KOCH J.—de Silva v. Bastion.
1936Present: Koch J. and Soertsz A.J.
DE SILVA v. BASTIAN et al.
77—D. C. (Inty.) Galle, 32,771.
Writ of possession—Decree-holder placed in possession by fiscal—Ouster byjudgment-debtor—Power of Court to restore writ-holder—CivilProcedure Code, ss. 287 and 325.
Where the holder of a decree for land was placed in possession by thefiscal under a writ of possession and was soon after dispossessed by thejudgment-debtor,—
Held, that the Court had power under section 287 of the Civil ProcedureCode to cause the writ-holder to be restored to possession.
Silva v. de Mel (18 N. L. it. 164) followed, Pereira v. Aboothahir(37 N. L. R. 163) referred to.
^ PPEAL from an order of the District Judge of Galle.
A. Rajapakse (with him R. C. Fonseka), for defendants, appellants.Colvin R. de Silva, for plaintiff-respondent.
April 8, 1936. Koch J.—
A point of importance and interest and also of difficulty arises on thisappeal. A judgment-creditor, under decree declaring him entitled to acertain land, applied for and obtained a writ of possession. The fiscalplaced him in possession of these premises on February 28, 1935. Withinhalf an hour the judgment-creditor was turned out by the judgment-debtors who were waiting outside the boundary till the fiscal’s officertook his departure. The judgment-creditor thereafter on April 3 made anapplication to Court for a reissue of the writ of possession. This wasopposed by the judgment-debtors and inquiry was fixed for April 11.On that day Counsel for the judgment-creditor and the judgment-debtorswere heard, and the learned District Judge reserved order for April 16.The points taken by the judgment-debtors were (1) as the fiscal had on
KOCH J.—de Silva v. Bastian.
February 28 placed the judgment-creditor in possession, the writ ofpossession under which this, took place, it was argued, was duly executedand an application for a reissue of it was therefore bad and must fail.
The only remedy, if any, was under section 325 of the Civil ProcedureCode, and the application not having been made within one month of 'thedispossession was out of order and should therefore be disallowed. Thelearned District Judge made order on April 16 in favour of the plaintiff.The appeal is from that order.
Now, if the present application is treated as one that can only be madeunder section 325 of the Cilvil Procedure Code, the second point mustnecessarily prove successful, and so far as the first point is concerned areal difficulty will arise. This difficulty is the outcome of a pronounce-ment of Garvin J. (with which Maartensz J. has agreed) in the case ofPereira v. Aboothahir1. The learned Judges in that case decided thatwhat was intended in section 325 was to give relief in such cases onlywhere the fiscal had delivered possession to the judgment-creditor buthad not delivered complete and effectual possession of every part of theproperty. This decision would appear to be in conflict with Kumarihamy■v. Banda ‘—a decision of two Judges who followed the ruling in Menika■v. Hamy ‘—and with Mohamed Lebbe v. Ahamedu Lebbe'. Briefly put, thepoint decided in these cases was that although the fiscal had placed thejudgment-creditor in possession of the property named and describedin the writ, the section applied if the judgment-creditor immediately orshortly after was turned out by the judgment-debtor, or by someone actingunder his instigation. The fine distinction drawn by Garvin J. does notseem to have been appreciated by the learned Judges who decided thesecases. It is not necessary for us to say which of these views is correct, asin our opinion there is nothing to prevent our regarding the presentapplication as not necessarily made under section 325 but preferred by-reason of a different remedy that was open to the judgment-creditor incircumstances such as these. The word in this section is “ may ”, not“ must ”, and I feel we are right in interpreting it as permissive only andnot imperative, as this is the view that has been taken by the IndianJudges in the corresponding section, viz., 328 of the Indian ProcedureCode, which is substantially the same. See Muttrarv v. Appasamic andBalvant v. Babaji °. One clear remedy is by way of regular action. Thisthe plaintiff has not done. Will another he by application to reissue thewrit of possession ? Section 287 of the Civil Procedure Code lays downthat there is procedurally no distinction in regard to the steps to be takenby a judgment-creditor who is seeking to enforce his decree obtainedunder section 217 (c), i.e., a decree to yield up possession of immovableproperty, and those that may be taken under section 287 by a purchaserat a fiscal’s sale who has obtained his conveyance. In SuppramaniamChetty v. Jayewardena% de Sampayo J. held, in giving relief to a partyseeking to obtain effectual possession, that the District Court should nottake a narrow view of its duty and power, and whatever the form of the.application, if it reasonably makes clear the position of the applicant, the
1 37 N. L. E. 163.* 23 N. L. R. 406.
* 1 Coy. Law See. 53.* X. L. E. 13 Madras 504.
s 2 C. L. R. 145.6 I- L. R. 8 Bombay 602.
’ IS N. L. R. 50-
DALTON S.P.J.—Mahroof v. Saile.
Court is entitled to cause the party resisting the execution of the writ ofpossession to be removed and the writ holder to be put in possession,Schneider J. agreed. This view was accepted by Garvin A.J. in Ledera «,Babahamy et al.1 In the Full Bench case of Silva v. de Mel de Sampayo J,drew attention to the words of section 287 and emphasized that the orderfor delivery of possession was to be “ enforced ” and not merely“ executed ”, and decries a narrow view being taken. The contention ofMr. Rajapakse therefore amounts to a subtlety and cannot be acceptedby us. A somewhat more extreme case has to be advanced to bring outthis subtlety conspicuously. What if the fiscal takes the judgment-creditor right round the boundaries of the land and after placing himformally in possession, enters his car and drives away, and the nextminute the judgment-debtor who is skulking behind one of theseboundaries enters the land and bundles out the decree holder. Can it bereasonably said that the writ of possession was duly executed ? I shouldcertainly say not, for to declare to the contrary would be to introduce alegal fiction which de Sampayo J. has deprecated.
The learned District Judge’s reasons for permitting a reissue of thewrit I agree cannot be sustained, but his order in granting the judgment-creditor this relief can be supported on the grounds I have set out. I amquite in agreement with the remark of Garvin J. in Pereira v. Aboothahir(supra) that the state of the law on this point is unsatisfactory and ^claimsthe intervention of the legislature.
The appeal must therefore be dismissed with costs.
Soertsz A.J. agreed in a separate judgment.
DE SILVA v. BASTIAN et al