001-NLR-NLR-V-63-RAHANATH-UMMA-and-others-Appellants-and-ABDUL-SAMEEN-and-another-Respondents.pdf
THE
NEW LAW REPORTSOF CEYLONVOLUME LX IIIPresent: Basnayake, C.J. and K. D. de Silva, J.RAHAMATH UMMA and others, Appellants, and ABDUL SAMEEN
and another, Respondents
S. C. 2S4—D. C. Gampaha, 1478
Execution of proprietary decree—Civil Procedure Code, ss. 325, 326—•“ Hindered byany person in taking complete and effectual possession ”—Requirement of com-mittal tc jail.
Where, a short while (two and a half hours) after the judgment-creditors hadbeen completely and effectively placed in possession of immovable property inpursuance of a decree to yield up possession of the property, the judgment-debtors entered into possession again of the property—
Held, that tho judgment-creditors were not entitled to avail themselves ofthe provisions of section 325 of the Civil Procedure Code. The entry of thejudgment-debtors subsequent to the effective delivery of possession did notcome within the ambit of the second limb of the section which speaks of a casewhere the judgment-creditor is “ hindered in taking complete and effectualpossession
Held further, that, without an order of committal to jail, section 326 of theCivil Procedure Code does not empower the Court to direct that the judgment-creditor be placed in possession.
Appeal from an order of tlie District Court, Gampaha.
Sir Lalita Rajapakse, Q.G., with S. P. Wijewickreme, S. H. Mohamedand D. O. IK. W ickremusekera, for 1st to 3rd Respondents-Appellants.
A E. Weerasooria, Q.C., with W. D. Gunasekera, for PlaintifiFs-Respondents.
1—LXIII
2J. N. B 17697—2,033 (6/61)
Cur. adv. vult.
2
BASNAYAKE, C.J.—Rahamath Zimina v. Abdul Sameen
April 6, 1960. Basnayazb, C.J.—
This is an appeal in a proceeding under section 325 of the Civil ProcedureCode. Six persons, three of whom are minors, instituted an action inwhich they prayed that they be declared entitled to the following allot-ment of land, that the defendants be ejected therefrom, that they beplaced in possession thereof, and for damages :—
“ An extent of 15 cubits in length, 20 cubits in width with the tiledhouse from and out of that divided portion of about 2 acres describedin Schedule B hereof wiiich extent of ground borders the southernboundary is edged by a live fence on the north and is situated on thesouthernmost comer of the said divided portion of land described inSchedule B hereof.”
This land is a portion of a land called Mahawalauwewatte in extent 19acres and 5 perches according to a plan dated 4th December 1881 madeby D. I. S. Goonewardene, Licensed Surveyor, and described in ScheduleA to the plaint as bounded on the North by Pokunulanda and the ditchof the land belonging to Sir Solomon Dias Bandaranayake Mudaliyar ofHapitigam Korale, South by the live fence of the land of Siddi Lebbeand others, West by the footpath to Keragalawatta. The plaintiffsstate that it w'as amicably divided about 30 years ago and A. L. M. SalihuHadjiar wdio owmed an undivided 2/16 share entered into possession ofthe divided portion described in Schedule B to the plaint as boundedon the North by the portion of the same land of A. R. M. MohamaduLebbe, East by the field of Dias Bandaranayake Mudaliyar of HapitigamKorale, South by the live fence of the land of Siddi Lebbe and others,and West by the footpath to Keragalaw-atta and the land of A. L. M.Mubarak and containing in extent about twro acres twro roods and orapproximately 24 acres.
Judgment wras given for the plaintiffs as prayed for with damages asagreed upon. Decree was accordingly entered in their favour in thefollowing form :—
“ It is ordered and decreed that the plaintiffs be and they are herebydeclared entitled to that portion of land called MahawalamvewTattedescribed in Schedule hereto.
“It is further ordered and decreed that the defendants be ejectedtherefrom and the plaintiffs be placed in possession thereof.”
The schedule to the decree described the land as in Schedule C of theplaint.
. In the application for execution of the decree the plaintiffs’ proctordescribed the mode in which the Court’s assistance was required thus :—
“ By issue of writ of ejectment against the defendants to have themejected from the land described in Schedule B of the plaint.”
JBASjSTAYAKR, C. j.—Hahamath Utnma v. Abdul SameeujJ
and accordingly on 4th July 1956 the following writ was issued returnableon 4th September 1956 :—
“ Whereas by a judgment of this Court dated 25th day of February1954 in the above named action it was ordered and decreed that theplaintiffs be restored to possession of all that divided portion of landfrom and out of the land called Mahawalauwewatta situated at Wal-gama and morefuliy described in the Schedule hereto, and that thedefendants above-named be ejected therefrom.
“ These are to command you that without delay you enter sameand cause the said plaintiffs to have possession of the said land andpremises by ejecting the above named defendants or any one claimingunder them from the said land and putting the plaintiffs or theiragents in possession thereof.
“ And in what manner you shall have executed this writ may appearto this Court immediately after the execution thereof, and have youthere this mandate.”
The land was described in the Sohedule to the writ as follows :—
“ All that divided portion of land from and out of the land calledMahawalauwewatta situated at Walgama in the Adicari Pattu ofSiyane Korale in the District of Colombo, Western Province, andwhich divided portion is bounded on the North by portion of thissame land of A. R. N. Mohamadu Lebbe, East by the field of DiasBandaranayaka Mudliyar of Hapitigam Korale, South by the livefence of the land of Siddi Lebbe and others, and West by the footpath to Keragalamawatha, and the land of the heirs of A. L. M. Muba-rack, and containing in extent about two acres and two roods and orapproximately 2£ acres.”
The application for writ and the writ itself are not in accordance with thejudgment or decree. The decree was for ejectment of the defendantsfrom the land in Schedule C ; the writ is for their ejectment from theland described in Schedule B, which is a very much larger extent, andin the writ there is no reference to a tiled house.
On 26th July 1956 the Fiscal’s officer reported —-
“ I repaired on 7.7.56 to Walgama in Adicari Pattu of Siyane Koralein the District of Colombo, Western Province, to deliver over possessionto the plaintiffs all that divided portion of land from and out of theland called Mahawalauwewatta situated at Walgama morefuliy des-cribed in the annexed hereto writ but the possession thereof could notbe delivered as the doors of the house in the aforesaid land were closed.”
When this return was made the proctor for the plaintiffs moved on 7thAugust 1956 that the writ be reissued for execution and that the Fiscal’sofficer be authorised to break open the doors of the house if necessary.
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BASNAYAKE, C. J.—Rahamath TJimna r. Abdul Samcen
On 28th August 1956 after the inquiry into the Fiscal’s report x,heJudge made his order. In the concluding portion of it he said :
“ I therefore direct the Fiscal to force open the doors of the housestanding on the land in question in order that possession may bedelivered to the judgment-creditor. If there is any movable propertyin the building the Fiscal is authorised to make a list thereof andtake charge of the same. He will forward to this Court a list of suchproperty together with the names of any claimants thereof.”
On 11th September 1956 the Judge made the following endorsement onthe "writ :—
“ Extended and reissued for execution and return. Returnable on11.11.56.”
The writ itself does not contain the above quoted directions of the Judge ;but it would appear, from the minute in the journal of 12fch September1956, that a copy of the Judge’s order was sent to the Fiscal. On 27thSeptember 1956 the Fiscal made the following return :—
“ I repaired to Walgama in the Adicari Pattu of Siyane Korale inthe District of Colombo, Western Province, to deliver over possessionto the plaintiffs all that divided portion of land from and out of the landcalled Mahawalauwewatta situated at Walgama aforesaid and more-fully described in the annexed hereto writ and the possession thereofwas delivered to the 1st plaintiff on behalf of liimself and other plain-tiffs, by ejecting the defendants and ordering them to take away theirbelongings in the house etc. which they removed.”
On 2nd October 1956 the 1st plaintiff through his proctor filed apetition stating that a short while after he had been placed in possessionof the land and the defendants had been ejected therefrom by the Fiscalon 27th September 1956 the 2nd defendant in the case who was namedas 1st respondent to the petition and the 2nd and 3rd respondents whoare the husband and son respectively of the 1st respondent acting onher instigation “ unlawfully entered into possession of the said land,and prevented petitioner, from taking complete and effectual possessionof the said land ”. He prayed that the 1st to 3rd respondents be dealtwith under section 326 of the Civil Procedure Code, and that the writof possession be “ reissued ”.
On the same day the 1st and 2nd respondents filed a petition undersection 328 of the Civil Procedure Code. The investigation into thatpetition was made in case 62S8/L and the decision of the District Judgeis the subject matter of another appeal S. C. 285 which has been heardand decided separate!}7. When the two petitions came up for hearingon 25th February 1957 the District Judge made the following minute :—
“ It is agreed that both applications under sections 325 and 328be dealt together.”
BASNAYAKE, C.J.—Rahamath Umma v. Abdul Sameen
5
Eventually on 5th June 1957 the matters were taken up for hearing andthe learned Judge made order in the course of which he said
“ I have already held in case No. 6288/Land which was so numberedin accordance with the provisions of section 328 of the Civil ProcedureCode and refers to the same action that the defendants were ejected'from Mahawalauwewatta. I would not therefore deal with the factsin this matter separately.”
At the end of his order after discussing the submissions of law, he said :
“ In the result I only direct that the judgment-creditors be putin possession of the property and that the Fiscal do break open anypadlocks that may be put on these premises. If there is any furtherresistance, obstruction or hindrance to the taking of complete andeffectual possession I will have no option but to send such personsto jail until complete and effectual possession is given.
“ The 1st, 2nd and 3rd respondents will pay to the petitioners ascosts a sum of Rs. 315/-. The 4th respondent was a necessary partyto this application being the 1st defendant. He is not entitled to anycosts.”
The learned Judge and the parties do not appear to have realised thatthe Fiscal was authorised to execute a writ which was not in terms ofthe decree and was not authorised by it. Apart from that the learnedDistrict Judge not only omitted to deal with the merits of the petitionbut he also appears to have lost sight of the provisions of sections 325 and326. Section 325 provides that a petition presented under it shall bedealt with by the Court in accordance with the alternative (b) of section377, but he did not do so. The officer charged with the execution of thewrit does not say that he was resisted or obstructed by any person, nor isthere any evidence that, after the officer delivered possession, the judg-ment-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 described inSchedule B is illegal. It would appear from the report that the officercharged with the execution of the writ delivered possession to the 1stplaintiff by ejecting the defendants and ordering them to take awaytheir belongings in the house which they did. The 1st plaintiff allegesthat after he was placed in possession about 12.30 p.m. the 2nd defen-dant, her husband, and son entered into possession of the land on herinstigation at about 3 p.m. by driving away the persons she had placedin charge of it. The entry of the 2nd defendant, her husband, and son,even though it be two and a half hours after the 1st plaintiff had beenplaced in possession, does not come within the ambit of the second limbof section 325 which speaks of a case where the judgment-creditor is“ hindered in taking complete and effectual possession ”. In the instant
2*.T- X- R 17fiQ7
6
BASXAYAKE, C.J.-—Rahamath Umma v. Abdul Sameen
case possession was delivered and “ complete and effectual possession ’*was taken. The entry by the respondent was after “ complete andeffectual possession ” had been taken. That is what the Fiscal’s reportand the petitioner’s evidence shows. Tc section contemplates thefollowing cases ;—
where the officer charged with the execution of the writ is resisted
by any person,
where the officer charged with the execution of the writ is
obstructed by any person,
where the judgment-creditor is hindered by any person in taking
complete and effectual possession after the officer has delivered
possession.
In the case of execution of decrees for possession of immovable propertythe Fiscal is required to repair to the ground and there deliver over pos-session of the property described in the writ to the judgment-creditor orto some person appointed by him to receive delivery on his behalf. Twoacts are contemplated ; delivery over of possession and receiving ortaking of possession. Both acts are symbolic as the thing itself in thecase of immovable property cannot as in the case of movable property behanded over to the recipient. The act of delivery of possession falls tobe performed by the Fiscal, and the act of taking of possession by thejudgment-creditor or his agent. The section is designed to prevent theFiscal from being resisted or obstructed in the performance of his functionand the judgment-creditor from being hindered from performing his.These acts though performed by two parties are interdependent andby their very nature must take place at the same time. There canbe no delivery of possession by the Fiscal without the judgment-creditorreceiving or taking possession. The mode of delivery and the mode oftaking delivery vary with the circumstances of each case and it will beunwise to endeavour to specify the different modes of such deliveryor of taking possession. Section 324 contains certain specific modesof delivery of possession of immovable property. In the instant casethe Fiscal states in his report the modes of delivery and of taking posses-sion. The entry by the respondents was after the act of taking had beencompleted and effectually performed. As stated by Garvin S. P. J.in Pereira v. Aboothahir1 “ the hindrance contemplated is the hindranceto the taking of complete and effectual possession by the judgment-creditor in a case in which the officer charged with the execution of the writhad delivered possession but had not delivered complete and effectualpossession of every part of the property ”. That was also a case inwhich the entry was about twro hours after delivery of possession.
1 (1935) 37 N. L. R. 163.
BASNAYAKE, C.J.—Jtahamath TJmma v. Abdul Sameen
7
Although the word ,c hinder ” which seems more appropriate in thecontext and not ” resist ” or “ obstruct ** is used in connexion with thejudgment-creditor’s taking of possession, the distinction is not observedlater on in section 325 or the next section. It reads : “ may at any timewithin one month from the time of such resistance or obstruction com-‘plain thereof to the Court by a petition in which the judgment-debtor andthe person resisting and obstructing shall be named respondents Unlessthe words “ resist ” and “ obstruct ” are construed to include “ hinder ”a part of section 325 would be rendered useless for even though thejudgment-creditor is hindered from taking complete and effectualpossession he will not be able to invoke the aid of the Court under thatsection. A construction which gives effect to every part of the sectionis to be preferred to one which renders a part ineffective or useless. Thedecisions of this Court which hold that section 326 does not apply to theact of hindering a judgment-creditor from taking complete and effectualpossession do not seem to attach sufficient weight to the omission ofthe word hindering in that part of section 325 which provides for acomplaint to the Court by the judgment-creditor.
If after hearing the complaint under the section it is satisfied that theobstruction or resistance (which expression includes the act of hinderingthe judgment-creditor) complained of was occasioned by the judgment-debtor or by some person at his instigation, the only course the Courtmay take is to commit the judgment-debtor or such other person to jailand direct the judgment-creditor to be put into possession.
In the instant case there is no finding that the Judge was satisfiedthat the obstruction or resistance complained of was occasioned by thejudgment-debtor or by some person at his instigation. Apart fromthat, in a proceeding under section 325, the direction that the judgment-creditor be put in possession must be preceded by an order committingthe judgment-debtor or other person acting under his instigation to jail.Without such an order of committal to jail the section does not empowerthe Court to direct that the judgment-creditor be placed in possession.
For the reasons stated above the order of the learned District Judgeis set aside.
The appellants are entitled to their costs.
De Silva, J.—I agree.
Order set aside.