048-NLR-NLR-V-18-SILVA-v.-DE-MEL.pdf

SILVA *. DE MEL.
143-~-D. C. Colombof $9,&66,
CwUProcedure Code, ss.328 f287, 2l7~Ordcrfor deHoory ofpossession
io purchaser in execution—Higkt of party dispossessed to takeproceedings under *.328tCioil ProcedureCode.
Section 328 of theCivilProeodarc Codedoes not applyonlylo
cases of dispossessioninexecution <tf ' proprietary deems,but *to
orders for delivery of possession under section 387 as veil.
Oe Sitoa *. De Silva 1 distinguished.
JJpHE facts are set out in the judgment of Wood Benton C.J.
A. Si. V. Jayewardenc, for the plaintiff, appellant.
Baton, K,C*t (with him JL F. de Silva), for defendant, respondent.
* (l$m .9 X. L. ft. 261*
Cur. adv. volt*
( J65 )
February 5, 1916. Wood Bbnton C.J.—
Thi> ease raises an interesting and important question undersection 828 of the Civil Procedure Code. The plaintiff sued certaindebtors of his on a promissory note and obtained judgment againstthem. In the execution of the decee certain premises in Hunu-pitiya, Colombo, were seized and sold to the defendant. Thedefendant obtained an coder for delivery of possession and dis-'possessed the plaintiff, who thereupon instituted proceedings undersection 828 of the Civil Procedure Code. The learned DistrictJudge accepted the petition presented by the appellant under that-section and directed that it should be treated as a. plaint. Objectionwas, however, subsequently taken on behalf of the defendant thatsection 828 applies only to cases of dispossession in execution ofproprietary decrees, and has no application to orders for deliveryof possession under section 287 of the Code. The learned DistrictJudge npheld this objection, vacated hiB order as having been madeimprovide, and dismissed the petition. The plaintiff appeals.
The question has been referred to three Judges in view of thedecision of Sir John Bonser C.J., Lawrie J., and Withers J. inDe Silva «. De Silva.1 If that decision direotly governs tire pointat issue, and is an authority for the proposition that orders undersection 287 of tire Code are excluded from the scope of the wholegroup of sections dealing with resistance to the exeeution of decrees,it is clearly, binding upon us. I am of opinion, however, that itmight fairly he considered as limited in its application to sections325 and 326, which attach penal consequences to resistance to, orobstruction of, the execution of writs in certain eases. The Judgesheld, it is true, that the wend “ decree ” in section 825 cannot beread as if it were equivalent to “ order,*' but both Sir John Bonserend Withers J. justify this interpretation on the ground that theenactment is one in which the liberty of the subject is concerned.Lawrie J., although he concurred in the view expressed by hiscolleagues, had serious doubts as to its correctness—doubts which,with the utmost respect, I confess that I fully share. On theground that I have stated, I am of opinion that, in Bpite of De Silvav. De Silva,1 we are at liberty to construe section 328 for ourselves.In view of the provision in section 287 that an order for delivery ofpossession may be enforced as an order felling under section 217 (0)(the purchaser being considered as judgment-creditor), of the useof the words “ or order " in section 823 and of their subsequentomission, which must have been per meurioin, it appears to me thatthe Legislature intended to put orders under section 287 on thefooting of decrees for the purposes of the group of sections withwhich we me here concerned, and -that we ought to interpret section828 in thi£ sense so as to effectuate its clear intention.
I agree to the order proposed by my brother De Sampayo.
» (1B0S) B N. L. H. Jftl-
Site• *-DtMtl
( 166 )
1 Itts! Shaw J.—. o
88m*. I agree. I?t&nh the group of sections of the Cede 829 to 880°* Md relate to both “ decrees ” and “ orders, " and that the word “ decreewhen it is used:alone, should be held to include an “ order.” £ amtherefore of opinion that, the original order of the District Judgemade under section 828, that the appellant's application should benumbered and registered as a plaint, was properly made, and shouldnot have been vacated. 1 feel some difficulty about the case ofDe Silva v. De Silva but, on the whole, I think that it need not beconsidered as a binding decision of the Full Court, except for theproposition that for .the purposes of punitive proceedings tindersections 828 and 826 the word “ decree ” should not. be held to include“order” because for the purpose of proceedings of a criminalnature the Legislature had not expressed its intention in sufficientlyunmistakable terms. This is the ground on which Bonser C.J.. based his decision in the case.
De Sampayo A.J.—
The appellant, being dispossessed of certain premises by theFiscal in execution of a writ of possession taken out by the re-spondent as purchaser in execution of the decree in action No. 35,814of the District Court of Colombo, petitioned the Court under section328ro£-the-Ctvil-Procedure-Code.. The District Judge', havingconsidered that the appellant had been in bona fide possession of theproperty on his own account, ordered the petition of complaintto be numbered and registered as a plaint in an action between theappellant as plaintiff and the respondent as defendant, but whenthe case came on for trial he upheld an objection taken on therespondent’s behalf that the appellant could not apply undersection 828, and dismissed tire action with costs.
The District Judge has relied on De Silva v. De Silva.1 That is aFull Bench case, and if it decided the particular point involved in tinsappeal, it is a binding authority and we shall not be-in a positionto review it. But when closely examined, it will be found not tobe an express authority. Those proceedings had been taken undersections 325 and 826 by an execution purchaser against a personwho had resisted the execution of a writ of possession issued byCourt, and though certain remarks of Bonser C.J. in his judgmentmay have a general bearing ou the construction of the sectionsrelating to execution of decrees for possession of immovable property,the ratio of that decision, as I understand it, is that as the appli-cation before the Court was to enforce the penal provirions of sections825 and 826, which ought therefore to receive a strict construction,and as those sections do not speak of an “ order,” hut only of a“decree,” the second paragraph of-section 287, whioh provided
' (1898) 3 Nt L, B. 161.
( 167 )
that an order for delivery of possession to an. execution purchasermay be enforced as an “ order ” falling under head (C) of section 217,the penal provisions in question should not he held to be applicable.But as'regards the general scope of section 287, and .the appli-cation of the provisions of section 828 to the matter of puttingan execution purchaser in possession, I think, wih great respect .tothe learned Judges who took part in De Silva v. De Silva,1 that we maygo upon our own view. Bonser C.J. thought that seotion 287 onlyreferred to the manner in which .the Fiscal should act in carryingout the order for delivery of possession. But I ’think this is taking. too narrow a view, for, then, the provision would have taken theform that the order for.<'delivery of possession may be " executed, ’*and not that it may be " enforced as an order falling under head(C). We must iherefore look for some other meaning in section 287.Seotion 217 contains an enumeration of the various decrees or orderswhich a Court may enter, and the following sections are concernedwith the mode by which they‘are respectively to be enforced.Sections 828 .to 880 lay down the mode of execution of decrees ororders foiling under head (C) of seotion 217. Now, it is remarkablethat section 328 begins '* if the decree or order is for the recoveryof possession of immovable property. ” &o., but thereafter neitherin that seotion nor in any of the following sections does the word“ order occur at all; it disappears altogether and the only wordfound is “ decree. ’* I cannot resist the conclusion that in thesesections “ order " is synonymous with “ decree, ” for otherwise therewould be no provision in the Code at all for enforcing an “ order ”for delivery of possession as distinguished from a " decree. ” I thinkthat by the second paragraph of seotion 287, which provides for theenforcement of an order for delivery of possession to an executionpurchaser, the relevant provisions of tire Code relating to enforce-ment of a decree for possession, including those of section 828, aremade applicable. I am of tins opinion ail the more, because thewhole scheme of the Procedure Code is to provide speedy andinexpensive remedies, and it appears to me only reasonable to allowdisputes arising from the execution of an order for possession infavour, of a purchaser at a Fiscal's sale to be inquired into andsettled by the means provided in seotion 828 instead of drivingparties to a separate action.
I would set aside the order of dismissal and restore the proceedingsup to the order numbering and registering the petition as a plaint,mid send the cass back to be proceeded with in due course. As themder of dismissal was made on objection token by tire respondent,l think be should pay the costs of tire day in the District Court andalso tire costs of this appeal.
1 am a N. L. B. ML
1915.
On HaufayoAJ.
Silva t>.
De Mil
Sat aside. 1