Pereira v. Aboothahir.
1935Present: Garvin S.PJ. and Maartensz A.J.
PEREIRA v. ABOOTHAHIR.
60—D. C. (Inty.) Badulla, 4,652.
Writ of possession—Complete and effectual possession given by Fiscal—Subse-quent interruption—Remedy—Civil Procedure Code, s. 325.
Where a person has been given complete and effectual possession ofpremises by the Fiscal, the remedy under section 325 of the CivilProcedure Code is not open to him in respect of a subsequent interruptionof possession.
^^PPEAL from an order of the District Judge of Badulla.
H. V. Perera, for respondent, appellant.
Tiyagarajah, for purchaser, respondent.
1 (.1911) South African Law Reports, Appellate Division 73.
GARVIN SJP.J.—Pereira v. Aboothahir.
January 22, 1935. Garvin S.P.J.—
In execution of a judgment against the first of the two appellantscertain prebnises bearing assessment No. 900a, situated at Lower street,Badulla, were seized and sold. At the sale the premises were purchasedby one V. K. S. Aboothahir. *On November 4, 1932, Aboothahir obtaineda Fiscal’s conveyance in his favour. On December 2 he obtained anorder for delivery of possession. On the 17th of that month he wasplaced in possession of the premises by the Fiscal. He complains toCourt in a petition dated January 14, 1933, that on that day after hehad been given possession of the premises by the Fiscal, who on thatoccasion had ejected the second appellant from the premises, he forciblyre-entered some time later and has since been in occupation of thepremises. He therefore prayed that he be placed in effectual possessionof the property. The petition does not state under what provision of theCivil Procedure Code the application was made but it appears, judgingfrom the proceedings in the Court below, to have been treated as a com-plaint under section 325 of the Civil Procedure Code, and that is the basisupon which we were invited to consider the matter here in appeal bycounsel for the purchaser. The learned District Judge held an inquiryinto the petition and made order directing that writ be reissued and thatthe respondents to the petition should pay the petitioner’s costs. Theyohave now appealed.
It is to be noticed that on the averments made by the petitioner him-self both in his petition as well as in the course of his evidence that theFiscal,succeeded in ejecting from the premises the second appellant whoat the time was in occupation and that the petitioner was placed incomplete possession of every part of the premises. The door was thenlocked and the key was handed by the Fiscal to the petitioner who electedto take the key and go away. About two hours after this Karuppiahthe second appellant returned and succeeded in re-entering and gettinginto occupation.
Now the first point taken by counsel for the appellants is that theprovisions of section 325 do not contemplate or apply to such a case asthis. That section contemplates a complaint in any case in which“the officer charged with the execution of the writ is resisted orobstructed by any person, or if after the officer has deliveredpossession the judgment-creditor is hindered by any person in takingcomplete and effectual possession ”. ,The first part of that provisionclearly does not apply, for there is no suggestion here that therewas any resistance or obstruction to the Fiscal. The second part con-templates a complaint being made in a cage in which after the officer hasdelivered possession the judgment-creditor is hindered in taking completeand effectual possession. The language read as a whole indicates to mymind that the hindrance contemplated is the hindrance to the taking ofcomplete and effectual possession by the judgment-creditor in a case inwhich-the officer charged with the execution of the writ had deliveredpossession but had not delivered complete and effectual possession ofevery part of the property. This is not therefore a case which comeswithin the words referred to. Where it is clear-that a person has beengiven complete and effectual possession, then in respect of any interruption
GARVIN SJP.J.—De Silva v. Juxoa.
of his possession thereafter he must seek his remedy in the Courts in thesame way as any person who complains of having been ejected fromproperty which belongs to him.
Since these considerations are decisive of the appeal it is unnecessaryto consider numerous other objections which have been taken, of whichI would briefly refer to the objection that in view of the decision in Silva v.Silva the remedy under section 325 is not available in a case such as thiswhere we are concerned, not with a decree for possession but with an orderfor delivery of possession. The difficulties of construing the provisions ofthe group of sections of which section 325 is one have been noticed in severaljudgments of this Court and attention specially drawn to the unsatisfactorystate of the law in the case of Daniel v. Rasiah I can only repeat oncemore what I said there, that if the law is to be placed upon a satisfactorybasis it seems to me that it must be by the intervention of the legislature.
The order under appeal is set aside and the petition will be dismissedwith costs both here and below.
Maartensz A.J.—I agree.
PEREIRA v. ABOOTHAHIR