MUNIDASA & OTHERS
COURT OF APPEALJAYASINGHE, J.
A. 698/97 (REV)
C. KURUNEGALA 2903/PNOVEMBER 17, 1999MARCH 23, 2000JANUARY 15, 2001
FEBRUARY 20, 2001r
Partition Law 21 Of 1977, S.52(1), S.53(l), S.77, 79 – Civil ProcedureCode S.325, S.226 (l)b – Cassus Omissus – Order for delivery ofpossession in a Partition Action – applicability of the provisions of theCivil Procedure Code.
The question arose as to whether a party to a Partition Action who wasallotted a lot could proceed under S.325 C.EC. without resorting to thespecific provisions under S.52(l) and S.53(l) of the Partition Act.
The Partition Law provides a specific remedy, the Plaintiff Respondentis not entitled to resort to provisions of the Civil Procedure Code.Provisions of the Partition Act are mandatory provisions and providesa simple and easy remedy of obtaining delivery of possession.
The provisions of the Civil Procedure Code could be made use of asregards the formalities of execution of writs etc., but regarding thedelivery of possession of land to parties and purchasers, applicationshould be made under S.52 of the Partitioh Act.
APPLICATION in Revision from the order of the District Court ofKurunegala.
Cases referred to :
Samarakoon vs. S.M. Punchi Banda – 78 NLR 525.
Esabella Ferera vs. Emalia Perera Hamine – 1990 1 SLR 13.
Lakshman Perera for Defendent – Petitioners – Petitioner.
Rohan Sahabandu for Plaintiff – Respondent – Respondent.
Cur. adv. vult.
Munidasa & Others v. Nandasena
Febuary 20, 2001JAYAWICKRAMA, J.
This is an application to revise and set aside the order ofthe learned District Judge dated 14.08.1997. The learnedDistrict Judge by his order has allowed an application made bythe Substituted-Plaintilf under Section 325 of the Civil ProcedureCode and made order that the Substituted-Plaintiff be placedin possession of the subject matter under Section 326(1) (b).
The Question to be decided in this case is whether a partyto a partition action who was allotted a lot could proceed underSection 325 of the Civil Procedure Code without resorting tothe specific provisions under Section 52(1) and Section 53(1)of the Partition Act.
By final decree dated 21.07.1997 the Plaintiff-Respondentwas allotted Lot 2 in final plan No. 4223 dated 28.05.1976 inD.C. Kegalle Case No. 2703/P. Lot 1 was allotted to theSubstituted- 1st Defendant and pro rata costs estimated at Rs.2438. 84 had to be paid by the 1st Substituted-Defendant tothe Substituted-Plaintiff. The 1st Substituted-Defendant did notpay the costs awarded and writ was applied for and issued andthe aforesaid Lot 1 was seized in execution. Thereafter the saidLot 1 was sold by public auction and at the fiscal sale theSubstituted-Plaintiff purchased Lot 1. 30 other persons whowere interested in the corpus challenged the auction sale andmoved the Court to invalidate the sale. After inquiry on12.02.1996 the Court dismissed that application. 3 out of the30 persons who challenged the auction are the 2nd, 3rd and 6thPetitioners to this application.
Thereafter on 14.04.1996 by the fiscal conveyance 103,the aforesaid Lot 1 was transferred to the Substituted-Plaintiffin terms of Section 286( 1) of the Civil Procedure Code and theSubstituted-Plaintiff moved Court under Section 52( 1) of thePartition Act for an order of delivery of possession. The Courtissued a writ and when the fiscal sought to take over possessionon 15.07.1996, the Petitioners objected to the taking over of
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 2 Sri L.R.
possession and resisted the fiscal. The fiscal filed his Report on15.07.1996 and the Plaintiff-Petitioners thereafter within amonth form 15.07.1996 moved Court under Section 325(1) toobtain possession as per journal entry 60. The Court afterinquiry made order under Section 326(1) on 14.08.1997directing the fiscal to place the Plaintiff in possession and thePetitioners have moved this Court in revision to set aside thatorder.
The learned Counsel for the Defendant-Petitionerssubmitted that the District Court had no jurisdiction to entertainan application under Section 325 of the Civil Procedure Code,in view of the mandatory and specific provisions set out in thePartition act. He further contended that as the particularapplication for execution of writ has been made in terms of theCivil Procedure Code, the said application is bad in law. Hefurther submitted that the Court had power in terms of Section53(1) of the Partition Act to enforce the order of delivery ofpossession to any person entitled thereto, in this instancenamely, the Plaintiff-Respondent.
The learned Counsel for the Plaintiff-Respondent submittedthat as Section 77 of the Partition Act states that the procedureto be followed in the execution stage is as governed by theprovisions of the Civil Procedure Code, that one could resort tothe procedure laid down in Section 325 on wards. He furthersubmitted that when an application is made under Section 52for an order of delivery of possession, it has not laid down, theform the said order emanating from Court should take eventhough in the schedule to the Partition Act, the forms are specifiedin respect of Section 12(2); Section 15(2); Section 16; Section18(l)a; Section 19(3); Section 28, Section 32 and Section 46.The learned Counsel contended that the form issued underSection 52 should be the form provided for under Section 287( 1)and the enforcement would be under Section 287(c) of the CivilProcedure Code. He further contended that the cassus omissusSection 79 of the Partition Act comes into operation in such asituation and therefore one has to follow the procedure laid down
Munidasa & Others v. Nandasena
in the Civil Procedure Code. The learned Counsel for thePlaintiff-Respondent further submitted that as the Petitionershave submitted to the jurisdiction without taking all thesespecific issues cannot now be heard to object to the jurisdictionand in any event the District Court had jurisdiction to look intothis matter and the parties were heard, and no prejudice couldbe caused, in fact, if Section 53 proceedings were instituted, hewould have been fined for contempt of Court whereas underSection 325 of the Civil Procedure Code it would not betantamount to contempt of Court in the first instance. He furthersubmitted that the Petitioner had stood to gain an advantagewhen the Respondent resorted to procedure under Section 325of the Civil Procedure Code. Learned Counsel contended thatSection 53 of the Partition Act is not an adequate relief whichstands upon the principles that are found in justice andconvenience and when Section 53 is silent as it does not statethat, it is the only Section that could be resorted to, in case ofresistance to an order of delivery of possession, and Section 53only gives “the power to a Court", being an enabling section, itis the only remedy available, and the other more convenientremedies in the Civil Procedure Code are excluded, and as itaccepted ‘semper in dubiis benigniora preferenda’ – alwaysin doubtful matters the more beneficial constructions shouldbe preferred. He further contended that every procedure ispresumed to be valid unless expressly stated that it is not valid.
In view of the foregoing submissions this Court has toconsider the validity of the order for delivery of possession uponwhich the Plaintiff-Respondent could be justified.
In Samarakoon Vs. S.M. Punchi Banda111 it was held thatthe provisions of Section 337 of the Civil Procedure Code donot apply where a party to a partition action applies to Courtfor an order to put him in possession of the lot allotted to himin the final decree. The correct procedure that should beadopted is set out in Section 52 of the Partition Act.
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Udalagama, J. held:-
“And under Section 53 a Court exercising its jurisdictionin a partition action has full power to give effect toevery order made in the action including the power toorder delivery of possession of any land or portion ofland to any person entitled thereto and to punish asfor contempt Court any person who disobeys any suchorder. These sections are in my view, compendiousenough, to give effectual possession to a party, whohas been allotted shares in a final decree. There is,therefore no necessity to resort to the provisions,dealing with execution proceedings, in the CivilProcedure Code
As there provision for the taking of possession of a lotdeclared in a final partition decree, there is nonecessity to resort to the provisions of the CivilProcedure Code and Section 79 of the Partition Act. Ifthe fiscal is resisted, he will report the resistance toCourt and the procedure set out in Section 53 of thePartition Act will apply.
In the proceedings under Section 53, it will be open tothe party resisting, to satisfy the Court, that hisresistance did not constitute a contempt of the Court.This he Could do, for example by showing that he hadprescribed to the said lot after the final decree hadbeen entered, and the party applying for an order ofpossession under Section 52, had no right to be givenpossession of the land.”
In the above case, the Plaintiff-Appellant made a secondapplication for an order for delivery of possession of the lots towhich he was declared entitled to in the final decree after 10years of the first application. This application was refused bythe learned District Judge upholding that Section 337 of theCivil Procedure Code applied. In view of the conclusion that
Munldasa & Others v. Nandasena
Section 337 of the Civil Procedure Code does not apply to anapplication under Section 52 of the Partition Act the order wasset aside. In the instant case the Substituted-Plaintiff who wasentitled to Lot 2 became the owner of Lot 1 which was allottedto 1st Defendant by a fiscal sale and he became the owner ofboth Lots 1 and 2. As both these lots are part of the corpus ofthe partition action, the only remedy available to the Substituted-Plaintiff is to proceed under Section 52 of the Partition Act.
In Esabella Perera V. Emalta Perera Hamine(2> S.N. Silva,J. (as he was then) observed that in a Partition Action, wherethe respondent has been in occupation of a house as a tenantand was evicted upon an order for the delivery of possession,“his case comes squarely within the ambit of Section 52(2) ofthe Partition Law. ”
Under that section “every party to a partition actionwho has been declared entitled to any land by anyfinal decree entered under this law and every personwho has purchased any land at any sale held underthis law and in whose favour a certificate of sale inrespect of the land so purchased has been enteredby the Court, shall be entitled to obtainfrom the Court,in the same action, on application made by motion inthat behalf, and order for delivery to him ofpossessionof the land. ”
As the above provisions of the Partition Law provides aspecific remedy, the Plaintiff-Respondent is not entitled to resortto provisions of the Civil Procedure Code. Provisions of thePartition Act are mandatory provisions and provides a simpleand easy remedy of obtaining delivery of possession.
As far as Section 77 of the Partition Act the provisions ofthe Civil Procedure Code could be made use of as regards theformalities of execution of writs etc., but regarding the deliveryof possession of land to parties and purchasers, applicationshould be made under Section 52 of the Partition Act.
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Section 52(a) of Act No. 17 of 1997 not only protects theinterest of a person who has directly obtained title from a decreebut also persons who have derived title from such person. Aperson who is dispossessed within 10 years of the final decreeis entitled to make an application by way of petition in the sameaction in which the decree was entered seeking the restorationof possession.
Hence I set aside the order of the learned District Judgedated 14.08.1997.
As this being a partition action the Plaintiff-Respondent isentitled to proceed under Sections 52 and 53, if he wishes toobtain delivery of possession of the land, and it will be open tothe Defendant-Petitioners to take up any defence they choosesshould proceedings be initiated under Section 53 of the PartitionLaw. Application for revision is allowed with costs fixed atRs.2,500/- payable by the Plaintiff-Respondent to the Defendant-Petitioners.
JAYASINGHE, J. – I agree.
MUNIDASA & OTHERS v. NANDASENA