GUNARATNA v. DINGIRI BANDA

089-NLR-NLR-V-04-GUNARATNA-v.-DINGIRI-BANDA.pdf


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1898.
September 29and
1899.
September 11
Where the consent of a party to a case instituted in the District Courtwas obtained by fraud and so judgment obtained, the proper remedy isto apply to the Supreme Court for an order on the Court below toreview the impugned judgment and to confirm or rescind it.
If upon review the judgment is rescinded, an actio indebiti lies to theparty who has been compelled to pay money in execution to recover it.
Where, in an action to vindicate certain lands in possession of defend-ants, plaintiff obtained judgment, and took out a writ of possession,but was unable to get into possession of some of the lands owing to theobstruction of the parties in possession, and where the plaintiff peti-tioned the Court under section 325 of the Civil Procedure Code, andthe District Judge, without finding the facts Which constituted theobstruction, directed the petition of complaint to be numbered andregistered as a plaint between the decree-holder and the respondents,with the object of investigating the respondents’ claims to the differentlands,—
Beld, that it was the duty of the District Judge to find the factswhich constituted the obstruction alleged, and if there was no obstruc-tion, there was no foundation for the order in question:
In section 324, “ other persons ” is ejusden generis with tenant, i.e.<a person Who has come on to the land under the judgment-debtor by atitle which had accrued before the decree.
I
N December, 1897, plaintiff commenced this action to recoverpossession of certain lands which he said had been sold and
GUNARATNA v. DINGIRI BANDA.
D. C., Kurunegala, 1,556.
Consent judgment obtained by fraud—Proper procedure to set it aside—CivilProcedure Code, s. 325—Hindrance to judgment-creditor taking posses-sion—“ Tenant or other person ” (s. 324).)
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1898. conveyed to him by the defendant in December, 1887. He allegedSeptember SO that he went into possession under his purchase, but that in 1892he had been ejected therefrom. Five years after the ousting thepresent action was brought. Defendant answered that the deedof conveyance of 1887 on which the plaintiff relied was a forgery.
The trial was fixed for the 16th March, 1898. On the 10th Febru-ary the parties and their proctors appeared and stated to theDistrict Judge that, as they had come to a settlement of thecase, judgment should be entered in favour of plaintiff for thelands in question and Rs. 1,000 as damages. The terms of thisagreement were set forth in a paper subscribed by the partiesand theifl respective proctors, and the Interpreter of the Courtcertified that the document had been explained by him to thedefendant. The District Judge thereupon allowed the motionand signed a decree according to the agreement arrived at.
On the 29th April defendant’s proctor moved for a notice onthe plaintiff to show cause why the decree should not be re-opened.The application was made on an affidavit of the defendant, inwhich he stated that his consent to the agreement was obtainedby force and fraud of the plaintiff; that plaintiff had made himdrunk; and that having been taken in that state before theDistrict Judge he gave his consent. The District Judge allowedthe motion and fixed the inquiry for the 30th May. On thatday the defendant being absent the Court discharged the motion.On the 15th July the defendant applied for a fresh notice onplaintiff to show cause why the decree should not be re-opened.The District Judge disallowed this motion, being of opinion thatdefendant was not entitled to any further consideration.
The defendant appealed.
Dornhorst, for appellant.
Wendt, for respondent.
Boxser, C.J.—
There seems to be some doubt as to what should be the properprocedure in cases where a party wishes to get a decree set asideon the ground of fraud. There is no doubt that, if a consent ofthe parties to a judgment is obtained by fraud, there must be someremedy for the fraud. This application was in substance anapplication fo.r what is called restitutio in integrum, which is awell-known civil law remedy for setting aside a judgment whichhad been improperly obtained. It seems to have been the practicein Holland to apply for restitutio in integrum to the highest Courtof Appeal, which had delegated to it the powers of the Sovereign
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Id this respect. If the applicant satisfied that Court that he hada primd facie case, the case was remitted to the judge who pro-nounced the decree, who, if he found that the decree had beenfraudulently obtained, would restore the parties to their originalpossession.
In this case the District Judge entertained the application, butunfortunately on the day fixed for the respondent to show causethe appellant was not in attendance, owing, as he. says, to an un-avoidable accident. The judge therefore dismissed the appli-cation. The appellant renewed the application, but the DistrictJudge refused to entertain it, and against that refusal an appealis now brought to this Court. Now, it seems to me, that we cannotgive him any relief on the present appeal. I should have beenquite prepared to follow the practice of the Courts of Holland,and to treat this appeal as an application to the Supreme Courtfor a direction to the District Court to entertain the applicationfor restitutio in integrum; but, on reading the affidavit, I amclearly of opinion that the materials before us are insufficient tojustify us in making such an order. The affidavit is far too vague.I should like to know more fully what occurred in the Courtbelow on the occasion of the consent decree being made, and inparticular what the defendant’s proctor has to say about theway in which the consent was given. In my opinion this appealmust be dismissed. At the same time, I think it should be with-out prejudice to any future application which the appellants maybe advised to make to this Court on fuller materials. Any suchapplication will,, of course, be an ex parte one.
1898.
September 29Bosses, C.J.
Withers, J.—
1 agree. There has been no settled procedure regarding therescission of judgments obtained by fraud of one of the parties.There must be some remedy, as the Chief Justice observes, forrestoring parties as far as can be done to the status in quo. Ofcourse it may not be possible to do this completely. But, thejudgment once rescinded, it would be open to the party whohad been compelled to pay money in execution of the rescindedjudgment to recover that- money by an actio indebiti.
I see no better form of procedure than an application to thisCourt for an order to the judge of the Court below to review thedecision said to have been obtained by fraud. There is nothingin the • Procedure Code or in The Courts Ordinance to prevent thiscourse being followed.
We have the fullest powers of revision, and if a primd facie caseis made out to us that judgment is fraudulent and ought to be
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1898.
September 29
Withers, J.
On the ease going back to the Court below, the plaintiff took out awrit of possession. On the 31st January, 1899, the Fiscal reportedthat he put the petitioner in possession of certain lands, but thathe was unable to put him in possession of the rest, as they wereclaimed by different parties. No action was taken on the report,but the writ was re-issued on the 1st March, 1899, for the Fiscalto follow the procedure laid down in section 324 of the CivilProcedure Code. Thereupon the Fiscal reported that he put theplaintiff in possession of the lands which he was unable to puthim in possession of oh the previous occasion, by serving noticeson the occupants. The plaintiff then commenced proceedingsunder section 325 against such occupants. The District Judge ruledas follows: —
“ This is an action under section 325 of the Civil ProcedureCode to deal with respondents who have hindered petitioner fromobtaining complete and effectual possession of certain lands undera writ of possession.
“ I think, after reading tht proceedings, that the petitioner isperfectly in order and has adopted the correct remedy. TheFiscal has put him in legal possession of the lands by servingnotices containing the substance of the decree on respondentswho are in occupation and who are not bound by the decree. Allrequirements of section 324 of the Code have been complied with.Petitioner has within thirty days of the obstruction come toCourt.
“ It appears to mq that the obstruction has been caused byrespondents claiming in good faith to be in possession of theproperties on their own account. Therefore, under section 327,I direct the petition of complaint to be numbered and registeredas a plaint in an action between the decree-holder as plaintiff, andthe respondent claimants as defendants.
“ Mr. Advocate Jayawardena urged that, as the various res-pondents claim the various lands on varying titles, the Courtshould refer the decree-holder to regular actions against therespondents.
“ But I fail to find any authority in these sections for any suchdecision of this Court. I think I am bound to deal with thematter under section 327, though the lands and respondents are
rescinded, we can direct the judge of the Court below to reviewhis judgment, and to confirm it or rescind it as .he may be advisedafter a further re-hearing.
In this case there is not sufficient material evidence to supportun order of this kind.
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certainly so numerous as to make such a course a little compli-cated. It will be convenient to deal with each respondentseparately.
“ Fix the 10th instant for issues to be framed as betweenpetitioner, decree-holder, and each claimant respondent.”
Against this order the claimants appealed.
Domhorst and Jayawardena, for appellant.
Wendt, Pteris, and H. J. C. Perera, for plaintiff, respondent.
Cur. adv. vult.
11th September, 1899. Withers, J.—
This is a novel case, arising out of the application of theprovisions of sections 324, 325, and 327 of the Civil ProcedureCode.
The facts of the ease appear to be these : —
The plaintiff, in an action to vindicate certain lands in thepossession of the party defendant, obtained judgment for them.
This entitled him to a writ for the delivery of the possession ofthe lands in the form No. 63 to be found at page 534 in the secondschedule to the Civil Procedure Code.
The plaintiff accordingly took out a writ. The writ was sentback to the Court with a return dated the 31st January, 1899.The return in effect showed that the plaintiff’s men had been putin possession of some of the lands, but that as to the othernumerous lands the plaintiff could not be put in possession, asthey were claimed by different parties. The affidavit of theofficer entrusted with the execution of the writ was annexed tothe return. The officer reported how he had put the plaintiff inpossession of some of the lands mentioned in the writ of delivery,but as to the other lots he stated that he could not put the plaintiffin possession, as “ they were claimed and being possessed ” bycertain individuals under deeds of gift, mortgage, and otherwise.The writ, according to an endorsement on it dated the 1st March,1899, was “ extended and re-issued, returnable the 15th April,1899.”
This was returned on the 13th April with the affidavit of theFiscal’s officer of the same date, according to which the officerhad put the plaintiff into actual possession of a few more lands,and into constructive possession of the rest by serving on theoccupants, as per list annexed to the return, notices in writingcontaining the substance of the decree in the above case, as the
1899
September 11
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1809.
September 11WlTHBRS, J. occupants declined to give up possession. The Fiscal excusedhimself for not having delivered the remaining lots to the plaintiffin terms of the mandate by stating that the occupants were notbound by the decree to relinquish their occupancy, and that theydeclined to give up possession. On the 20th April the plaintiffpetitioned the Court for an interlocutory order on the personsnamed in the Fiscal’s return to the writ appointing a day forinquiry into the matter of his petition, which was that he, thepetitioner, was hindered by those persons in taking completeand effectual possession of the remaining lots of land.
Though the petition is not intituled in the matter of the 325thsection of the Civil Procedure Code, it clearly refers to thatsection, and has been so regarded. The inquiry was held on the29th June following, and in the result the District Judge foundthat the petitioner had been obstructed by the parties maderespondents to his petition, but as they claimed in good faith to bein possession of the lots of land on their own account he directedthe petition of complaint to be numbered and registered as a plaintbetween the decree-holder and the respondents with the objectof investigating the respondent’s claim to the lands. This orderwas made under the provisions of section 327. But the DistrictJudge did not find the facts which constituted the “ obstruction,”and if there was no obstruction there was no foundation for theorder appealed from.
This was the chief point taken by the appealing respondents.
Section 325 of the Civil Procedure Code contemplates (1)resistance or obstruction to the, officer charged with! the execu-tion of the writ of delivery; and (2) hindrance after delivery tothe judgment-creditor: for taking complete and effectual posses-sion. As to No. 1, neither the Fiscal nor the execution-creditorcomplained of such resistance or obstruction. The petitionercomplains of hindrance, but does not explain how he was hinderedby any of the respondents.
The respondents were treated by the Fiscal as persons on whomservice of a notice in writing containing the substance of a decreefor the recovery of possession was tantamount to giving deliveryof the lands they occupied, and as coming within the terms ofsection 324 of the Civil Procedure Code. Whether the respondentsdo in fact answer to the description of persons indicated in thatsection may be open to doubt.
That section 324 affects persons in occupation of immovableproperty, such as a tenant or other person entitled to occupy thesame as against the judgment-debtor and not bound by the decreeto relinquish such occupancy.
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I cannot help thinking that “ other persons ” in this section is 1800.ejuadem generis with tenant, and by that I mean a person who September 11has come on to the land under the judgment-debtor by a title Witbkrb, .T.which has been said to go before the decree. Such occupancymay carry with it full rights of possession and enjoyment or onlyqualified rights of possession and enjoyment. It may be limitedto a short time or may extend to a long time.
Now, what constitutes hindrance in encli case must depend onthe particular circumstances of the case. It was argued that“ other persons ” in section 324 included any person other thanthe judgment-debtor claiming in good faith to be in possession ofthe property on his own accounti or on account of some otherperson than the judgment-debtor was to be found in section 327.
That, as I said before, is a doubtful question, but I need notdecide the point, as in my opinion there is no evidence of thenature of the hindrance alleged to have been offered by any ofthe respondents to the execution-creditor. In the absence ofsuch evidence the order cannot stand.
I have less regret in discharging the order, because I tbink theclaims of the respondents should be decided by action and not bythe summary procedure provided by section 327.
Browne, A.J.—
1 quite agree with my brother in his construction of section 324.If the words “ other person,” &c., were not to be read as ejusdemgeneris with “ tenant,” but entirely free from that which isattached to them—in certain relation towards the judgment-debtor—we might have expected that the proviso would have beenworded, simply “as to so much of the property as is in theoccupancy of any person not bound by the decree.”
1 do not know whether this Court has yet decided whetherhindrance to a creditor in taking complete and effectual posses-sion, after the officer had delivered formal possession to him,would be punishable under section 326 or as a contempt of Court.It has only been ruled that the primary resistance or obstructionto the officer is not punishable as contempt (2 S. C. R. 145).
This clause as to subsequent hindrance of effectual possession isnot in the Indian Code, and our own Code has not in sections 326-7dealt with such “ hindrance ” nominatim. It may be possibletherefore that, when formal possession is given by the officerwithout such resistance or obstruction as would necessitateimmediate complaint—i.e., when the writ of possession has beenat the first formally submitted to—any subsequent hindrancemight be punishable as contempt when committed so soop after
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1899.
September 11Bbowkb.A.J. formal delivery as to be truly a disobedience after a semblanceof obedience, or might, especially when manifested only some timethereafter, be matter for a fresh cause of action.
In the present case the interval between formal delivery andpossession was thirteen days, and therefore facts should havebeen clearly detailed and shown whether it was a case of contemptor not. However that may be, I agree in holding here that theaverment' in the petition that the petitioner is hindered (by theparties on whom the Fiscal served the notice under scetion 324)in taking complete and effectual possession thereof was too bald.It was not supplemented by any evidence at the inquiry into thematter of the petition, and I fail to see, therefore, how the Court“ found ” there was any resistance or obstruction for which itshould proceed under section 327.
It was irregular to file one petition with one such avermentagainst the persons who were, according to the Fiscal’s return, inoccupancy of the lands in seven parties—one of fifteen lots, oneof three, one of two, and four of one lot each respectively—andpresumably in any hindrance of petitioner made the sameindependent of the others, necessitating separate inquiry thereto,and thus avoiding the complication which the learned DistrictJudge said would arise.
The Fiscal’s return to the writ was also defective, in that hedid not show that the occupants on whom he served the noticeswere or at least claimed to him to be, tenants of the judgment-debtor or entitled, and how, to occupy the same as against him.
I agree, therefore, that the order under section 327 be set asidewith all costs.
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