008-SLLR-SLLR-1982-1-Kandiah-Another-V.-Kanathipillai-Another.pdf
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COURT OF APPEALKandiah & AnotherV.Kanapathipillai & AnotherC.A. Appeal 2388/80 — D.C. Point Pedro No 12028Sections 325, 326 and 330 of C. P. C. Interruption of Possession after Judgment-Creditorhas been put in complete and effectual possesssion – Appropriate procedurefor dealing with such offence – Contempt.
Plaintiff-Respondents filed action against first Respondent-Petitioner andasked for damages possession and ejectment in respect of some land atUduppidy. Judgment was entered for Plaintiff-Respondents on 3.6.74. OnPlaintiff Respondents application for execution of decree possession wasgiven to them on 4.9.78. Thereafter Plaintiff-Respondents were ousted bytwo others at the instigation of 1st Respondent-Petitioner and 1stRespondent-Petitioner was dealt with for contempt of court andPlaintiff-Respondents were ordered to be placed in possession. Possessionwas delivered on 20.06.79. On 14.08.79 Plaintiff Respondents made anapplication under 32S of Civil Procedure Code and complained that 1stPlaintiff Respondent and K.T. had on 17.07.79 prevented them frompossessing and cultivating the land and prayed that notice be issued onthem for contempt of court. On 30.10.80 court imposed punishment onthem after inquiry.
Petitioners appealed.
Held(1) That in the instant case the interruption of possession took
place after possession was delivered to plaintiff-respondents andtherefore the provisions of Section 325 of Civil Procedure Codewas no* applicable.
that the District Judge ought to have treated the applicationas one made under Section 330 and dealt with petitioner forcontempt of court as provided in Chapter 6S of C.P.C.
that as the District Judge did not follow procedure laiddown in Chapter 65 of C.P.C. in respect of contempt of Court,his conviction of the Petitioner under Section 325 must be quashed.
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Kandiah v>. Kanapathipillai (Tamhiah. J )
85
APPLICATION for revision of order of the District judge of PointPedro.
TAMBIAH, J.
This is an application in revision to set aside an order made undersections 325 and 326 of the Civil Procedure Code, dealing with thepetitioners for preventing the plaintiffs-respondents from possessingand cultivating their land, after possession was delivered to them bythe Fiscal. According to the petitioners, the 1st respondent-petitionerwas sentenced to 3 months’ imprisonment and a fine of Rs.250/- wasimposed on the 2nd respondent-petitioner, Sundaram Nallathamby;but it would seem that the fine was in fact imposed on oneKanapathipillai Thamotharampillai, who was the 2nd respondent tothe application under s. 325. He, however, is not a party to thepresent application before us.
It appears that in October 1972, the plaintiffs-respondents filedAction No. 12028,D.C.,Point Pedro, against the1st
respondent-petitioner and asked for damages, possession and ejectment,in respect of a land called “Ponnar Veeddu Vasal”, situated atUdupiddy. Judgment, was entered on 03.06.74forthe
plaintiffs-respondents. The 1st respondent-petitioner appealed to theSupreme Court and the same was dismissed on 20.06.77. ‘ ‘Theplaintiffs-respondents then applied for execution of decree andpossession was given to them by the Fiscal on 4.9.78. Thereafter theplaintiffs-respondents were ousted from the land by 2 others at theinstigation of the 1st respondent-petitioner, and the' 1strespondent-petitioner was dealt with for contempt of Court and orderedto pay as costs of inquiry Rs. 100/-, and Rs. 50/- as crown costs foracting in disrespect .of the court. Further, it' was ordered that the
Before:
Counsel:
Argued on:Decided on:
Tambiah, J. & B.E. De Silva, J.
C. Cheilappah withS. NavaratnamfortheDefendant-1 st Respondent-Petitioner.
Shanmugalingam with K. Thevarajah.for the Plaintiffs-Respondents
08.12.1981
22.01.1982
Cur. adv. vult.
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plaintiffs-respondents be placed in possession and on a writ ofpossession issued to the Fiscal, possession was delivered to theplaintiffs-respondents on 20.06.79.
On 14.08.79, the plaintiffs-respondents rpgc^ an application unders. 325 of the Civil Procedure Code and,. complained that the 1strespondent-petitioner and the said Kanapiathipillai Thamotherampillaihad on 17.07.79 prevented them from possessing and cultivating thesaid land and prayed that notice be issued on the said 2 persons toshow cause why they should not be punished for contempt of Court,that they be placed in possession and that writ of possession bereissued to the Fiscal. The journal entries in the case show that the1st respondent-petitioner was served with notice and also that noticeswere published in the Elanadu Newspaper and on the Notice Boardof the Court House. Attomey-at-Law for the said K. Thamotherampillaistated to Court that notice was not served on his client. However,statements of objections were filed by the 1st respondent-petitionerand the said Thamo'tHerampillai and they participated in the inquiry.After inquiry, the learned District Judge, by his order dated 30.10.80,rejected their objections and held that they have acted in disrespectof the authority pf the Court and imposed on them the aforesaidpunishment.
The application in revision is dated 05.12.80, but I find that' writof possession was reissued to the Fiscal and he has executed thesame and had delivered possession of the land to theplaintiffs-respondents on 19.11.80.
The 'main submission of learned Counsel for the petitioners is thatihs dealing’ with" the petitioners'for cb'nfempt of Court, the DistrictJudge ought td‘ have followed the summary procedure laid down inChapter LXY of the Civil Procedure Code, and his failure to do sois a fatal objection to a conviction under s. 326 of the Civil ProcedureCode. I am inclined to agree with this submission.
S.325 of the old Civil Procedure Code'provided that where theofficer charged with the execution of the writ is resisted or obstructedby any person, or if after the officer has delivered possession, thejudgment-creditor is hindered by any'person in taking complete andeffectual possession, the judgfrient-creditor may, at any time within1 month from the time of such resistance or obstruction, complain
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thereof to th'e Court !by a petition in which the judgment-debtor andthe person resisting' !aftd obstructing shall be named respondents, andwhich shall be dealt with by Court in accordance which the alternative
of s. 377. When the matter is inquired into, the . Court has tomake one of the orders set out in sections 326,'327 or 327A. Interms of s. 326, if the Court is satisfied' that the obstruction orresistance complained of was occasioned by the judgment-debtor orby some person at his instigation, it may commit the judgment-debtoror such other person to jail for a term which may extend to 30days, and direct the judgment-debtor to be put into possession ofthe property.
An examination of the provisions 325 and 326 of the old CivilProcedure Code reveals:- (1) the penal provision of s. 326 appliedonly to resistance to or obstruction of, the officer charged with theexecution of the writ and not to the offence of hindering ajudgment-creditor from taking complete and effectual possession, afterthe officer has delivered possession. (2) the obstruction or resistancereferred to in s. 326 Was not declared to be punishable as a contemptof Court. (3) the procedure prescribed in s. 325 was a petition bythe judgment-creditor complaining to Court of resistance, obstructionor hindrance and not the procedure prescribed in Chapter LXV ofthe Code. The Court in inquiring into the complaint Was empowered,if the obstruction or resistance was occasioned by the judgment-debtoror by some person at his instigation, tb comimit the person to jailand to order delivery of possession. As was observed by Sir AntonBertram, in Kumarihamy v. Banda (i C.L. Rec. 54),-
“The obstruction, resistance, or hindrance referred to in s. 326is not declared to be punishable, as a contempt of court.Further, the special procedure prescribed in that section, namely,the petition of complaint, is not: consistent with the procedurewhich is prescribed in Chapter 65, which is initiated by asummons”
It was held in Pereira v_ Aboothahir (37 NLR 163) that where a,person has been given complete and effectual poss ession of premisesby the Fiscal, the remedy under s. 325 of the Civil Procedure Codeis not open to him in respect of a subsequent interruption ofpossession, and that he must seek bis remedy in the Courts in the."ante way as any person who complains of having been ejected from
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the property which belongs to him. But the Court has power unders. 287 of the Code to cause the writ holder to be restored topossession (See Silva v Bastian – 38 NLR 277).
The Civil Procedure Code (Amendment) Law No. 20 of 1977repealed sections 325* to 330 and substituted new sections. The newsubstituted s. 326 (1) reads-
326(1): On the bearing of the matter of the petition and of
the claim made, if any, the court if satisfied –
that theresistance,obstruction,hindranceorouster
complained of was occasioned by the judgment-debtor orby some person at his instigation or on his behalf,
that .theresistance,obstruction,hindranceorouster
complained of was occasioned by a person other than thejudgment-debtor, and that the claim of such person to bein possession of the property, whether on his own accountor on account of some person other than the judgment-debtor,is frivolous or vexatious, or
that the claim made, if any, has not been established,shall direct the judgment-creditor to be put into or restoredto the possession of the property and may, in the casespecified in paragraph (a) in addition deal with thejudgment-debtor or such other person in the manner providedby law for the punishment of contempt of court.
A new s.330 was also introduced to deal with any subsequentresistance, obstruction, hindrance or ouster. It enacts:-
330. Any subsequent resistance, obstruction or hindrance tothe execution of the writ or ouster of the judgment-creditorwithin a year and a day of the delivery of possession maybe dealt with summarily as for a contempt of court.
Thus 2 changes were effected – (1) the penal provision of the news.326 was extended to cover not only resistance or obstruction tothe Fiscal, but also hindrance to or ouster of, the judgment-creditor,after delivery of possession to him. (2) the obstruction, resistance,hindrance or ouster became offences punishable us contempts of Court
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In the instant case, there has been a subsequent interruption ofpossession, after possession was delivered to the plaintiffs-respondentson 20.6.79 The learned District Judge ought to have treated theapplication of the plaintiffs-respondents as one made under s.330 andcomplied with the provisions of sections 793 and 796 in ChapterLXV of the Civil Procedure Code before the defendants-petitioherswere punished for contempt of Court, viz. summons in the form.No. 132, in the 1st schedule or to the like effect should have beenissued and the hearing should have been commenced by asking theaccused whether or not he admits the truth of the charge. Theseare imperative provisions which must be complied with for a trialto commence and failure to comply with them, renders the convictionan invalid one (See Fernando v Fernando – 71 NLR 344). 1 holdthat there has been no inquiry according to law and accordingly theconviction of the 1st respondent-petitioner must be quashed.
The Civil Procedure Code (Amendment) Act No. 53 of 1980 madefurther amendments to sections 326 and 330. By s. 10 of the AmendingAct, the old penal provision of s.326, prior to L.aw No. 20 of 1977.has been restored, s.326 (1) (c) now reads as follows: –
“shall direct the judgment-creditor to be put into or restoredto the possession of the property and may. in the case specifiedin paragraph (a) sentence the judgment-debtor or such otherperson to imprisonment for a period not exceeding 30 days. "
The resistance, obstruction, hindrance or ouster are no longeroffences punishable as contempts or Court, and there is now norequirement therefore, to follow the procedure prescribed in ChapterLXY of the Code. However, with certain changes, s. 330 has been .retained, declaring any subsequent resistance, obstruction etc., anoffence punishable as a contempt of Court.
Learned Counsel for the plaintiffs-respondents cited Maxwel(Interpretation of Statutes, 11th Edn. at p. 216) and submitted thatstatutes affecting procedure have retrospective operation; that evenif the correct procedure under Law No. 20 of 1977 was not followed,yet the amending Act of 1980 applies to the resistance or obstructionto the execution of the decree by the 1st respondent-petitioner andthe said Thamotherampillai, and therefore justified the punishmentimposed on them.
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I am unable to accept this submission. The proceedings in theinstant esse .-commenced on 14.8.79, and the impugned order, afterinquiry;-was-delivered on 30.10.80. Act No. 53 of 1980 passed intolaw, on 11.12.80. The law that amended the law relating to procedureoperates ! retrospectively only means the pending cases, althoughinstituted-under, the old Act but still pending, are governed by thenew procedure under the amended law (See Bindra on “Interpretationof- Statutes”, 6th Edn. p. 751). The new procedure also applies toactions in the future, but not to concluded cases. To accept thelearned Counsel’s submission would mean that .the wrong procedure,already applied /.and concluded . before . the amendment came intoforce, now becomes good and legal under the new procedure afterthe .amendment. However, as I stated earlier, the instant case is oneof subsequent interruption of possession, after possession was deliveredto the plaintiffs-respondents, which,, even under the amending Actof 1980, still remains an offence punishable as a contempt of Court(s. 330). I
I set aside the conviction of the 1st respondent-petitioner, and thesentence of imprisonment imposed on him and discharge him. Thesaid Kanapathipillai Thamotharampillai is not a party to this application,but I think he is entitled to the benefit of my judgment. I thereforeset aside the conviction and the fine of Rs. 250/- imposed on himalso. The order placing the plaintiffs respondents in possession ofthe land, however, will stand.
E. DE SILVA. J. — I agree.
Appeal allowed. Convictions set aside