061-SLLR-SLLR-2005-V-2-KAMALAWATHIE-AND-OTHERS-vs-FERNANDO-AND-ANOTHER.pdf
CA
Kamalawathie and Others vs. Fernando and Another
349
KAMALAWATHIE AND OTHERSVS.FERNANDO AND ANOTHERCOURT OF APPEALSOMAWANSA J (P/CA),
WIMALACHNDRA, J.
CA 1297/04 (REV)
DC PANADURA 588/L,
MARCH 23, 2005.
MAY 04,2005.
Civil Procedure Code – S.18, S.325-S.327- Exparte Judgment – writ resistedIntervention – is it possible? Third party invoking provisions of S.325 – validity?
{
The plaintiff – respondent instituted action for declaration of title to the premisesin question and obtained exparte judgment. Application to vacate the saidjudgment was refused. Writ of execution was issued, and was resisted by thepetitioner. They thereafter made an application under S.18 and S.325, whichwas refused by the trial Judge. The petitioner moved In Revision.
j
HELD
once Court enters decree, it is functus barring its right to enforce thedecree or execute the decree.
No one can be added as a party to the action after judgment is entered.
According to the provisions of the Code relating to resistance to theexecution of proprietary decrees, it is the judgment -creditor who shouldcomplain to Court and not the party resisting or obstructing whetherthat party be the judgment -debtor or a bona fide claimant.
Application in Revision against the order of the District Court of Panadura.Cases referred to :
Karunathilaka and another Vs. Dayananda Dissanayake, Commissionerof Elections 1999 1 Sri LR 183.
Fernando Vs. De Silva – 2000 – 3 Sri LR 29
Arif vs. Kandasamy Pillai 1982 2SLR 741
Rasheed Alils. Mohamed Ali- 1981 – 1 Sri LR 262.
Gamini Prematilake with Ms. Punya Jayathilake and Chamila Dammalage forthe petitioners – petitioners.
W. Prematilaka for the Plaintiff-Respondent
350
Sri Lanka Law Reports
(2005) 2 Sri L. R.
July 04, 2005•
Wimalachandra, J.
This application in revision has been filed by the 1st to 3rd petitioners(petitioners) from the order dated 03.05.2004 made by the District Judgeof Panadura. By that order the learned District Judge dismissed theapplication made by the petitioners for intervention under section 18 of theCivil Procedure Code, and permission to file answer in the above mentionedDistrict Court action. The petitioners also sought an order to stay all proceedingsin the District Court of Panadura in the aforesaid case No.588/L.
The plaintiff – respondent (the plaintiff) instituted the aforesaid action inthe District Court of Panadura against the defendant * respondent (thedefendant) for declaration of title to the premises described in the scheduleto the plaint, arrears of rent, ejectment and damages. On the day fixed fortrial the defendant was absent and the Court fixed the case for ex-partetrial. Thereafter the Court held that the ex-parte trial and the ex-partejudgment was entered against the defendant. The application made by thedefendant to vacate the ex-parte judgment was dismissed by the learnedJudge. Thereafter a writ of execution was issued in terms of the decree tothe Fiscal. When the Fiscal sought to execute the decree, he was resistedby the petitioners, who were not parties to the District Court action.Thereafter the petitioners made the aforesaid application that they be addedas parties and be allowed to file answer. After inquiry, the Court dismissedtheir application by order dated 03.05.2004. It is against this order that thepetitioners have filed this application in revision.
It is to be observed that once Court enters decree, it is functus barringits right to enforce the decree or execute its decree. This was the viewheld by Justice Mark Fernando in the case of Karunathiiaka and anotherVs. Dayananda Dissanayake, Commissioner of Elections{X).
In the case of Fernando Vs. De Silva Justice(2) U. de Z. Gunawardanaheld that, no one can be added as a party to the action after judgment hadbeen entered.
In the circumstances the petitioners are not entitled to the main reliefclaimed by them in that, they are not entitled to be added as parlies to theaction at this stage. Since the petitioners have no right to be added asparties, the permission sought by the petitioners to file answer does notarise.
CA
Kamalawathie and Others us. Fernando and another(Wimalachandra, J.)
351
In the caption of the petition filed by the petitioners in the District Courtit is stated that their application has been made in terms of section 18 andsection 327 of the Civil Procedure Code. Sections 325 to 327 are confinedto the execution of proprietary decrees which a judgment – creditor mayinvoke when there is resistance or obstruction to the execution or thejudgment -creditor is hindered from taking complete and effectualpossession within a year and a day (see – Arif, Vs. Kandasamy Pillai(3).
For these reasons I am of the firm view that the application made by thepetitioners in the District Court is misconceived in law and cannot bemaintained.
.It is to be observed that the entire procedure adopted by the petitionersis misconceived in law. There is no provision in the Civil Procedure Codefor the petitioners to intervene after the pronouncement of the judgmentand the entering of the decree. In terms of section 325 of the Code, if in theexecution of a decree for the delivery of movable property or the possessionof immovable property, the Fiscal’s Officer is resisted or obstructed byany person, or after delivery of possession, the judgment creditor is hinderedby any person in taking possession , the judgment creditor has the rightto complain of it to the Court. Section 327 of the Code states that ifresistance be made by bona fide claimant in possession on his own accountor on account of some person other than the judgment-debtor, the Courtshall make order dismissing the petition, if it finds that such right to interesthas been established.
In the circumstances there is no basis for the petitioners to make thisapplication to the District Court under sections 327 and 18 of the CivilProcedure Code.
As regards the powers of revision vested in this Court is concerned, it isonly in a fit case this court invokes its revisionary jurisdiction. In the caseof RasheedAll Vs. MohamedAliandothers{4) Wanasundara, J. observedthat, where the law does not give a right of appeal and makes the orderfinal, the Court of Appeal may nevertheless exercise its powers of revision,but it should do so only in exceptional circumstances.
In the Instant case it is to be noted that the petitioners have not pleadedexceptional circumstances in their petition. In their petition, the petitionershave not made out a case amounting to a miscarriage of justice.
2-CM 7649
352
Sri Lanka Law Reports
(2005) 2 Sri L. R.
What is of importance is, that according to the provisions of the CivilProcedure Code relating to resistance to the execution of proprietarydecrees, it is the judgment – creditor who should complain to Court by apetition and not the party resisting or obstructing whether that party be thejudgment * debtor or a bona fide claimant.
For the reasons stated above, there are no sufficient grounds for thisCourt to exercise its revisionary powers. Accordingly, the application inrevision is dismissed with costs fixed at Rs. 10,000.
Somawansa, J. (P/CA) — I agree.
Application dismissed.