FERNANDO et al v. CADIRAVELU

100-NLR-NLR-V-28-FERNANDO-et-al-v.-CADIRAVELU.pdf


( 492 )
1927.
Present: Schneider, Garvin, and Lyall Grant JJ.
FERNANDO et al v. CADIRAVELU.
143—D. 0. (Inty.) Colombo, 786.
' Partition—Sale of property—Order for delivery of possession—Bight ofpurchaser—Power of Court—Civil Procedure Code, ss. 287, 889.
Per Schneider and Garvin JJ. (Lyall Grant J. dissentiente).—A court has no power to make an order for delivery of possessionin favour of a person to whom property has been sold in pursuanceof a decree for sale, entered under the Partition Ordinance.
C
ASE referred to a Bench of three Judges on the point whethera purchaser of property sold in pursuance of a decree for its
sale entered under section 4 of the Partition Ordinance is entitled toan order for the delivery of the possession of the property from theCourt.
H. V. Pcrera, for 2nd and 3rd defendants, appellants.
Hayley (with Amereselcere), for purchaser, respondent.
June 8, 1927. Schneider J.—
The only question for decision in this appeal is whether the•purchaser of property sold in execution of a decree for its sale.entered under section 4 of the Ordinance No. 10 of 1863 for the•.partition or sale of lands held in common is entitled to an order forthe delivery of its possession from the Court which make the decree.Jp.ithis^ action the District Judge issued such an order on the Fiscalupon the ex parte application of the purchaser, the respondent to. this
( 493 )
•appeal, to whom a certificate of title had been issued under section 8of the Ordinance. In execution of the order, the appellants whowere the second and third defendants in the action and were inpossession were ejected. Thereupon they moved the Court to berestored to possession on the ground that the order for the deliveryof possession was ultra vires, and also on one other ground which^isnot material to this appeal. The District Judge held that the orderwas not ultra vires and disallowed the application. The appellantsappealed. The two Judges before whom the appeal came on forhearing referred it to a bench of three Judges. Accordingly theappeal has come before us.
The learned District Judge gives three reasons in his judgmentin justification of his holding. He says first that it has been theinvariable practice in the District Court of Colombo, and in manyother Courts, to issue such orders, and that a cursus curiae should beregarded as having been established. He next says that as thisCourt held in Hadjiar v. Mohamadu 1 that a Court after entering afinal decree allotting to a particular party a particular portion of theland, has jurisdiction to issue an order for the delivery of the posses-sion of that particular portion to the particular party although thedecree itself contains no express order to that effect, it follows thata purchaser of property under a decree for the sale of the propertyis likewise entitled to such an order. Lastly, he says that section 889of the Civil Procedure Code “ invests *’ him “ with power ” to makesuch orders as are “ necessary for the ends of justice, ” and thatthe present was an appropriate case for the Court to " grant relief ”under that section.
No other reasons than those given by the learned Judge wereadduced before us. Nor can I for myself think of any other reason.The learned Judge has discussed the question very well, if 1 maypresume to say so, but I find myself unable to agree with him. Idiffer from the view taken by him with reluctance, because in . mostcases the procedure he has chosen, to adopt will be found to be veryconvenient, but on the other hand, I can conceive cases where thatprocedure might result in injustice. For that reason I would notuphold an argument based solely on the ground of convenience asjustification for the procedure he had adopted. The whole objectof the Ordinance is to put an end to ownership in common. Thatobject is accomplished when the Court has entered up its final decreeallotting shares in severalty or directing the sale of the land. Theobtaining of possession is a step subsequent to such a decree, andtherefore, strictly speaking, outside the object of. the Ordinance. Ifit had been intended that the Ordinance should be concerned withsuch a step it is not easy to conceive why no provision has in factbeen made in the Ordinance itself for that purpose, especially as we
1 (1917) 4 <7. W. B. 371.
. 1927.
SOHNBXDEB
J.
. Fernando
v.
Qadiravelu
( 494 )
1987. find that the Ordinance does provide express or special procedureSghnbidbb for every material step in an action instituted under its provisions.
,Jt There are to be found in the Ordinance provisions as to the mannerFernando of the institution of the action, its constitution, the issue and serviceGadiruvelusummons> the evidence which should be adduced, the several
forms qf the decrees and their effect, and the procedure in detail fortheir execution. It provides for the summary recovery of costs. Itconfers a right of appeal, and as regard that matter alone enactsthat regulations to be found elsewhere are to govern the appeal.Accordingly, it would appear that the fact is not without significancethat the Ordinance is silent about the obtaining of possession inconsequence of a decree. ' But on the other hand that silence cannotbe regarded as concluding the matter.^ It- must be conceded thatwhere necessary, we should resort to the Civil Procedure Code whichenacts the general procedure to be. followed in all actions in Courts.It is only the existence of any special procedure which will renderany provision in the Civil Procedure Code inapplicable. It becomesnecessary, therefore, to inquire whether there is any provision in theCivil Procedure Code for the order for the delivery of possessionissued, in this action by the District Judge. That order clearlycannot be brought, under the provision in section 287, which isintended only for those cases where property has been seized andsold in execution of a “ decree to pay money." What this Courtheld in Hadjiar v• Mohamadu (supra) was that a final decree in apartition action awarding shares in severalty to the parties shouldbe construed as a decree coming under head C of section 217, that is,as commanding all persons whomsoever against whom it operates** to yield up possession ” of the particular portion of land to theparticular person to whom it is allotted by the decree. The DistrictJudge seeks to extend this construction to a decree for the sale, of theentire land, arguing that before the Court can rightly enter up sucha decree it must be satisfied that the parties are entitled to the land.He also argues that such a decree should be construed as containingby implication a declaration that the parties are entitled to thepossession of the land and to be restored to that possession. He hasto argue that, or Hadjiar v. Mohamadu (supra) would not help him.If he stopped there his argument would still fail, so he is obliged togo further. He has to argue that the purchaser of the land stepsinto the place of the parties to the decree. Several reasons suggestthemselves against this argument. It is not correct to regard adecree for sale as being identical with a decree allotting shares inseveralty. The two decrees differ widely regarding essential parti-culars, although there may be some elements common to both. Inthe final decree partitioning the land the parties are, in effect,declared entitled to the particular portions allotted to them inseveralty in lieu of their undivided shares in the whole land to
( 495 )
'which they were entitled previously. Such a decree permits theconstruction given to it in Hadjiar v. Mohamadu (supra) that thedecree by implication declares the several parties to be entitled to beplaced in possession of the several divided portions. In the finaldecree for sale of the land the parties are declared entitled toundivided shares in the whole land which is a declaration to befound in the preliminary decree for partition, and it orders that theJand be sold. There is no room for such a decree to be construed ascontaining by implication a declaration that the parties should beplaced in possession. On the contrary, the declaration that itshould be sold negatives such a construction. , Clearly one of theparties to the decree, on the strength of it, cannot seek the assistanceof the Court to be restored to possession or to be given possession,nor can he ask for ejectment of any person from the land. It seems‘ to me, therefore, clear that the case of Hadjiar v. Mohamadu (supra)cannot be invoked to support the order for the delivery of possessionissued by the Judge. I am unable to see how the purchaser can beregarded as stepping into the place of the parties to the decree.Those parties are the decree holders. A decree holder’s right to th9decree can be transferred to a third party only by an assignment ofthe decree and that assignment can only be effected either byoperation of law or by contract between the parties. By purchasingthe land the purchaser acquires no more than those rights to theproperty which the decree confers upon the purchaser. Section 9of the Ordinance for partition of lands declares what that right is.It is clearly not an assignment of the decree, and in no sense can thepurchaser be said to become a party to the decree by the purchase ofthe land. Even if he be regarded as having obtained in someunaccountable way an assignment of the decree, his rights would beeonfinei to claiming that the land be sold, for that is what thedecree directs, and that he be paid the entire proceeds of the sale.
Before proceeding to discuss the effect of section 839 of the CivilProcedure Code and of the argument based upon the existence of acursus curiae or long-standing practice, I think it necessary toconsider what is involved in the issuing of an order for the deliveryof possession of land. Clearly something more than mere procedureis involved. Before an order for the delivery of possession can beissued, the Court must be in possession of proof of the existenceof a substantive right in the person claiming to have delivery ofpossession, that he is entitled to be placed in possession of the land.A substantive right is by its very nature something very different toprocedure. To use the language of jurisprudence—one belongs tothe domain of substantive law and the other to that of adjective law.
The Civil Procedure Code first provides the procedure by whichn person is to obtain a declaration of a right to possession(section 217 (c) and then proceeds to provide for the' obtaining of28/35
1927-
SOHNISXDEB
J.
Fernando
v.
Cadiravelu
( 496 )
1927.
SOHKBIDSB
J.
JPemando
v.
Oadiravelu
the delivery of that possession. The order for a delivery ofpossession must have for its foundation a substantive right. Fromwhat I have already said, a purchaser cannot be regarded a6 havingobtained a declaration of such a right. Practice i$ procedure.It cannot, however long its duration be, create or confer substantiverights.
I am accordingly unable to uphold the argument based upon theexistence of a cursus curiae. I am unable also to take the same viewof the effect of section 839 of the Procedure Code as the learnedDistrict Judge. He is wrong in regarding it as investing him withany right. Its language is clear that it does no more than conservesuch “ inherent power as a Court has, in order to enable the Court“ to make such orders as are necessary for the ends of justice or. toprevent abuse of the process of the Code/’ I do not consider itnecessary to discuss the decisions of the Indian Courts on the sectioncorresponding to section 839, for the District Judge has omitted toindicate, nor can I for myself see, that a Court has any inherentpower to confer a substantive right of the nature I am considering.The express provision of the Civil Procedure Code negatives theassumption that a Court has such power. The right can come intoexistence only after due adjudication in an action. I would there-fore hold that a Court has no jurisdiction to issue an order or writ forthe delivery of possession to a purchaser of land sold in pursuance ofa decree for its sale entered~in proceedings under the Ordinance forthe* partition of lands.-
In regard to the only other ground upon which the appellantssought to be restored to possession, the Cpurt has held against themso far as that matter could be inquired into summarily, and I thinkno useful purpose will be served by disturbing the purchaser'spossession at the present time. The appellants have succeeded ontheir main contention on appeal, They will therefore have theircosts of the appeal from the respondent. The District Judge'sorder refusing to restore them to possession is affirmed.
Garvin J.—
The short point raised by this appeal is whether the District .Courthas the power to make an order for delivery of possession of premisessold in pursuance of a decree for sale entered under the provisionsof the Partition Ordinance, in favour of the purchaser to whom acertificate of sale, in terms of section 8 of the Ordinance, had beenissued.
The appellants who were party defendants to a proceedingunder the Partition Ordinance were dispossessed in pursuance ofsuch an order. Ten days later they petitioned the Court to vacatethe order for delivery of possession which was made ex parte, and
( 497 )
without notice to them. The District Judge refused to vacate theorder which he thought he had a right to make. From this orderthe petitioners appeal.
It is conceded that there is no provision of law which expresslyconfers upon District Judges power to make such an order. ThePartition Ordinance is silent on the point while the Civil ProcedureCode only contemplates the making of such an order in the case ofpurchasers at sales in execution held by a Fiscal {vide section 287).The prov’sion of section 889 of the Civil Procedure Code werereferred to in the course of the argument, but I am unable to seethat that section confers or was ever intended to confer on Courtspowers which they did not possess at the time of that enactment.Its true intent and purpose is to declare that the provisions of theCivil Procedure Code are not to be deemed to be exhaustive of or toset a limit to the powers of the Court. Nor do I think the case ofHadjiar v. Momamadu (supra) cited by Counsel for the appellants is ofany assistance in the determination of the question before us. Thedecision in that case was that a final decree for partition must betreated as a decree in favour of each of the persons to whom a sharein severalty had been allotted declaring him entitled to that allot-ment and also to the possession thereof. If such a decree mayproperly be regarded as a decree for possession under section 217 (c)of the Code it becomes enforceable as such. All the powers and thewhole machinery created by the Code then becomes available tomeet and deal with any situation which may arise in the enforce-ment of that decree. But it is unnecessary to consider whetherHadjiar v. Mohamadu (supra) was rightly decided since we are notconcerned with a final decree for partition, nor is it possible to regardthe purchaser of property sold in pursuance of a decree for sale madeunder the Partition Ordinance as the holder of a decree for possessionof that property within the meaning of section 217 (c) of the CivilProcedure Code. Section 287 of the Code empowers a Court tomake an order for delivery of possession in favour of a purchaser inthe case of a sale in execution held by the Fiscal and expresslydeclares that such an order may be enforced as an order for posses-sion under section 217 (c). The Legislature has not thought fit toextend the provisions of section 287 to every case in which propertyis sold under order of Court. The main grounds upon which it wassought to support the order under appeal are these. First that thepower to make such an order is impliedly conferred upon the Courtby the terms of the Partifon Ordinance, and secondly that a Courthas inherent power to render sales held under its prders effective byplacing the purchaser in possession. The foundation of the first ofthese lines of argument is that all powers', though not expressed butwhich are necessary to give effect to the purposes of the Ordinance^must be presumed to be inherent m the Court. When coming
1927.Qabvjn J.
Fernando
v, •
Oadiraveiu
( 498 )
1927.
0ABVXN J.
Fernandov.
Oadiravelu
ownership becomes burdensome the Partition Ordinance enables itto be determined at the instance of a co-owner by the conversion ofundivided shares, into shares in severalty by partition, or when thatis not possible by the sale of the land. Upon the issue of a certi-ficate of sale to the purchaser under decree for sale, the title declaredto be in the co-owners is definitely passed to the purchaser, and thelands cease to be held in* common by the original owners. Thepurpose of the Ordinance is expressed in the preamble to be “ thepartition or sale of lands held in common.” When the land held incommon is sold and a certificate of sale issued, the purpose of theOrdnance has been fully effected. However desirable and conve-nient it may be that the purchaser should be placed in possession ofthe land bought by him, I am unable to agree that the purposes ofthe Ordinance are not fully carried out until that is done, nor can Tassent to the contention that those purposes are not fulfilled till suchsale is made effectual in the manner suggested.
If this order under appeal is to be sustained it must be upon thebroad ground that a Court has inherent powers to render sales heldunder its orders effective by placing the purchaser in possession. Itis a proposition which, if sound, applies to all sales held under theorders of a Court and not merely to sales under the Partition Ordi-nance, and it implies that there has always been inherent in theCourt all those powers to make orders and hold inquiries which arecontained in section 287 and in the provisions of the Civil ProcedureCode relating to the enforcement of decree for possession.
It is difficult to believe that section 287 which specially empowersthe making of an order for delivery in the single case of a Fiscal’ssale and in terms give to that order the effect of decree for possessionwould have been enacted if all powers necessary to place purchasersat sales held under orders of Court were inherent in our Courts.
The only citation made in the course of argument as authority forthe proposition is a passage in the judgment of Wood Renton J. inthe case of Abeyratna v. Petera.1 It is by no means clear that thelearned Judge intended to say that Courts of law had an inherentpower in all cases of sales held under its orders to order that thepurchaser be placed in possession. He was considering the case ofopposition to the purchaser by the defendant in a hypothecaryaction. What Wood Renton J. said was this: —
“ The sale has taken place in conformity with the directionscontained in a decree which is certainly binding on him,and the Court must have inherent power to render thatsection effectual.”
His view would seem to be that inasmuch as the decree for salewas binding on the defendants the Court could render the saleeffectual against them by an order for delivery.
i (1912) IS N. L. R. 347.
( 499 )
This is a much narrower proposition, but with all respect I questionthe soundness of the proposition even as so limited. Apart entirelyfrom special legislation all powers necessary to execute its lawfulorders and decrees may be presumed to be inherent in a Court. Inappropriate cases persons bound by such orders and decrees whorefuse to conform to or comply therewith may be dealt with as for acontempt. But where the decree or order is fully executed inaccordance with its tenor there is no need to presume the existenceof any further powers merely on grounds of convenience. A decreeauthorizing the sale of property is fully executed when the propertyis sold and the necessary document of title is granted to the pur-chaser. The mere fact that the original decree for sale is binding onthe defendants to the action does not and cannot authorize thepurchaser to demand, or the Court to order that possession of thepremises which formed the subject of the sale should be deliveredto him. It is not an order which it is necessary to make toprocure execution of the original decree which has been fully exe-cuted nor is it an order which in my judgment a Court has an inherentpower to make.
A purchaser at a sale held under orders of Court is in no worseposition in this respect than a purchaser at any other sale. Theright and title of those against whom the property is sold is con-veyed to him and he must like any other purchaser rely on thistitle and obtain possession by regular action unless and until theLegislature thinks fit to place all purchasers at sales held underorders of Court in the same position as purchasers at Fiscal's sales.The appellants are only two of several persons who were in thisaction declared to be jointly entitled to the premises. To reverse theorder and direct that the purchasers be dispossessed will be to placethem in a better position than they occupied at the time the order fordelivery of possession was made effective. The most they can askfor is to be restored to the possession of those shares of which theywere dispossessed.
But I am not satisfied that under all the circumstances the posses-sion of the purchaser should now be disturbed. The titles is in him.The appellants' contention that the purchase was in trust from themand their co-owners failed both in the summary inquiry held by theDistrict Judge and in the regular action brought to enforce thealleged trust. That judgment is under appeal and the decision inappeal will settle the respective rights of the parties.
The appellants having succeeded in their main contention areentitled to the costs of this appeal.
Lyall Grant J.—
I agree with the judgment proposed that the possession of therespondent should not be disturbed, but I respectfully dissent fromthat part of the judgment which relates to costs.
28/36f1987.
Oabvxk J.
Fernando
v.
Gadtravelu
( 500 )
• 1987.
LtallGrant J.
Fernando
v,
Cadiravelu
The appeal was taken from an order of the District Court dis-missing an application to be restored to possession and that orderhas not been disturbed. The appeal has, in effect, failed, and I amunable to see any grounds upon which the respondent can not onlybe deprived of his order for costs but also have costs awarded againsthim. It is true that my brother Judges are of opinion that thegrounds upon which the learned District Judge refused theapplication are incorrect in law, but with great respect I cannot seethat this is a reason for departing from the usual rule as to costs.
On the question of the correctness of the District Judge’s findingin law, I must, though with great diffidence, differ from the conclu-sions arrived at by the other members of the Court.
I cannot see any reason why a Court which has ordered a sale ofproperty under the Partition Ordinance should not give possessionof that property to the purchaser without compelling him to bringa separate action for that purpose.
The powers given to the Court by the Ordinance are very exten-sive. It is empowered to issue a commission for the sale of theproperty.
The property is sold by the commissioners, that is to say, by theCourt, and after payment of the purchase money by the purchaserinto Court a certificate is delivered to him by the Judge, narratingthe fact of the sale, setting forth his name, and the fact that he haspaid the purchase money to Court. This certificate constitutes acomplete title to the property without any necessity of a deed oftransfer and combined with the decree for sale it is, by virtue ofsection 9, a title good against the world. The previous owners of theproperty are, by the Judge’s certificate, completely divested of anyright, title, or claim to the property.
The conditions of sale are approved by the Court and the purchasemoney is paid into Court agreeably to the conditions of sale. Oneof the conditions approved by the Court in this case was that thepurchaser should be put in possession, and it was on the faith of thiscondition that the money was paid into Court.
The ordinary obligation of a person who sells property is to conveyfull ownership (dominium plenum) to the purchaser and one elementof full ownership is right to possession. In other words, the rightof the purchaser to possession is implied in an ordinary transactionof sale, and it is the duty of the seller to hand over possession.
That this implication has been deemed to apply to sales under thePartition Ordinance is, I think, sufficiently apparent from the factthat an undertaking to give possession is included in the formcommonly used for sales under the Ordinance.
Is there any reason why a Court should be in a positiondifferent to that of an ordinary vendor? To all intents and purposesthe Court, acting partly through its commissioners, deals with the
( 501 )
land as if it were the owner. It is given the right to sell it without 1927.-the consent of the co-owners, it fixes the conditions of sale irre-t,vat.t.
spective of the wishes of the co-owners, and it gives an absolute title Oban* J.to the land,Fernando
This last, it could certainly not do unless it were in the eye of the Gadiravelulaw entrusted with the full rights of ownership for the purpose ofsale.
It appeals to me to follow from the above that it is not onlyentitled but bound to give the purchaser possession of the property.
It has been argued that no procedure has been laid down by whichthe Court can put the purchaser into possession. I am not specially•concerned to inquire whether the Civil Procedure Code has laiddown any special procedure to be followed in such a case. On theordinary principles of Roman-Dutch law in regard to purchase andsale, I am satisfied that a right to possession exists, and that it is notnecessary for any further proceedings to be brought in order toestablish that right.
The question of how the Court is to give effect to the right is nob aquestion of substantive law but is a mere question of adjective lawor procedure.
Is there any reason why the decree of the Court coupled with thecertificate of title should not be considered to be equivalent to adecree in favour of a judgment-creditor under section 323 ?
Any difficulty there might possibly be in the application of thatsection is to my mind removed by the provisions of section 839. If• the point of procedure is a cctsus improvisus, it is open to the rule-making committee appointed by section 53 of the Courts Ordinancef to lay down the procedure whereby the Courts shall give full effectto orders made under section 8 of the Partition Ordinance.
I find it quite impossible to accept the proposition that, because ,the Civil Procedure Code does not lay down a specific procedure lor.giving full effect to a right conferred upon a party by a Court, theCourt is not bound to carry out its obligations like any other person,and for that purpose to exercise all the powers of execution itpossesses.
The only effect of requiring the purchaser to bring a separateaction to enforce his right would be to compel him to prove withgreat trouble, delay, and expense, a fact which already is perfectlywell known to the Court, namely, that it is bound to give him posses-sion of the property.
In conclusion, I may perhaps add that the distinction betweenwhat is substantive law and what is a mere question of procedurewould be clearer if this Colony had a Civil Procedure Ordinance ofa more modern type. A common and convenient practice nowadays
( 502 )
1927.
LyallG&avt J.
Fernando
v.
Cadiravdu
when Legislatures deal with procedure is that they confine them-selves to laying down a few general rules, leaving details to besettled by a rules committee consisting usually of Judges andpractising lawyers. This form of legislation makes it easier toprovide procedure suitable for the various situations with which theCourts may be confronted.