053-NLR-NLR-V-69-C.-Y.-S.-PERERA-and-another-Appellants-and-V.-THILLAIRAJAH-and-another-Respo.pdf
SIRIMANE, J.—Perera v. ThUlairajah
237
Present: Sirimane, J., and Alles, J.
C. Y. S. PERERA and another, Appellants, andV. THILLAIRAJAH and another, Respondents
S. C. 20-21 of 1966ID. C. Special—D. C. Colombo, 928jZL
Execution of proprietary decree—Resistance by a person making a frivolous or vexa-tious claim—Order made against him for delivery of possession—Procedure forenforcing it—Civil Procedure Code, ss. 5, 325, 326, 327A, 328, 329.
An order for delivery of possession made under section 327A of the CivilProcedure Code against a person who resists execution of a proprietary decreeby making a frivolous or vexatious claim can be enforced against him in themanner prescribed by sections 325 and 320 if he persists in defying the order.
•A.PPEAL from a judgment of the District Court, Colombo.
H. Rodrigo, for the 2nd and 3rd Respondents-Appellants.
S. Sharvananda, for the Plaintiffs-Respondents.
Cur. adv. vuU.
October 7,1966. Sibxmani:, J.—
The appellants had resisted the execution of a decree for the recoveryof possession of immovable property, and an order had been madeagainst them Tinder section 327 (a) of the Civil Procedure Code. Whenthe Fiscal tried to execute the decree, by placing the judgment-creditorin possession, as directed by that order, the appellants resisted himagain.
When they were brought up before Court a second time on proceedingsinitiated by the judgment-creditor under section 325, they took up theposition in the lower Court that they could not be dealt with undersection 326 because they were not “judgment-debtors”. This positionis clearly untenable as section 5 of the Civil Procedure Code enacts that“ judgment-debtor” means any person against whom a decree or ordercapable of execution has been made ”.
The learned District Judge rightly rejected this contention and dealtwith the appellants under section 326, by committing them to jail for30 days.
In appeal it was argued that there was a distinction between “ Order ”and “Decree ”, and that sections 325 and 326 applied only to “ Decrees ”,and not “Orders”, and much reliance was placed on the case ofDe Silva v. De Silva1. In that case the order was one for deliveryof possession to a purchaser at a Fiscal’s sale, and not for execution of a1 (1898) 3 N. L. R. 161.
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SIRIMANE, J.—Perera v. Thillairajah
decree. In such cases the claim of the person resisting is not examinedbefore an order for the delivery of possession is made. Here, the rightsclaimed by the appellants were investigated and found to be frivolousand vexatious. There is a clear distinction between an order for deliveryof possession to a purchaser under section 287 and an order to theFiscal under section 327 (a) to execute a decree, after a claim has beeninvestigated and found to be frivolous.
In drawing this distinction between an “ Order” and a ‘"Decree1’,Counsel for the appellants pointed out that by section 329 orders undersections 327 and 328 were equated to a decree in a regular action, butthat there was no similar provision in regard to an order under section327 (a). But, I do not think that this matter affects the question involvedhere at all. One can see several reasons why it was necessary to regardfinal orders under sections 327 and 328 as decrees, e.g., a person dis-possessed of property who succeeded in his claim under section 328would have to execute that order as a decree to get back possession.Or again in order to give finality to a decision between a judgment-creditor and a bona fide claimant in possession, it would be necessaryto look upon the order under section 327 as a decree in a regular action.
These considerations do not arise in an order to the Fiscal undersection 327 (a) to execute the decree. This is not a final order, for theclaimant whose claim has been rejected as frivolous may (under theprovisions of the same section) canvass that order by instituting anaction within a month.
In regard to the distinction between" Order’’and “ Decree”, it is note-worthy that in the case of De Silva v. De Mel ’, where De Silva v. DeSilva (supra) was considered, De Sampayo, J. pointed out that section323 provides for the application for execution of a decree or order forthe recovery of immovable property, and thereafter the word “ Order ”disappeared altogether. With reference to sections 323 to 330, thelearned Judge said, “ I cannot resist the conclusion that in these sections‘‘ Order ” is synonymous with “ Decree ” for otherwise there would beno provision in the Code at all for enforcing an order for delivery ofpossession as distinguished from a decree ”. I am in respectful agreementwith that observation.
In regard to orders under section 327(a) (which was enacted after
these decisions) I think the correct position is : that where such an orderis made, a person whose claim has been rejected, is (for the purposes ofexecution) placed in the same position as the judgment-debtor in theoriginal decree, the execution of which he prevented by his frivolous orvexatious claim. The Court, therefore, orders the original decree to beexecuted against the claimant as well.
An examination of sections 325 to 330 clearly show that they wereintended to empower the Court to grant a judgment-creditor the fruitsof the decree he has obtained, in the same action, without resorting tofurther litigation.
1 {1915) 18 N. L. R. 164.
ALLES, J.—Percra v. Thillairajah
239
I find it impossible to subscribe to the view advanced by learned Counselfor the appellants that the Court having made an order under section327 (a) is powerless to enforce that order if the persons against whomit was made persist in defying it.
The appeal is dismissed with costs.
Alles, J.—
I have had the advantage of reading the order proposed by my brotherSiriniane J. and I am in entire agreement with his observations.
It lias been submitted by Counsel for the respondent-appellants thatin as much as the Court has only power to make an ‘ order ’ under section327A, the Court has no poweT to proceed under Sections 325 and 326 of theCivil Procedure Code, which only deal with resistance to the executionof ‘ decrees ’. If the contention of Counsel is entitled to succeed, it wouldmean that the appropriate procedure to be adopted in such a case isthe institution of criminal proceedings in a Magistrate’s Court. Sucha course would result in the provisions of the Code with regard to resistanceto the execution of proprietary decrees being rendered ineffective. Sec-tions 325 to 330 of the Code were specially designed to enable a judgment-creditor to reap the fruits of a decree successfully obtained with the leastpossible delay. In Silva v. Be Mel1 Do Sampayo J. said ‘ that the wholescheme of the ProccdureCode i s to provide speedy and inexpensive remediesand it appears only reasonable to allow disputes arising from the executionof an order for possession in favour of a purchaser at a Fiscal’s sale to beinquired into and settled by the means provided in Section 328 insteadof driving parties to a separate action ’. The learned Judge made theseobservations, with -which I am in respectful agreement, in connectionwith an order for delivery of possession under Section 287 of the Codeand before Section 327A found a place in the Statute Book, but it seemsto me that, having regard to the scheme of the Code, this observationwould apply with equal force to an ‘ order ’ made under Section 327A.This Section was apparently introduced into the Code to extend the scopeof the procedure available to a successful judgment-creditor to deal withthe resistance to the execution of decrees, not only by the judgment-debtor and persons claiming under him, but also third persons who makefrivolous and vexatious claims to defeat his rights. Again De Sampayo J.observed in the later case of Suppramanium Chelty v. Jayauiardene a, wherethe District Judge erroneously refused to exercise the powers of the Courtunder Section 325 in favour of a successful execution-purchaser or eventhe inherent powers of the Court in respect of a party who obstructedthe execution of the Court’s own orders :—•
‘ This is a very narrow view of the Court’s duty and power. I think
the form of the application is quite sufficient to enable the District
Judge whatever power he has in regard to the matter. ’
1 (7915) IS N. L. R. 16i at 167.
* (1922) 24 N. L. R. 50 at 53.
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ALLES, JT.—Perera v. ThiUairajah
The reason for not equating an ‘ order ’ under Section 327A to a ‘ decree ’is obvious in view of the provision in the latter part of that section whichenables a person against whom an order is made under the section toinstitute proceedings to establish his right to possession in the propertywithin a month of such order. Such a person becomes a judgment-debtor within the meaning of that word in the Code and consequentlySections 325 and 326 would be applicable to him.
The respondents’ appeal is dismissed with costs.
Appeal dismissed.