038-NLR-NLR-V-28-GUNAWARDENE-v.-FERNANDO-et-al.pdf
( 222 )
1926.
Present: Jayewnrdene, A.J.
GUNAWARDENE v. FERNANDO et al.
404—P. C. Ckilaw, 19,787.
Resistance to a Public Officer—Execution of writ—Delivery of boat—Claimof right—Penal Code, s. 183.
The complainant, a Fiscal's officer, was entrusted with theexecution of a writ for the delivery of a boat which was not in thepossession of the judgment-debtor. In attempting to seize anddeliver the boat to the judgment-creditor, the complainant wasresisted by the uccused, who claimed the boat as their property.
Held, that the accused were not guilty of obstructing a publicservant in the discharge of his public functions.
Canthapillai Odaiar v. Murugcsu 1 followed.
Goonctillckc v. Atlapattu2 not followed.
J. S. Jaijeivarclenc, for the accused, appellants.
September 27, 1926. Jayewardene A.J.—
The appellants in this case has been convicted under section 183of the Penal Code of resisting a public servant in the discharge of hisduties and sentenced to pay a fine of Rs. 7.50 each. They appealon certain points of law.
It would appear that one Laus Fernando obtained judgmentagainst one Anthony Fernando, son of the 2nd* accused, brother ofthe 1st accused and brother-in-law of the 3rd accused, in C. R.Chilaw, No. 22,256, for the delivery of a fishing boat or in the alter-native for the payment of its value, Rs. 120. On decree entered inthe case the plaintiff obtained a writ for the delivery of the boat tohim. The writ was entrusted to the complainant, who is a Fiscal'sofficer, for execution. On his attempting to seize and deliver theboat to the judgment-creditor, he was resisted by the accused whoclaimed the boat as their property. Hence this prosecution.
I have called for the case in which the writ issued, and the pro-ceedings there show that the action was originally instituted againstAnthony Fernando and these accused; and that the 2nd accusedclaimed the boat by right of purchase and the other defendantsdisclaimed title and denied that they own or possess any boat. Atthe trial, judgment was entered of consent against 1st defendantalone. Nothing was said with regard to the 2nd defendant's claimto the boat. It was not waived.
"(ISPI) I Ceylon Law Reports 90.2 (1924) 6* Ceylon Law Recorder 63.
( 22n )
The question for decision is whether the accused who claim tbrboat as their property were guilty of an offence when they resistedthe Fiscal’s officer who attempted to deliver the boat to the judg-ment creditor. In the lower Court the proctor for the accused tookseveral objections in law, and the learned Police Magistrate, althoughhe viewed them sympathetically, felt bound to over-ruld them.These objections have been pressed before me.
It seems to me, in the first place, that the fishing boat claimed bythe plaintiff in the civil case was insufficiently described in the writ.In fact, it waB not described at all except as a fishing boat. Nomark, number, or size was given to distinguish it from any otherfishing boat, and the evidence shows that the Fiscal’s officer had tomake inquiries at the spot to find out which boat it was he wasdirected to seize and deliver to the writ holder. He got noinformation from the judgment-debtor who was not there. The boatwas not in the actual possession of the judgment-debtor. It was ata ferry. In India it has been held that the section of the IndianCivil Procedure Code corresponding to section ;*>21 of our Code hasno application to cases in which the movable property directed tobe delivered is not in the possession of the judgment-debtor.(Pudmanund Singh v. Dat Jha.*) That principle seems to me to bea sound one, especially in a case like the present where there isnothing to distinguish the movable property referred to in the writfrom other movable property of the same kind. If the propertyis found in the possession of the debtor and he surrenders it to theFiscal's officer, then there would be no doubt or difficulty ; but ifthe Fiscal has to go to the spot and identify the property byinquiries set on foot by him, he might be misled and there might*be trouble. In this case, when the Fiscal's officer failed to obtaindelivery of the boat for the judgment-creditor he should havefollowed the procedure laid down in section 821 of the Code andreported such failure to court, and the judgment-creditor, if soadvised, might have taken the steps laid down in that section. Acriminal prosecution, in the first instance, appears to me to have*been entirely ill-advised in the circumstances of this case.
The main question, however, is whether the resistance orobstruction offered by the accused in the circumstances above setforth makes them guilty of an offence under section 183 of the PenalCode. If I had to decide the question apart from authority, Iwould unhesitatingly say that they are guilty of an offence underthat section as I did in GoonetiUeke v. Attapattu (supra). At the argu-ment of that case my attention was not drawn to a decision of theFull Bench of this Court in Canthapillai Odaiar v. Murugesu (supra)which has decided the question in a different way. In that case thecomplainant, a Fiscal's officer, in executing a writ against property
1920.
♦Iaykw.vk
DKNK A.A
Ounawar-dene v.Pcrna-tnb*
28/18
1 (189$) 1 Calcutta Weekly Notes 170,
1926.
Jayewak-]>KHE A.J.
Cunawar-dene v,Fernando
i
( 224 )
attempted to seize as the property of the execution-debtor certaincloths lying in the accused's shop and claimed by the accused.The accused resisted the seizure, taking the goods out of the handsof the officer and replacing them in an aimirah from which the officerhad taken them. The Full Bench held that the property sought tobe seized not being proved to be other than accused’s the obstruction,not amounting to an assault or personal injury, was a lawful act inthe exercise of the right of private defence of property, notwith-standing the provisions of section 92 (2) of the renal Code, and didnot constitute the offence contemplated by section 183 of the Code ;and Clarence J. thought that if the accused had done anythingamounting to an assault upon the officer it might be that by theoperation of section 92 the accused would have been open toconviction if charged with the assault. In the present case theaccused was not charged* with ^tempting to assault the Fiscalsofficer.
This case was followed in the Deputy Fiscal of Kalutara v. Baba-ltamy.1 Whatever my own opinion may be, the Full Bench decisionbinds me, and I cannot decide the case according to my own viewor the law.
In the circumstances the appeal must be allowed and the accusedacquitted.
Set aside.
{1902) 3 Br. 90 (92).