KANNANGARA v. PERIES

017-NLR-NLR-V-30-KANNANGARA-v.-PERIES.pdf


( 78 )
1928.
Present: Drieberg A.J.
KANNANGARA v. PERIES.119—P. C. Panadure, 13,017.
Obstructing Public Servant—Partition action—Writ of possession—Resistance—Notice of unit—Penal Cods, s. 183.
The accused was charged with resisting a Fiscal's Officer inexecuting a writ of possession issued in pursuance of a decreeentered in a partition action to which the accused was not aparty.
Held, that it was no defence to the charge that the requirementof section 347 of the Civil Procedure Code with regard to the noticeof execution-was not complied with
Hadjiar v. Mohamadu' followed..
A
PPEAL from a conviction by the Police Magistrate, Panadure.The facts appear from the judgment.
J. S. Jayeivardene, for 1st accused, appellant.
April 30,1928. Drieberg A.J.—
In a partition action, D. C., Kalutara, 10,765, a decree for parti-tion was entered on November 15, 1923, allotting an allotment Bto the plaintiffs. On August 11, 1927, the plaintiffs applied forexecution of the decree by being placed in possession of the portionallotted to them. Enforcement of the writ was asked for againstthe 1st, 2nd, and 3rd defendants in the action. On August 31,1927, the court issued a writ of possession, no returnable datebeing stated on it. On September 24, the Fiscal’s Officer went tothe land to execute the writ but was unable to do so owing to theresistance offered by the appellant and two other accused. The
(1917) 4 C. W. R. 371,
( 79 )
Fiscal's Officer charged them with resistance to a public officer,under section 183 of the Penal Code. They were convicted andeach was sentenced to pay a fine of Rs. 10. The appeal is by the1st accused alone.
The point of law-certified in the petiton of appeal is that the- writ was bad on the ground that no notice of the application forexecution had been given as required by section 347 of the CivilProcedure Code, the application being made more than a year afterthe decree. I shall deal with this point later.
Mr. Jayewardene, for the appellant, contended that the writ wasillegal, as no writ of possession could issue to place in possession aperson to whom a portion in severalty had been allotted under adecree for partition. The case of Hadjiar v. Mohamadu,1 whichis a judgment of two Judges, is an express authority to the contrary,but Mr. Jayewardene argued that this judgment must be consideredas overruled by the Full Bench decision in Fernando et ad. v.Cadiravdu,2 in which it was held that where in an action under thePartition Ordinance a sale has been decreed the Court cannot makean order for delivery of possession in favour of the purchaser. Ofthe two Judges who were of this opinion, Schneider J. recognized adistinction on this point between a decree for partition and onefor sale, and was of opinion that a decree for partition allowed theconstruction given to it in Hadjiar v. Mohamadu (supra). Garvin J.said that it was unnecessary to consider whether Hadjiar v. Moha-madu was rightly decided. In these circumstances I must regardmyself as bound by the ruling in Hadjiar v. Mohamadu. Whetherthe point of law certified in the petition of appeal was raised in theCourt below is not clear on account of the unduly abbreviated andcondensed record made by the Police Magistrate. The contentionis recorded in these terms :—
“ Mr. Goonetilleke, for accused, states writ is bad—not re-issuedafter one year—and that decree does not bind accused.’ ’
The judgment disposes of the matter thus :—
" Mr: Goonetilleke puts in a copy of the decree and states nonotice served on the accused. I am of opinion that nonotice is necessary in a case like this—decree in a partitionaction.”
The Proctor for the appellant, in his application for the pro-duction of the record of the partition case, stated that it was required“ to prove that the period of the writ had expired and also to provethat the accused are not the defendants in the partition action.”
It will be seen that the only reference to a notice is that foundin the judgment, but what notice is referred to is not clear , and ifthe notice required by section 347 of the Civil Procedure Code .was
1 (1917) 4. C. W. R. 371.* (1927) 28 N. L. R. 492.
1928.
Dkikbebo
A.J.
Kannangara«. Peris
( 80 )
1888. meant, I cannot see how the Proctor for the accused sought to makeB.rt.nn a point of its not having been served on the accused, for that sectionA.J. only requires notice on the judgment-debtor, that is to say, theKarmangara party or parties to the action against whom the decree is sought«• Periee to be enforced.
There is nothing on the certified copy of the application to showthat notice of it was served on the parties to the action; I see,however, that though the appliction is dated August 11, the orderallowing it was not made until August 22. But assuming thatthe application was ex parte, I do not think that this will avail theappellant as a defence.
Mr. Jayewardene contended that the writ issued without thenotioe required by section 347 was void for want of jurisdiction andwas therefore an illegal process which the appellant was justifiedin resisting. He referred me to the case of Sahdeo v. Ghaairam1where it was held that execution proceedings following on anapplication allowed without the notice required by section 248 ofthe Indian Code, which corresponds to section 347 of our Code, wasvoid; but this was so held in an application by the judgment-debtor to have the execution proceedings including a sale of hisproperty set aside on the ground that he had no notice of theapplication.
I have not been able to get the report of the Privy Councildecision in Ragunath Das v. Sundar Das,2 which is noted in Mulla’sCivil Procedure Code as approving of the judgment in GopalChander v. Gunamoni Dasi.3 In the latter case the objectionto want of notice was taken by the legal representative of thejudgment-debtor, who was himself entitled to notice.
Notice is required in the interests of parties against whomexecution is sought, and the absence of notice makes the executionproceedings void as against them and not merely voidable, but Ido not think they can be regarded as void as against persons notparties to the action and who were not entitled to notice. In thiscase the accused, so long as the partition decree stood, could have.raised no objection to execution of the writ of possession; in fact,it was stated by their Proctor that they relied on the question oflaw only.
The writ of possession was not put in evidence and I called forthis. It was not sent to me until after the Court had closed for thevacation.
I dismiss the appeal.
Appeal dismissed.
1 {1894) 21 Cal. 19.2 (1914) 411. A. 251; 42 Cal. 72.
» (1982) 20 Cal. 370.