( 439 )
plaint. It is now too late to object to jurisdiction. The Court ofBequests issued the writ. The Court issuing the writ is the properCourt to investigate all matters arising in the execution proceedings.There is no distinction between the rights of a holder of an order forpossession under section 287 and the holder of a decree forpossession under sections 325-328 (Silva v. de Mell). The words" in the same manner and with the like power ” in section 327 donot refer to questions of jurisdiction. Fernando v. Fernando2should not be followed. Such a procedure works great hardship.
N. E. Weerasooria, for defendant, respondent.—The objection tojurisdiction was taken as a preliminary issue. Section 77 of theCourts Ordinance alone confers jurisdiction on the Court of Bequests.There is no provision of the Civil Procedure Code expressly enlargingsuch jurisdiction. The Legislature could not have intended that aCourt of Bequests should .try the title to land over Es. 300 in value.The decision in Silva v. de Mel (supra) is in fact contrary to theviews expressed in the earlier case of Silva v. Silva 3. Sections 325 to328 clearly refer to decrees for possession under heads (B) and (C.)in Chapter XXII. of the Code. A Court which would consider suchan application would be the Court which passed the decree andtherefore a competent Court. The extension of the privileges ofsections 325 to 328 to a holder of an order for possession is wrong.Hence the difficulty. Silva v. de Mel (supra) has been decided■without reference to the conflict that arises if the order for possessionissued from a Court of Bequests. Had the point been taken the•decision may have been otherwise, especially in view of Silva v.SUva (supra).
,Tisseverasinghe, in reply.
April 1, 1930. Gabvin J.—•
In execution of a money decree entered in case No. 41,401 ofthe Court of Bequests of Colombo, premises bearing- No. 3 inUnion lane, Union place, were duly seized and sold. The purchaserobtained a Fiscal’s conveyance and was later granted an orderfor delivery of possession under section -287 of the Civil ProcedureCode. The Fiscal placed the purchaser in possession and is saidto have, dispossessed one Daniel Joseph, who petitioned the Courtpleading that he was in bona fide possession of the premises astenant of one Gnanakannu Nadar and praying to be restored topossession.
The Commissioner, after the inquiry contemplated by section328, directed that his plaint should bs numbered and registeredas a plaint in an action.- In .due course the matter came up fortrial, when a preliminary issue was raised as to' the jurisdiction
i (1915) 18 N. L. R. 164.3 (1923) 18 N. L. R. 360.
3 (1898) 3 N. L. R. 161.
Daniel t>.Rasiah
Gakvin J,
Daniel v.Raaiah
( 440 )
of the Court. The premises are admittedly ovej:~Bs. 800-*in valqe^The objection in short is that a Court of Bequests has no jurisdictionto entertain a petition under section 328 in any case in which aperson has by virtue of an order for delivery of possession undersection 287 been dispossessed of premises the value of which iaover Bs. 300.* •
The learned Commissioner upheld the objection and. thopetitioner appeals.
Sections 328 to 330 have for their object the protection andassistance of holders of decrees for possession and third partieswho have been dispossessed.*
Of these, sections 325 to 327 enable a decree holder who has byreason of resistance or obstruction to the q^ficer charged withthe execution of the writ failed to obtain possession to complainthereof M to the Court, and where such resistance or obstructionis found to have been caused by a person other than the judgment-debtor claiming in good faith to be in possession on his own accountor on account of some person other than .the judgment-debtor,the decree-holder by reason of the procedure laid down is able toobtain prompt investigation of the claim of the party resisting.
The language of these sections, it seems to me, plainly indicatesthe Court which issued the writ as the Court ,&> which complaintis to be made and which is required to investigate the claim ofthe party resisting where the resistance is offered by a bona fid aclaimant.
Similarly, the language of section 328 which deals with theconverse case of a person who haring been dispossessed seeks to berestored to possession, indicates that the Court to which applicationfor that purpose is to be made is the Court, which issued the writ,and that it is that Court which has to make a preliminaryexamination of the petitioner t,o ascertain whether there is probablecause for making the application, an.d if it decides in favour of thepetitioner, cause the petition to be “ numbered and registered ”as a plaint.
The language and scope of these sections strongly indicatethat all complaints of resistance as well as of wrongful dispossessionwere intended to be addressed to and investigated by the Courtwhich passed the decree under execution. There is nothing toindicate that either the investigation or both the complaint andthe investigation, were to be addressed to and entertained by any.other Coutfi.
These sections it is to be noticed are grouped together underthe head “ Besistance to Execution of Proprietary Decreesand section 325, the opening words of which govern the wholegroup of sections, indicate that they relate tip the execution ofdecrees for the possession of property under heads (B) and (C).
Inasmuch as a Court of Bequests can only entertain au actionfor the possession of property if that property does not exceedBs. 300 in value, Hie decrees it enters for possession of propertynecessarily can only refer to property which it must be assumeddoes not exceed Bs. 300 in value. The Court of Bequests whichhad jurisdiction over the original suit would have jurisdictionover the claim.
If the matter be . viewed from this standpoint, it becomes clearthat these sections were drawn upon the assumption that the Court| which passed the decree would entertain and investigate complaintsarising from the execution or the attempt to execute the decree,fyid that no question of jurisdiction pecuniary or local would orcould arise.
jj Property sold in execution very frequently exceeds in valuethe amount of the writ, and also the pecuniary limit set to thejurisdiction of the Court where the Court which issued the writhappens to be a Court of Bequests. Consequently, when theenforcement of an order for delivery of possession issued by such aCourt in favour of a purchaser of immovable property is followedby a complaint of wrongful dispossession, it must frequentlyhappen that the property in regard to which the complaint is madeexceeds in value the limit of the Court’s jurisdiction.
Apart entirely from the difficulty, if not impossibility, ofapplying these sections to a case such as this, it is difficult to believethat the Legislature could have intended, or even contemplated,that a complaint of resistance to or dispossession by officers chargedwith the execution of a decree ^or order made by a Court ofRequests would be investigated by a District Court or by a Courtof Bequests to the extent of the preliminary inquiry and thereafterbe numbered and registered as a plaint in the District Court andbeard and disposed of by that Court.
It is implicit in the language of these sections that all suchcomplaints will be investigated by the Court which issued thewrit, in as much as the Court which had jurisdiction to pass adecree for possession in the original suit would have jurisdictionover .the claim.
These sections do not contemplate a case such as the one underconsideration, because what the draftsman had in contemplationwas resistance or dispossession under decrees for possession, andnot the various cases which may arise in consequence of resistanceto or dispossession by an officer charged with the enforcementof an order for possession issued under section 287.
In the case of Silva v. Silva (supra), a Full Bench consisting ofBonser C.J., Lawrie J., and Withers J. held .that the provisionsof sections 325 and 326 were applicable to resistance or obstruction
( 442 )
1980- in the cases of a “ decree ” and not .to the case of' an order forGarvin j. possession under section 287.
Daniel v. This, if I may respectfully say so, is in accordance with theRaaiahconclusion at which I have arrived upon an examination of the-
language of this group of sections—that they do not contemplateresistance or dispossession in the case of an order for possessionunder section 287.
The law as declared and settled by this case was after an interval,of about 17 years disturbed by the judgment of another Full Benchconsisting of Wood Renton C.J., Shaw J., and de Sampayo J.The learned Judges purport to differentiate the case of Silva v.Silva (.supra). What they have done is to limit its applicationas an authoritative decision only for the proposition that for thepurposes of the punitive provisions of sections 325 and 326 thewords 41 decree for possession ” do not include orders for possessionunder section 287.
They claimed to be free to go upon their own view in regard toproceedings under section 328, aud held that that section wasapplicable to a case of dispossession whether under an order forpossession or under a decree for possession. The differentiationis a very fine one and gives no effect to the ratio decidendi in Silvav. Silva (supra), which was that the words “ decree for possession "in section 325 which appear to me to control the meaning of the- whole group of sections does not include an order for possession.Indeed, in the later case the Judges dissent from the reasons givenfor the decision in the earlier oase, and hold that the relevantprovisions of the Code relating to * enforcement of a decree forpossession including section 328 are made applicable to ordersfor possession by the second paragraph of section 287.
The resulting position is this : —
The punitive provisions of sections 325 and 326 are not availablewhere there has been resistance or obstruction to the officer chargedwith the enforcement of an order for possession.
The provisions of section 328 are applicable to the case of aperson who has been dispossessed by an officer purporting to actunder the authority of an order for possession under section 287.
Section 326 is not specially mentioned ; it is a little difficultto. see how it can be made applicable to the case of orders forpossession. The Court has no power to punish resistance insuch a case, and consequently a person who offers resistanceneed not submit his defence or explanation to the Court, Theseobservations apply also to section 330.
I am bound by the decision in Silva v. de Mel (supra), that .theprovisions of section 328 have been made applicable by section 287
( 443 )
to the case of an order for possession. But that judgment does notconsider the position which arises when the Court which issuedthe order for possession is a Court of Bequests and the land inrespect of which it is issued is over Bs. 300 in value, nor does it sayhow this section is to be applied in such a case.
If the Court of Bequests has jurisdiction to investigate theclaim of the party dispossessed irrespective of the value of the landno difficulty arises. If it is precluded from investigating the claimwhen the value of the property exceeds Bs. 300, the party dis-possessed. it seems to me, has no remedy under -section 328, andmust proceed by way of a regular action in a Court of competentjurisdiction.
The ordinary, jurisdiction of a Court is that which is assignedto it b.v the Courts Ordinance. Unless section 327 and the groupof sections of which it is one can reasonably be construed asgiving the Court of Bequests a special jurisdiction, it must beadmitted that a Court of Bequests has no jurisdiction to investigate, a petition under section 327 where the land is over Bs. 300 invalue.
In Fernando v. Fernando (supra), Schneider J. held that thesesections do not vest a Court of Bequests with any special or higherjurisdiction than that conferred by the Courts Ordinance. Aftercareful consideration I am driven to the same conclusion. It isimpossible to read into the language of these sections an intentionto enlarge the jurisdiction of Courts of Bequests, for the reasonthat they did not in my opinion contemplate the investigationby a Court of Bequests of a petition complaining of resistanceor dispossession, except in respect of a decree for possession enteredin a suit over which it had jurisdiction and consequently hadjurisdiction also over the claim.
I realize that in upholding this objection to the jurisdictionof the Court of Bequests I am compelling a person dispossessedof property by an officer purporting to be acting under theauthority of an order for possession to a separate action anddepriving him of the benefit of the summary – procedure forobtaining restoration to possession prescribed by section 328.But this is. the logical and necessary result of the judgment inSilva v. de Mel (supra). The remedy is in the hands of theLegislature, who alone can by appropriate amendments on thelines of the developments embodied in the Indian Code of CivilProcedure place our law upon a more satisfactory footing.
The appeal is dismissed with costs.
Gabvdt J.
Daniel v.Jiasiah
Appeal dismissed.