SEKADY PULLE v. THE FISCAL , CENTRAL PROVINCE

052-NLR-NLR-V-13-SEKADY-PULLE-v.-THE-FISCAL-,-CENTRAL-PROVINCE.pdf


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[Full Bench.]
Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,
Mr. Justice Middleton,. and Mr. Justice Wood Benton.
SEKADY PT7LLE v. THE FISCAL, CENTBAL PBOVINCE.
65, D.G., Kandy, 19,093.
Application to set aside Fiscal's sale—Fiscal cannot be made a’ party toproceedings without his consent—Fiscal not a necessary party—Civil Procedure Code, s. 282.
The Fiscal is not a necessary party to an application undersection 283, Civil Procedure Code, for the annulment of a Fiscal'ssale on the ground of material irregularity, and he cannot be madea party to such applications against his will.
rjiHE facts are fully stated in the judgments.
Hayley, for the appellant.—Section 282 of the Civil ProcedureCode does not make the Fiscal respondent to these proceedings.
Section 362 requires a month’s notice of an intended action to begiven to the Fiscal. Section 362 has deliberately altered the law asit was contained under sections 20 and 21 of the Fiscal’s Ordinance,No. 4 of 1867. This is an “ action ” within section 6 of the CivilProcedure Code; it is a summary proceeding (MuttukumaraSwamy v. Nannitamby l).
Only persons against whom there is a prayer for relief can be madeparties to an action. See section 14 of the Civil Procedure Code.No relief is prayed for against the Fiscal; the only reason that canbe put forward for making the Fiscal a party to these proceedings' against his will is that costs can be recovered from him.
An agent—the Fiscal is merely a statutory agent—cannot be joinedas a party to an action solely to make him liable for costs. See Barnesv. Addy,3 Burst all v. Bey jus,3 Ferguson v. The Government et al.*
The Fiscal though an agent is bound to undertake the agency,and should be given the full benefit of the special exemption whichthe Statute has given him. Clearly, if any sum had been claimed asdamages here, he would have been entitled to plead the provisionsof section 362; how then can he be deprived of the benefit of thatsection merely by omitting the claim for damages ? Further, if aregular action is also instituted against him, he may have, to paycosts twice over. The suggestion in the judgment appealed from, thatunless the Fiscal were joined in these proceedings the party injuredmight be met in any subsequent action by a plea of prescription, has nosubstance in it, for the cause of action arises immediately the irregularsale takes place (Muttappa Chetty v. Conolly,3 Karolie v. Woutersg •).
> (1904) 4 Tam. 3, 4.3 26 Ch. D. 36.‘ (1882) Wendt 232.
»L.R.9eh. 244.*9 W.R. 158.• (1888) 8 S. O. C. 153.
June 28,1910
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June 28,1910 The claim, if any, against the Fiscal is not in respect of the same
Sekady Pulle cause of action.
v. The Fiscal,
Bartholomeusz, for the respondent.—It has been the practice of mostrovwee Courts to make the Fiscal a party to applications under section 282.
An application under section 282 is not an action.
The cause of action is the same; the same grounds of irregularityare urged against both the respondents to this proceeding.
If the Fiscal has a right to intervene in such proceedings, it is butjust that he should be liable to be made a party respondent whenevernecessary—every right has a correlating duty.
Hayley, in reply.—The practice of Courts has not been uniform.
Gut. adv. vult.
June 28, 1910. Hutchinson C.J.—
In this case the defendant, the execution-debtor, applied to setaside a sale which took place under a writ of execution against her(as administratrix of the deceased debtor). The grounds for theapplication were certain alleged material irregularities in the publish-ing and conducting of the sale, in consequence of which the applicantsuffered substantial loss. The sale was of certain shares in land; thepurchaser was the plaintiff (the execution-creditor); and he andthe Fiscal were made respondents to the application. The Fiscalobjected that he was improperly made respondent; the DistrictJudge held that he wa3 a necessary party to such an application;and this is the Fiscal's appeal against that ruling.
The appeal was first argued before Wood Benton J. and Grenier J.,who referred it to a Court of three Judges, and in the meantimecaused inquiries to be made from the District Courts as to whetherit has been the practice to make the Fiscal a respondent to suchapplications, and if so, whether costs have ever been awardedagainst him, and whether, if he is not made a respondent, it has beenusual to give him notice of the application. It appears from thereplies that the practice has not been uniform: in Galle, Kandy,Kurunegala, and Matara the practice has been to make the Fiscala respondent, and costs have been awarded against him; in Colombohe has in most cases been made respondent, but it is not the invariablepractice, and there have been no cases, so far as the Judge canascertain, in which costs have been awarded against him; in Kegalla“it has been the practice in several instances’’ to make him arespondent, and in two instances costs have been awarded againsthim; in Badulla and Jaffna it has not been the practice to makehim a respondent or to give him notice.
Section 282 requires that the purchaser shall be made respondentto the application, but says nothing about the Fiscal. Section 362enacts that he shall be protected from civil liability for loss or damagecaused by, or in the course of, or immediately consequential upon, the
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execution of the process by him or his officers, except wnen it isattributable to any fraud, gross negligence, or gross irregularity ofproceeding, or gross want of ordinary diligence, or abuse of authorityon the part of the person executing the process; and that no actionshall be maintainable against him in respect to his execution of theprocess, unless a month’s previous notice in writing is given to him;and the action must be brought within nine months after the causeof action has arisen. 1 think that it is contrary to the spirit andintention of section 862 to order the Fiscal to pay the costs of suchan application as this; for it is intended that he shall incur noliability, except for the fraud or other misconduct mentioned inthat section, and that he must have a month’s notice before action.And I see no other object in making him a respondent, except thathe may be ordered to pay the costs of the application if it is successful.I think that he ought not to be made respondent; it may be convenientto give him notice of the application, but I do not think it is essential.
It is, of course, hard on the purchaser to make him pay the costsof the application if he was quite innocent in the matter of theirregularity, and I do not think that he ought to be ordered to paythem; but that is a question which does not arise now, and I prefernot to decide it. But I am clearly of opinion that the Fiscal cannotbe ordered to pay them.
I think that the appeal, should be allowed with costs.
Middleton J.—
This is an appeal against a decision that the Fiscal is a necessaryparty to an application under section 282 for the annulment of aFiscal’s sale on the ground of a material irregularity in the publishingand conducting of it. It was argued by Mr. Hayley, on behalf ofthe appellant, that the present application claimed no relief as againstthe Fiscal for damage, and upon the assumption that it was aproceeding in an action, and that no person could be made a partyto an aotion against whom no right to any relief was claimed, theCourt had no power to make the Fiscal a party. It was also arguedthat the terms of section 282 exclude the power to name the Fiscalas respondent. Under section 362 the Fiscal is only made liable forfraud, gross negligence, or gross irregularity of proceeding, or grosswant of ordinary diligence, or abuse of authority on the part of theperson executing the process; and no aotion shall be maintainableagainst him in respect to his execution of the process unless a month’sprevious notice in writing is given to him; and the action must bebrought within nine months after the cause of action has arisen.He may also tender amends, and plead such tender. It seems to me,therefore, that section 862 limits the liability of the Fiscal in accord?ance with the provision. He is clearly not entitled to be made aplaintiff in such an application as the present, and I think he cannotbe made a defendant except under section 14.
June 28,19 JO
Hutchinson
OJ.
Stiady Pullev. ThePiteal,CentralProvince
June 28,1910MXDDXiBTON
J.
Sekady PuUev. 7A6 Fiscal,CentralProvince
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I think that even under section 18 the Court would only havepower to add a person as defendant against whom the right to anyrelief is said to exist. 1 do not think that it is contended that insuoh an application as this a claim for damages could be maintainedagainst the Fiscal, but the object is to make him pay the costs,.ifit appears the irregularity charged was his agent’s. As in myopinion he is only liable under section 362, 1 do not think he oughtto be made a party in such an application. The practice of thedifferent District Courts in the matter seems to have varied, butI do not think there is any right to do more than give him notice onthe hearing, and certainly no right to make him pay costs underthose circumstances.
1 would allow the appeal with costs.
Wood Renton J.—
The question raised in this appeal is whether the Fiscal is liableto be made a party to proceedings under section 282 of the CivilProcedure Code, with a view to setting aside a sale on the groundof material irregularity. The sale here in question was effected by,or under the directions of, the Fiscal for the Central Province in theexecution of a decree obtained by the first respondent against. thepetitioner-respondent, who is the widow and administratrix of oneIbrahim Saibo Eruwady. The first respondent, the execution-creditor, was purchaser at the sale. The irregularities alleged bythe petitioner-respondent were that notices of the sale were notposted in some conspicuous part of the village where the lands weresituated or on the land themselves, and also that publicity was notgiven to the impending sale, by tom-tom beating, either at the timeof or before the sale, as required by section 265 of the Civil ProcedureCode. On August 9, 1909, the then Acting District Judge of Kandymade an order fixing the 3rd of the following September for thehearing of the case, and also that the Fiscal of the Central Province,as well as the first respondent, should then be heard if they appearedin Court before that date. The first respondent filed an affidavittraversing the allegations in the petition. The Fiscal also filed anaffidavit, in which he stated that he was advised that he had beenimproperly joined as second respondent to the petition. The caseapparently did not come up for argument till February 24, 1910, onwhich day the learned District Judge of Kandy held that the Fiscalwas a necessary party to the proceedings, and that, therefore, hehad been rightly made a respondent to the petition. The case wasfully argued before Mr. Justice Grenier and myself on June 7. Wethought it advisable, before deciding the important point of practiceinvolved in it, that we should obtain information from the leadingDistrict Courts in the Colony as to what the cursus curia hadbeen in the matter, and we accordingly directed the Registrar. toforward to the District Courts of Colombo, Galle, Kandy, Kegslla,
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Kurunegala, Jaffna, Badulla, and Matara the following series of J«m$8,1910questions, the replies to which are filed of record:—Wood
“ (1) Has it been the practice in your Court to make the Fiscal Benton J.a respondent to petitions under section 282 of the Civil sekady PulleProcedure Code for the setting aside of sales on the v. Theground of material irregularity ?Province
“ (2) If so, for how long has such practice been in force ?
“(3) If it has be.en the practice to make the Fiscal a party to suchpetitions, have costs been awarded in any cases to yourknowledge against the Fiscal ou a sale being set aside ?
“ (4) If it has not been the practice to make the Fiscal a partyunder section 282, has it been usual to give him notice ofproceedings under that section ?
The replies show that, except in Jaffna and Badulla, it has been thepractice since the present Code of Civil Procedure came into force,and in some cases prior to that date, to make the Fiscal a party toapplications with a view to setting aside sales in execution on theground of material irregularity. There did not appear, however, tobe any direct authority of a decisive character on the point. Thecase of Aberan v. Jayewardena,1 which is reported as having decidedthat, it is not misjoinder, in a suit to set aside a Fiscal’s sale, to jointhe execution-creditor, the Fiscal’s officer, and the purchaser, is ofprior date to the Fiscal's Ordinance, No. 4 of 1867. Moreover,although the arguments in that case were fully reported, it isnot easy to ascertain what was the exact ratio decidendi. Fourgrounds of demurrer are assigned, the first of which does notinvolve the question whether the cause of action had arisen againstthe Fiscal’s officer, and although the Court over-ruled the demurrer,it is impossible to tell from the report on which of the groundsset out in the demurrer they acted in doing so. The case ofThe Fiscal, Central Province, v. Appuhatny,a which the learnedDistrict Judge of Kandy has referred to in his answers to ourquestions, is no authority on the point now before us. That casewas decided by my brother Grenier and myself, and our decisionwas expressly based on the ground that the Fiscal had taken theobjection that he was not liable to be joined under section 282 attoo late a stage of the proceedings.
In view of the absence of judicial authority on the point, and Ofthe provisions of sections 282 and 362 of the Civil Procedure Code,
Mr. Justice Grenier and I referred the case to a Bench of threeJudges, in order that the question might be settled once and for all.
We have had the advantage of full and able arguments on bothsides, and, speaking for myself, I have come to the conclusion thatthe Fiscal’s appeal should be allowed. In arriving at this resultI have not felt myself able to adopt one of the main arguments putbefore us by Mr. Hayley on behalf of the appellant. I do not thinkthat an application to make a Fiscal a party to a proceeding under1 (IS39) 8 Latent 189.3 8. C. Min., July 6. 1910.
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June 28,1910 section 282 of the Code is an action. It follows, therefore, that the
case before us cannot be regarded as in substance an action brought
KbotowJ. against the Fiscal without the notice prescribed by section 362.
Moreover, I think that the provisos to section 362 of the Civil
i^TheFiemt, Procedure Code must be construed with reference to the right ofCentral action under that section. It seems to me, however, that both theom * spirit of section 362 and the express reference contained in it to theprotection of persons charged with the duty of executing civilprocess from '* civil liability for loss or damage caused by, or in thecourse of, or immediately consequential upon, the execution ofsuch process " show that it was the intention of the Legislature toprotect the Fiscal—I will take only the case now before us—fromall civil liability for acts or omissions done or made in the executionof process, and having a legitimate foundation of authority (seeCassini v. Liescking,1 Miganchiga v. Elapata Appuhamiand Brooksv. Welton except in the cases distinctly indicated in the sectionitself. There can be no doubt but that the action of the Fiscalhere in question had a legitimate foundation of authority. If, asthe result of the proceedings, he should be mulcted in costs, therewill be imposed upon him that “ civil liability ” which section 362prohibits, save in the cases that it directly contemplates. I do notagree with the learned District Judge that he had any power undersection 18 of the Civil Procedure Code to make the Fiscal a partyto an application under section 282, inasmuch as his presence isnot “ necessary, ” even although, in a certain aspect of the case, itmight be convenient, for its determination. It was held by theSupreme Court, in the case of Sitmetampi v. Kandapodi,* that theFiscal’s liability to the execution-creditor and debtor in an actionfor damages sustained in consequence of a sale irregularly conductedwas such a substantial injury within the meaning of the analogousprovisions of section 53 of Ordinance No. 4 of 1867 as would givehim a right to object to the confirmation of an execution sale on theground of such irregularity; and there is old authority (see Marshall171) to the effect that a Fiscal is entitled to notice of proceedingsof this kind. But there is, in my opinion, no judicial authoritywhich compels or entitles us to hold that he can be made a party toapplications under section 282 of the Code against his will, and Ithink that we ought to decline to do so. Inasmuch as the right toan action under section 362 arises, provided that the conditionsrequired by that section exist, whenever an irregular sale has beencarried out (see Muttappa Chetty v. Conollys and Karolis v.Woutersz ®), the prescribed statutory notice of such an action may begiven, if the party aggrieved is so advised, simultaneously with theproceedings under section 282. I would allow the Fiscal’s appealwith costs against the petitioner-respondent here and in the DistrictCourt.
Appeal allowed.
> (1887) 2 S. C. C.6.» (1886) 8 8. C. C. 23.* {1882) Wendt 232.
» (1881) 5 S. C. C. 27.* (1889) 9 S. C. C. 29.* (1888) 8 S. C. C. 153.