Kamagiri v. Karonehihamy
1972Present: Alles, 1., and WljayatUake, J.MAH ANT SWAMY RAMAGIRI, AppeUant, and H. V. KARONCHI-HAMY and another, Bespondenta8. C. 3/1967 (F)—D. 0. BaduUa, 2536/LCivil Procedure Code—Section 325—Execution o] proprietary decree—Hindrance ofjudgment-creditor from “ talcing complete and effectual possession "—Quantumof evidence.
A writ of possession in favour of the petitioner-appellant in respect of aboutsix acres of unfenced jungle land with a Kovil and a number of temporarysheds standing thereon was executed on 17th January 1964. He was delivered
ALbES. J.— Ramagiri v. Karonchihamy
possession of the buildings at about 4 p.m. that day. Immediately thereafter,at about 5 or 5-30 p.m.. the 4th respondent, who was not a party to the actionand had been warned by the Fiscal not to interfere with the petitioner'spossession, forcibly broke open the locks of the doors and took forciblepossession of the buildings and premises during the absence of the petitionerin circumstances when he was unable to take adequate steps to protect hispossession. The petitioner filed the present application three days later underSection 325 of the Civil Procedure Code.
Held, that tho petitioner was hindered from taking complete and effectualpossession of the promises as contemplated in Section 325 of tho Civil ProcedureCode. In such a case the shortness of the interval between tho delivery ofpossession and the disturl>anoe of possession is important.
A.PPEAL from a judgment of the District Court, Badulla.
G. Ranganathan, Q.C.. with N. E. Weerasooria, (Jnr.), for the plaintiff-petitioner-appella ut.
A. C. Gooneralne, Q.C.. with L. C. Seneviratne, for the 4th defendant-respondent.
Cur. adv. vult.
January 21, 1972. Allbs, J.—
The plaintiff-petitioner-appellant (hereafter referred to as the petitioner)who is the Trustee of Sri Thevanai Amman Temple, Kataragama, filedan action in the District Court of Badulla against the 1st to the 3rddefendant3-respondents for a declaration of title to Lots 1AB and 1 ACdescribed in the schedide to the plaint, and on 16th December 1963obtained decree by consent against them. According to the terms ofsettlement (4D2) and the journal entry of 16th December 1963, judgmentwas entered for the petitioner as prayed forand the 3rd defendant agreedto hand over possession of all the lands and buildings that constitutedthe subject matter of the action to the petitioner in the presence of theGrama Sevaka, Kataragama, on 10th January 1964. She also undertookto have a temporary shed that was occupied by a Buddhist monk (the4th respondent) demolished and peaceable possession handed to thepetitioner. In the event of the 3rd respondent fulfilling her obligationsunder the consent decree she was entitled to a sum of Its. 5,000, whichthe petitioner was to deposit in Court on or before 15th January 1964.The 3rd defendent failed to carry out her undertaking. The petitioneraccordingly took out writ of possession against the defendants on 15thJanuary 1964. The writ of possession was executed by the Fiscal on17th January 1964 and the petitioner was purported to be placed inpossession of Lots 1AB aud 1AC with the buildings standing thereon atabout 4 p.m. the same day. The petitioner’s complaint is that immediatelyafter he was placed in possession of the said Lots, the 4th respondent,who was not a party to the action, at about 5 or 5.30 p.m. the sameday forcibly broke open the locks of the doors and took possession of the
ALLES, J.—Ramagiri v.Karonchihamy
said Lots and buildings and continues to remain in unlawful possession.It was the submission of Counsel for the petitioner that his client hadbeen hindered from taking complete and effectual possession of the saidLots and buildings. The petitioner thereafter filed his petition underSection 325 of the Civil Procedure Code three days later, but the learnedtrial Judge, after inquiry, held on a preliminary issue of law, that theprocedure available under Section 325 was not available to the petitioner.The petitioner appeals from this order.
The Lots in question consist of about 6 acres of jungle land, unfenced,bordering the Menik Ganga and on the Lots there was a Kovil and anumber of temporary sheds thatched with cadjans. The Kovil consistedof a verandah and a shrine room with an asbestos roof and could belocked. This Kovil was situated about 4 miles from the main shrine atKataragama and access was through dense jungle!
According to the petitioner he went with the Fiscal and a Police officerabout 3 or 3.15 p.m. and obtained possession of the buildings. He couldnot go round the land because it was full of thorns. There was a pupilpriest in occupation of the kovil and the belongings of the pupil priestand the 4th respondant were taken out of the kovil and the petitionerwas given the keys. Poojas were performed in the shrine room and thepetitioner locked the kovil and placed one Selliah in charge and left thepremises about 4 or 4.30 p.m., as the petitioner and his party had totraverse through the jungle before darkness set in to reach Kataragama.About j mile from the land the petitioner met the 4th respondent and thepetitioner told the Fiscal to warn him not to create any disturbance asthe premises ha'd^been handed to him by the Court. The petitionerhowever learjnb^hel'same night, that the 4th respondent had forced openthe,'doors of "the kovil and taken forcible possession of the buildings and•premises. That same night he made a complaint to the KataragamaPolice and subsequently filed his petition under Section 325.
There is no dispute in- regard to the facts and the main question thathas been argued in the course of the appeal is one of law whether, in thecircumstances of this case, the petitioner obtained complete and effectualpossession of the said Lots and buildings within the meaning of Section325. The order for the delivery of possession issued to the Fiscal directedhim to place the petitioner in possession of the Lots and buildings describedin the schedule to the order. The Fiscal’s report was to the effect thathe delivered possession of the Lots to the plaintiff and that he evictedthe priest who was in occupation, put his belongings out of the buildingand thereafter gave possession of the Lots and buildings to the petitioner.Would the report of the Fiscal and the evidence led in the case be sufficientto indicate that the petitioner had taken “complete and effectualpossession of the premises ’’ ?
Section 325 of the Civil Procedure Code, in regard to resistance orobstruction to a judgment-creditor, contemplates two separate anddistinct acts—the delivery, of possession to the judgment-creditor by the
ALLIES, J.—Ramagiri v. KaTonchihamy
Fiscal and the hindrance by any person to the judgment-creditor takingcomplete and effectual possession. Our section differs from thecorresponding section of the Indian Code (Order XXI, Rules 97 and 98)which gives the right to the judgment-creditor or the purchaser ofproperty sold in execution of a decree to make an application in case ofobstruction or resistance and enables the Court, to give relief to thejudgment-creditor, if the Court is satisfied that the obstruction orresistance was occasioned without just cause. Our law has contemplated acompleteand effectual possession ” being taken by the judgment-creditor.The taking of “ complete and effectual possession ” must necessarily bemore comprehensive than the mere taking of possession. Would forinstance “ complete and effectual possession ” be satisfied if the Fiscaldelivers possession, hands over the keys of the building to the judgment-creditor and soon after he leaves the premises, the judgment-creditoris forcibly dispossessed by any person who is lurking in the backgroundand comes forward after the Fiscal has left ? Would the same positionarise if after the Fiscal has delivered possession and the judgment-creditorproceeds to the neighbouring house to meet somebody, any person whohas remained in concealment invades the house and dispossesses thejudgment-creditor ? Again take the case of a large estate where it isnot possible for the Fiscal to deliver possession of every part of the landexcept by giving symbolic possession of the keys of the factory or thesuperintendent’s bungalow. Would the judgment-creditor take completeand effectual possession, when a person living on the boundary of theproperty enters the estate, and continues to remain in occupation afterthe Fiscal has left the premises ? To permit this type of conduct on thepart of the judgment-debtor or some person acting on his instigationwould appear to amount to a mockery of the legal process. In thisconnection I am impressed by the observations of Lawrie, J. in Menikv. Hamy1 (1892) 2 Ceylon Law Recorder 145 ; 1 S.C.R. 332, where therewas resistance to the execution of a proprietary decree and the judgment-creditor was subsequently dispossessed :—
“ My inclination is to extend the powers of our Courts to enforcetheir decrees and when the obedience shown to the order of a Courtis proved by the subsequent conduct of the party, to have been apretended and not a real obedience, I would reissue the writ. When,for instance, a man against whom a decree in ejectment was given,makes no appearance on the day when the Fiscal Officer goes to putthe successful man in possession, but afterwards resumes the possessionin defiance of the decree, I am much inclined to the opinion that aCourt ought to have power to compel complete obedience to its decree,,and on due proof of dispossession that a fresh writ of possession oughtto issue. ”
' (1892) 2 0. L. Rec. NS ; 1 S. C. R. 332.
ALT.ES, J. —Hamarjiri v. Karonchihamy
Would there be any difference between the example given by Lawrie J.and the facts of this case where the 4th respondent was informed soonafter the delivery of possession that possession had been lawfully givento the judgment-creditor but the 4th respondent in defiance of the lawforcibly retook possession ? In Mehik v. Hamy the disturbance to thejudgment-creditor’s possession was several weeks after the judgment-creditor was placed in possession and both Lawrie and Withers JJ.held that the judgment-creditor was not entitled to proceed under Sections325 and 326. Both Judges, however, were inclined to take the viewthat had the hindrance been shortly after possession was delivered, thejudgment-creditor would have been entitled to relief. Said Withers J. :—
“ What is meant by ‘ taking ’ possession of a thing after it has been‘ delivered ’ is not quite apparent, but anyhow I think the attempt totake complete and effectual possession of that which has been butimperfectly delivered to the execution-creditor (a state of things Irepeat not very intelligible) should follow as instantly upon the so-called delivery as the circumstances of the case will permit, and that thehindrance is contemplated as occurring at that time and not at anytime after the delivery of possession. Taking cannot mean keepingpossession”
and Lawrie J. expressed himself in the following language :—
“ In cases where the decree holder is ejected soon after the Fiscalhas put him in possession he might, I think, complain to the Fiscalin order that his complaint might be reported to the Court in thereturn, but when, as in the present case, the disturbance or ejectmentcomplained of occurred several weeks after the plaintiff was put inpossession, the only remedy may be the very insufficient one of a newaction. I am inclined to treat with disfavour any rule of practicewhich renders judgments of Courts ineffectual.”
The principle accepted in Menik v. Hamy that the hindrance to the takingof complete and effectual possession, contemplated by Section 325 is ahindrance which takes place in connection with or immediately afterdelivery of possession by the Fiscal was followed by Bertram C.J. withwhom De Sampayo J. agreed in Kumarihamy v. Banda1 (1922) 1 CeylonRecorder 53 and by Schneider J. in Mohomado Lebbe v. Ahamad-o Ali 2(1922) 23 N. L.R. 406. In both these cases however the judgment-creditordid not obtain relief because the judgment-creditor came into Court longafter possession was delivered and consequently it was not open to him,in the circumstances, to maintain that he had not taken complete andeffectual possession. It would therefore appear from a considerationof the early cases that the vital question that arises for determination,as to whether the provisions of Section 325 apply, depends on thecircumstances of each individual case whether complete and effectualpossession was taken by the judgment creditor. The time element
1 (1922) 1 C. L. Bee. S3.
(1922) 23 N. L. B. 406.
AL.LKS. J.—Ramagin v. Karonchihamy
between the delivery of possession and the taking of possession is ofimportance but is not necessarily conclusive. In Pereira v. Aboothahir1(1935) 37 N. L.R. 163 the petitioner was placed in complete and effectualpossession of every part of the premises after ejecting the judgment-debtor therefrom. The door was then locked and the key was handed .by the Fiscal to the petitioner and the judgment-creditor accepted thatcomplete and effectual possession had been given to him. The petitionerthen elected to take the key and leave the house. About two hourslater the judgment-debtor returned and succeeded in re-entering thehouse and getting into occupation. Garvin S.P.J. with whom MaartenszA. J. agreed held that where a person has been given complete and effectualpossession of the premises by the Fiscal, the remedy under Section 325was not open to him in respect of a subsequent interruption of possession.Said Garvin S.P.J. in the course of his judgment :—
“ The language (of Section 325) read as a whole indicates to mymind that the hindrance contemplated is the hindrance to the takingof complete and effectual possession by the judgment-creditor in a casein which the officer charged with the execution of the writ had deliveredpossession but had not delivered complete and effectual possessionof every part of the property. This is not therefore a case whichcomes within the words referred to. Where it is clear that a personhas been given complete and effectual possession, then in respect ofany interruption of his possession thereafter he must seek his remedyin the Courts in the same way as any person who complains of havingbeen ejected from property which belongs to him.”
With respect, I am in agreement with the observations of Garvin S.P.J.in the above case. The premises, bearing Assessment No. 900A situatedat Lower Srteet, Badulla, were seized and sold and it was clear on theevidence that the judgment-creditor had taken complete-and effectualposisession of every part of the premises before he was dispossessed.Koch J. in De Silva v. Bastian2 (1936) 15 Ceylon Law Recorder 237seemed to think that the above pronouncement was in conflict with theviews expressed by the Judges in the earlier cases but this need notnecessarily be the case because the facts in the earlier cases can bedistinguished from the facts in Pereira v. Aboothahir (supra.) In thepresent case, even if it can be argued that possession of the Kovil wastaken by the petitioner, I do not think it is possible to maintain that hetook complete and effectual possession of the Lots in question. It ispertinent at this stage to draw attention to the observations of De SampayoJ. in Suppramaniam Chetty v. Jayawardena3 (1922) 24 N.L.R. 50 wherethat distinguished Judge held that in giving relief to a party seeking toobtain effectual possession, the District Court should not take a narrowview of its duty and power, and whatever the form of the application(i.e.„ whether it be under Section 325 or 287 of the Code) if it reasonablymakes clear the position of the applicant, the Court is entitled to cause *
1 (1936) 37 N. L. R. 163.* (1936) 15 C. L. See. 237.
* (1922) 24 N.‘ L. B. 50.
AX.LES, J.—Ramagiri „. Karonchihamy
the party resisting the execution of the writ of possession to be removedand the writ holder to be put in possession. Schneider J. agreed and thisview has been accepted by Garvin J. in Sedera v. Babahamy1 (1923) 1Times Law Reports 259 at 260. In De Silva v. Bastian 2 (1936) 38 N.L.R.277 the judgment-creditor was turned out within half an hour of beingput in possession by the judgment-debtors who were waiting outside theboundary wall until the fiscal’s officer took his departure. Koch J. withwhom Soertsz J. agreed, approved of the observations of De Sampayo J.in Suppramaniam Chetty v. Jayaivardene (supra) and gave relief underSection 287 of the Code as the application under Section 325 failed inlimine having been made out of time. In giving relief to the judgment-creditor in De Silva v. Bastian the learned Judges took an eminentlyreasonable view. As Koch J. remarked in that case
“What if the fiscal takes the judgment-creditor right round theboundaries of the land and after placing him formally in possession,enters his car and drives away, and the next minute the judgment-debtorwho is skulking behind one of these boundaries enters the land andbundles out the decree holder. Can it be reasonably said that thewrit of possession was duly executed ? I should certainly say notrfor to declare to the contrary would be to introduce a legal fictionwhich De Sampayo J. has deprecated.”
Would the position be any different, if after possession is delivered, thejudgment-debtor or someone claiming through him, is warned thatpossession has been lawfully delivered but in defiance of the law forciblyretakes possession ? De Sampayo J. expressed himself in strongerlanguage in .the earlier Full Bench case of Silva v. De Mel (1915) whichheld that Section 328 and the preceding sections applied not only to casesof dispossession in execution of proprietary decrees, but to orders fordelivery of possession under Section 287 as well. Tn that case De SampayoJ. stated as follows :—
“ I think that by the second paragraph of Section 287, which providesfor the enforcement of an order for delivery of possession to an execution-purchaser, the relevant provisions to the Code relating to enforcementof a decree for possession, including those of section 328, are madeapplicable. I am of this opinion all the more, because the wholescheme of the Procedure Code is to provide speedy and inexpensiveremedies, and it appears to me only reasonable to allow disputesarising from the execution of an order for possession in favour of apurchaser at a Fiscal’s sale to be inquired into and settled by themeans provided in section 328 instead of driving parties to a separateaction.”
If these observations had been brought to the notice of the learned trialJudge in this case, he might have given relief to the judgment-creditorand entertained his application under Section 325.
* (1923) 1 Times 259 at 260.
(1936) 38 N. L. R. 277.
ALI.Ks. J.—liamagiri v. Karonchihamy
In Nagamuttu v. Kumarasegaram1 (I960) 64 N.L.R. 214 Weerasooriya J.sitting single, followed the decision in Pereira v. Aboothahir (supra) in a-case where the judgment-creditor after being given complete and effectualpossession was dispossessed two days later. In both the above casesthe evidence would seem to indicate that, although the dispossession waswithin a very short time, complete and effectual possession had beentaken by the judgment-creditor. Learned Counsel for the 4th respondentrelied strongly on the decision of Basnayake C.J. in Jtahamath Umma v.Abdul Sameem 2 (1960) 63 N.L.R. 1. The petitioner in that case prayedthat they be declared entitled to an allotment of land in extent 15 cubitsin length, 20 cubits in width with a tiled house from and out of a dividedportion of a larger land. The petitioner’s application had to fail in liminebecause the learned Chief Justice found that the Fiscal was authorisedto execute a writ which was not in terms of the decree and was notauthorised by it. The officer charged with the execution of the writdid not say that he was resisted or obstructed by any person nor wasthere any evidence that after the officer delivered possession, the judgment-creditor was hindered by any person in taking complete and effectualpossession, although if it was done it would have been legitimate, as theFiscal’s action in ejecting the defendants from the land was illegal. Thedispossession took place 21 hours after the judgment-creditor had beenpurported to be placed in possession but the time element in any eventwould have been immaterial since the writ was not in terms of the decree.The learned Chief Justice then considers the effect of the words “completeand effectual possession ” in Section 325 of the Code and states asfollows, at p. 6 :—
“ In the case of execution of decrees for possession of immovableproperty the Fiscal is required to repair to the ground and there deliverover possession of the property described in the writ to the judgment-creditor or to some person appointed by him to receive delivery onhis behalf. Two acts are contemplated ; delivery over of possessionand receiving or taking of possession. Both acts are symbolic as thething itself in the case of immovable •property cannot as in the case ofmovable property be handed over to the recipient. The act of deliveryof possession falls to be performed by the Fiscal, and the act of takingof possession by the judgment-creditor or his agent. The section is■ designed to prevent the Fiscal from being resisted or obstructed inthe performance of his function and the judgment-creditor from beinghindered from performing his. These acts though performed bytwo parties are interdependent and by their very nature must take placeat the same time. There can be no delivery of possession by the Fiscalwithout the judgment-creditor receiving or taking possession. Themode of delivery and the mode of taking delivery vary with thecircumstances of each case and it will be unwise to endeavour to specifythe different modes of Buch delivery or of taking possession.”
> (1060) 64 N. L. JR. 214.
(I960) 63 W. L. JR. 1.
AI.I.ES, J.—Ramagiri v. Karonchihamy
These observations of the learned Chief Justice, though entitled to thegreatest respect appear to me to be obiter because the applications couldhave been decided on the preliminary point that the writ was not inconformity with the decree. Furthermore itappears to me that it doesnot necessarily follow that both “ the delivery over of possession andreceiving or taking of possession ” are acts that are “ symbolic ” or that
“these acts though performed by twro partiesby their very
nature must place at the same time.” To give this construction to thewords of the section does not appear to give proper effect to the words“ complete and effectual possession ”. While I agree that the act ofdelivery of possession of immovable property must be symbolic it doesnot necessarily follow that the taking of such property need be symbolic.The words “complete and effectual possession” connote that the judgment-creditor must be able to have complete control over every part of theproperty, possession of which is delivered to him. This cannot be donein the case of immovable property which consists of both land andbuildings by merely handing over the keys of the building. If this bethe construction that should be placed on these words the door will surelybe open to the abuses referred to in the earlier part of this judgment–and make the provisions of the law ineffectual. In Ounaratne v. A. J. M.de Silva,1 58 N.L.R. 542 writ of possession was issued on 21st Septemberbut was returned by the Fiscal with a report that the tenant was notin occupation and that the persons in occupation were Gunaratne andothers. The Court thereupon ordered constructive possession to bedelivered under Section 324 of the Code and possession was delivered■accordingly. On 26th November the plaintiff went to the premiseswith his Proctor for the purpose of taking effectual possession but wasobstructed by some persons one of whom was Gunaratne. Thereafteron 7th December (within one month of the alleged obstruction) theplaintiff applied for an order ejecting all persons in occupation andthe Court granted an interlocutory order presumably in pursuance ofSection 377 (b) read with Section 325. The present Chief Justice dealtwith the appeal of Gunaratne against the order of the Court and rejectedit. One of the arguments on behalf of the appellant was that the-application should have been made within one month of the date of the•constructive possession but the Chief Justice held that the complaintwas of hindrance after the date of the constructive delivery and fellto be made within one month of the hindrance. The complaint wasnot one of obstruction or resistance to the Fiscal’s officer but of hindranceto the plaintiff in obtaining effectual possession. The facts thereforewould indicate that it does not necessarily follow that in an applicationunder Section 325 the act of delivery by the Fiscal and the act of takingcomplete and effectual possession by the judgment-creditor should 1
1 (1957) 58 N. L. R. 542.
ALLEiS, J.—Ramayiri V. Karonchihamy
“ by their very nature take place at the same time”. In this context theaverment in the affidavit of the petitioner that he obtained possessionof Lots 1AB and 1AC together with the buildings thereon from the Fiscal—an averment which has been strongly stressed by the learned DistrictJudge—is per se not conclusive that complete and effectual possessionhad been taken over by the judgment-creditor.
In my view, if substantial justice has to be achieved and the process ofthe law not made ineffective, it is essential that the Court must examinethe realities of the application and consider on the facts of each casewhether complete and effectual possession has been taken by the judgmentcreditor. In the present case, I am of the view that the petitioner washindered from taking complete and effectual possession of the premisesand buildings described in the writ of possession. He had only a limitedtime to take possession because he had to get back to Kataragamabefore darkness set in ; it was not possible for him to traverse the entiretyof the jungle area which was unfenced and take possession of the Lots ,he was unable to take adequate steps to protect his possession and the4th respondent after being warned, presumably not to interfere with thepetitioner’s possession, chose to flout the law and render the legal processnugatory. For the above reasons I hold that the petitioner was hinderedfrom taking complete and effectual possession of the premises ascontemplated in Section 325. The order of the learned District Judgeis therefore set aside.
The District Judge in the concluding paragraph of his order has stated:that in view of the conclusion reached by him on the legal objectionsraised by the 4th respondent, it was not necessary to consider the 4threspondent's claim to bona fide possession of the property.
I accordingly direct him to entertain this application and in accordancewith the procedure set out in Section 325 et seq. of the Civil ProcedureCode consider the 4th respondent’s claim to bona fide possession of theproperty and thereafter make an appropriate order.
Since the petitioner has been dispossessed of his property from 1964,it is hoped that these proceedings will be concluded as expeditiously as-possible. The petitioner will be entitled to the costs in appeal and inthe Court below.
Wuayatilake, J.—I agree.
Order set aside,
MAHANT SWAMY RAMAGIRI, Appellant, and H. V. KAROCHIHAMY and another, Respondents