory. They deal with the
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Ariff v. Kandasamipillai & Others (Victor Perera, J.)
751
execution of a decree at the instance of the decree holder who hasnot been able to get the full benefit of the decree in his favour.These sections have no bearing whatsoever on section 328.
Section 328 on the other hand as: amended, provides for theinvestigation of a petition by any person other than the judgment-debtoror person in occupation under him, if 'he is dispossessed of anyproperty, in execution of the decree complaining of his dispossession.At the end of the inquiry if the Court is satisfied that the persondispossessed was in possession of the premises on his'own afcountor on account of some person other than the judgment-debtor, theCourt shall direct the petitioner to be put in possession of the property.
It is clear from an analysis -of these^ provisions, that under section328 the Court is making an order independent of or even ignoringthe decree for ejectment already entered, treating the decree as ofno legal effect as against the petitioner who seeks the interventionof Court to be restored to the status quo. Such a petitioner doesnot become judgment-creditor who applies for a writ under section323. Such a person therefore could not avail himself of the provisionsof sections 325 , 326 and 327. The Court in making this order isobliged to restore such petitioner to possession which he was deprivedof by the Fiscal in the execution of a decree which did not authorizehis dispossession.
It is analogous to a situation where a plaintiff who obtains adeclaration of title to immovable property without at the same timealso obtaining a declaration of his right to the immediate possessionof tltat property against the party in possession, applies for andobtains a writ of possession. In the case of Sirinivasa Thero v. SudassiThero (7), the Supreme Court held that the person who was dispossessedin consequence of the execution of a writ in such a case was. entitled.to be restored to possession. The principles that were discussed, in,that case would apply with equal force here .where an order.was,made under section 328 on the basis that the petitioner. was notliable to be ejected. Under section 328 the Court is putting thepetitioner who was dispossessed in the position he would haveoccupied if the Fiscal had not wrongly dispossessed him in the'purported exercise of the writ issued by Court. The Court underthese circumstances is merely carrying out its inherent powers. •
16 -4
The order made by the District Court in this case under section328 on the 22nd November 1978 had to be enforced by Court andin doing so it was not ordering the execution of a decree at the
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instance of a decree holder. Such an order is similar to an ordermade under section 287 of the Civil Procedure Code, where a Courtorders the Fiscal to place a purchaser of a land sold in executionof a money decree. In such a case the person to be placed inpossession is not a decree holder. In the case' of De Silva v. Bastianet al (8) the Supreme Court after. examining several authorities citedbefore it, held that a purchaser who had been placed in possessionin teijns of an order under section 287 and was soon after dispossessedshould, be restored to possession. The Supreme Court endorsed theview expressed , by de Sampayo, J. in the Full Bench case of Silvav. de Mel (9) that the order for delivery of possession was to be“enforced” and not merely “executed”. In the present case theDistrict Court after a full inquiry into the relevant matters, wassatisfied that the petitioners-appellants were in occupation of thepremises on the relevant dates. Namely the date of the plaint, thedate of the decree and the 22nd August 1978 when they weredispossessed by the Fiscal and that their possession had to be restoredat all costs. Any other person dispossessed in the enforcement ofthis order will have to seek his remedy elsewhere.
Taking into consideration all these matters, I hold that thepetitioner-1st respondent was not a person entitled to invoke thepowers of the Court of Appeal to act in revision in respect of anorder made under section 328. I also hold that the appellants werenot entitled to invoke the provisions of sections 325, 326 and 327of the Civil Procedure "Code when the Fiscal is prevented fromenforcing an order made by Court under section 328 and that theyare entitled to be restored to possession.
I accordingly allow the appeal and set aside the order of the Courtof Appeal with costs payable by the petitioner-1st respondent to theappellants in this Court and in the Court of Appeal. The stay orderis set aside and the District Court is directed to enforce its orderdated 22nd November 1978 through the Fiscal forthwith.
WANASUNDERA, J. – I agree.
WIMALARATNE, J. – I agree.
Appeal allowed.