129-NLR-NLR-V-48-CAROLIS-APPUHAMY-Appellant-and-PODI-NONA-et-al.-Respondents.pdf
DIAS J.—Carolis Appuhamy v. Podi Nona.
393
1947Present: Dias J
CAROLIS APPUHAMY, Appellant, and PODI NONA et al.7
Respondents.
S. C. 22—C. R. Gampaha, 3,355.
Execution—Land sold in execution of decree'—Obstruction to execution—Allegedirregularity of decree—Liability.
The fact that the decree entered in a case is irregular does not entitle aparty to obstruct execution of the decree. His proper remedy is anapplication to the Court for redress.
A
PPEAL from a judgment of the Commissioner of Requests,Gampaha.
E. B. Wikramanayake (with him T. B. Dissanayake), for the plaintiffappellant.
S. C. E. Rodrigo, for the defendants, respondents.
May 21. 1947. Dias J.—
The plaintiff, who was not a party, to the present proceedings, in C. R_Gampaha, No. 8,951, purchased at the fiscal sale held in execution of thedecree in that case, a certain land. In order to obtain a fiscal’s transferhe had to deposit the requisite fees for the survey. When the surveyor
394
Zackeriya v. Croos Raj Chandra
went to the land, William, the defendant, who is now dead and isrepresented by the first defendant, assisted by the other defendantsobstructed the surveyor and turned him out. Thereupon the plaintiffhad to incur further expenditure to get the land surveyed. He is nowclaiming that sum from the defendants as being direct damages flowingfrom the wrongful act committed by the defendants in obstructing thefiscal’s surveyor. The facts are not in dispute, but it is strongly arguedthat the conduct of the defendants in resisting the surveyor is not wrongfulbecause the decree in the case in which execution was issued was irregular.It has been held in the case of Appuhamy v. Thailamah and Wijeratne v.Mendis Appu" that even if a decree is later set aside for an irregularity,a bona fide purchaser at a fiscal sale under that decree would not beaffected. Granting that the proceedings which culminated in the decreefire irregular, there is clear authority for the proposition that William,instead of taking the law into his own hands by resisting the officer of theCourt, should have sought his remedy by applying to the Court for redress,fn the case of In re Molamure3 it was held that it is an established rulethat it is not open to any party to question the orders of the Court or anyprocess issued under the authority of the Court by disobedience. Thereis no act which the Court may do which may not be questioned in a properform and on a proper application. That principle was upheld in the latercase of Gnanamuttn v. Chairman, U. D. C., Bandarawela *.
The Commissioner of Requests seems to think that the conviction ofWilliam in the Magistrate’s Court for obstructing a public officer is bad.That may or may not be so and we are not concerned with it. I hold thatthese defendants by their wrongful act have caused direct loss to thisplaintiff and that, therefore, he is entitled to recover damages. I setaside the judgment appealed from and enter judgment for him as prayedfor with costs both here and below.
Appeal allotved.