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PERERA v. BRAMPY et ail.
D. C., Colombo, 6,272.
Purchaser in execution of immovable property—Delivery of possession—Resistance to Fiscal—Claimby third party in good faith—Number-ing and registering purchaser's petition as a plaint.
A, a purchaser in execution of certain immovable property,obtained, under section 287 of the Civil Procedure Code, an orderon the Fiscal tor delivery to him of the property purchased. Inexecution of thi« order the Fiscal was resisted by B and C, whowere in possession of the property, and claimed it as their own. Athereupon petitioned the Court under seotion 325.—
Held, that if the Court found that the resistance had beenoccasioned by B and C claiming in good faith to ho in possessionof the property on their own account, A was entitled to have, hispetition numbered and registered as a plaint, and proceedings taken.thereon under seotion 327 ; but before the Court directed thepetition to be so numbered and registered, it should put on recordits distinct finding, if that be so, that B and C were claiming ingood faith to he in possession of the property on their own account.
fjpHE facts of the case appear in the judgment of Withers, J.
Pereira, for appellant.
Jayawardena, for respondents.
July, 1896. Withers, J.—
The appellant is a purchaser of certain lands at a Fiscal’s sale.The sale has been confirmed by the Court, and conveyance executedin pursuance of the sale. It does not appear that the Fiscal hadby himself or his agents taken possession of any of these landsbetween sale and execution. By section 292 the person in posses-sion of immovable property sold in execution is bound forthwith,on confirmation by Court and of execution of conveyance, to givepossession to the grantee in the conveyance.
The grantee in this case applied for a delivery order under section287. The Court granted the order, and in doing so no doubtjyrima facie satisfied itself that the lands in question were in theoccupation of the judgment-debtor (in execution of judgmentagainst whom the land had been sold), or of some person on hisbehalf, or of some person claiming under a title created subse-quently to the seizure of the property.
Such a delivery order may be enforced as an order falling underhead (c), section 217, the purchaser being considered as a judgment-creditor.
July 28and 31.
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1898.July 28and 31.
217 (c) relates to a decree or order of Court which cowinandsthe person against whom it operates to yield up possession ofimmovable property.
217 is the first section of chapter XXII. relating to execution.
Section 323 is the first of a series of sections relating to theexecution of a decree for possession of immovable property. Bythat 'section a writ of execution in form. 63 in Becond schedulemay be taken out by a decree holder, if the latter is satisfied' thqthe is entitled to obtain execution of his decree for possession ofimmovable property.'
324 prescribes how the Fiscal is to execute the writ of execution.
Section 325 and subsequent sections deal with resistance toexecution of proprietory decrees.
Beading sections 292 and 323 and 324 together, it looks as if adelivery order under 292 is to be executed as a writ of possessionunder section 323.
It would seem to follow that if a purchaser has the same rightas the holder of a decree for possession of immovable property tohave the purchased property in certain conditions delivered upto him, he should have in those conditions the same remedy if theofficer in charge of the order of delivery is resisted in his attemptlegally to enforce it. This rem'edy of a purchaser has been ques-tioned by my Lord the Chief Justice in the case SupramanianAyer vs. Chankare Pillai D. C., Jaffna,* and I shall certainly notnow decide the point.
The baffled purchaser in this case prayed that his unexecutedorder might be enforced by his being put into possession of thelands which were withheld from him by the third and fourthrespondents who had resisted the execution of his delivery order.
The District Judge, on the material before him, appeared to meto come to the conclusion that the resistance was not occasionedby the judgment-debtor or by the third and fourth respondentsat his instigation. I cannot say that he was wrong in so finding,but without more, he dismissed the purchaser’s petition..
The purchaser complains of this dismissal, and his counselurges that in the circumstances of the case he was entitled to anorder under section 327, directing that his petition of complaint,which has been dismissed, should be numbered and registered asa plaint in an action between the decree-holder (here purchaser,he being under section 287 considered as judgment-creditor) .asplaintiff and the resisting claimants respondents as defendants,and an inquiry into the hostile claim of the respondents and
* N. L. B., 19.
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decision $uch as that section contemplates. The appellant expectsto have a favourable decision, i.e., an order for the enforcementof his. delivery order under section 287. After hearing counsel
on both sides, I am satisfied that the appellant has made out Withkbs, J.a good case for his petition and the respondents’ claim being madethe subject of a trial and determination 'within the purview of section327 of the Civil Procedure Code. Order accordingly giving himhis costs of this appeal.
I have since seen my brother’s judgment, and I agree with himin thinking that before the District Judge numbers the petitionand proceeds under section 327 he should put on record his 'dis-tinct finding as to whether the fourth and fifth respondentsobstructed the order of delivery at the instigation of the judgment-debtor, or claiming in good faith to be in possession of the pre-mises on their own account.
July, 1896. Lawrie, J.—
My doubt is whether the learned District Judge has found thatthe resistance and obstruction was occasioned, by the fourth andfifth, respondents claiming in good faith to be in possession on theirown account.
I think a distinct finding to that effect should precede thedirection to number the petition of complaint as a plaint as isprovided by the 327th section.
My brother Withers reads the order of the District Judge as afinding that the resistance was not occasioned by the judgment-debtor’s instigation. I am not sure that the District Judge has sofound ; if he has, he will have no difficulty in making a more expressfinding on the facts: I quite agree that the dismissal of thepetition was a mistake; if the fourth and fifth respondents wereacting in mala fide at the instigation of the judgment-debtor, theyought to be sent to jail under section 326 ; if they claim in bonafide, and not at the instigation of the debtor, and if the purchaserthinks himself strong enough to undertake an potion for vindi-cation of the property, the petition should be numbered as a plaint,and the Court should proceed to investigate the claim.
I agree with my brother Withers. My only difference is thatbefore the District JucTge makes the order to number and registerthe petition, he should make distinct finding in fact as to thestatus and bona fides of the respondents in occupation.
July 22and 31,
PERERA v. BRAMPY et al