020-NLR-NLR-V-27-SITTAMPARAMATHER-KURUKAL-et-al.-v.-RATNASABAPATHY-KURUKAL.pdf
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Present: Bertram C.J. and Schneider J.
SITTAMPARAMATHER KURUKAL et at. v.
RATNASAB APATHY KURUKAL.
109—D. C. Jaffna, 15,159.
Execution sale—Fiscal9s transfer—Sale by judgment-debtor—Resistanceby purchaser—Civil Procedure Code, ss. 287 and 328.
Section 287 of the Civil Procedure Code, which provides a sum-mary means of putting into possession a person who has obtaineda Fiscal’s transfer of property in pursuance of an execution sale,does not apply where the person in possession of the property isone who has derived title to it from the judgment-debtor, beforethe property is seized in execution.
In section 328 of the Civil Procedure Code, in the paragraphwhich says “tha<t nothing in this section or section 326 appliesto a person to whom the judgment-debtor has transferred theproperty after the institution of the action in which the decreeis made,” the figure 326 is a mistake for 327.
Per Bertram C.J.—There is no reason why a person who hastaken a conveyance from a judgment-debtor after the institutionof the action should be exempted from the provisions of section 326if he obstructs the execution of the decree at the instigation of thejudgment-debtor.
A
PPEAL from an order of the District Judge of Jaffna. Thefacts appear from the judgment.
Drieberg, K.C. (with him Edjaratnam), for appellant.
James Joseph, for plaintiff, respondent.
Samarawickreme, for purchaser, respondent.
1924*
1824.
Sittampara-matkerKuntkal v.Rainasaba-patky Kuntkal
( 90 )
September 16, 1924. Bertram C.J.—
This is a case relating to civil proceedings of some complication.It arises out of litigation with respect to a temple in the Jaffnapeninsula. Two members of the same family were at issue withregard to the title and the right of management of this temple.In that action the plaintiff successfully established his title to ashare in the temple and a right to participate in its management.The defendant against whom the action has been brought there-upon, before any execution proceedings had been initiated, andbefore any seizure therefore had been made, transferred all hisrights in the temple to his son, the present respondent, appellant.Although the terms of the deed are not very certain on this point,the defendant appears to have purported to transfer all the rightsin the temple, as though he were the person solely entitled to.On his side the plaintiff took certain measures. He taxed hiscosts as expeditiously as possible, and then purported to executehis judgment for the costs by the sale in execution of the defendants’title to the temple, and also all his rights to the management. Thistitle and these rights so sold were bought in by the second petitioner,who is a member of the same family. The defendant then soarranged that the Udaiyar, when putting in force the executionof the decree, that is to say, when going to the spot in order to putthe plaintiff in possession of his share in the temple, should at thesame time execute the order of the Court which was made under.section 287, directing the purchaser at the execution sale to beput in possession of the property which he had purchased. Onthe Udaiyar so presenting himself, it appears that the appellantin a very violent and determined manner opposed his proceedings.He claimed to be entitled to the whole of the temple, both underthe deed he had received from his father and independently ofthat deed by virtue of inheritance. He did not then take up theposition which is now taken on his behalf that he had no objectionto the plaintiff in action entering into possession of the sharewhich the judgment in that action had declared him to be entitledto, but that he did object to the execution-purchaser claimingpossession not only of the title of the defendant to the temple,but also to the management thereto. He, as far as can be seen,obstructed the execution altogether. -Afterwards the writ wasreissued, and there the Fiscal himself, the Government Agent ofthe Province, no doubt desiring to avoid any disturbance in areligious building, went to the spotl and again the execution provedabortive owing to the obstruction of the appellant.
Proceedings were accordingly taken under section 325 of the CivilProcedure Code, and two petitions were ^presented, one on behalfof the plaintiff and the other on behalf of the execution-purchaser.No apology was made by the present appellant for his resistanceto the execution, but it was intimated that he no longer resisted
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the claim by the plaintiff for possession. The learned Judge,however, having, I presume, read the reports of the Fiscal andthe Udaiyar by consent of both parties, took a very severe viewof the contumacy of the appellant, and ordered him to be imprisonedfor thirty days, and at the same time directing the judgment*creditor, that is, the first petitioner, should be put in possession ofthe property. The appeal is now taken against this order, andI will consider the matter first.
Mr. Drieberg, on behalf of the appellant, claims that he wasentitled to obstruct any attempt to put the purchaser, the secondpetitioner, into possession, and that, therefore, any actual obstruc-tion to which the appellant was guilty ought to be attributed tothat matter. 1 do not think we can take this view. It appearsfrom the very full reports of the Udaiyar and the Fiscal that theappellant, apparently under some excitement, objected to theexecution proceedings under both heads. I do not think thathis conduct can be wholly passed over. At the same time, theorder for imprisonment for thirty days was an extremely severeone. The plaintiff on his side as a member of the family does notpress for the imprisonment of his kinsman, and I think that, underthe circumstances, the case will be met if the appellant in openCourt makes an apology to the satisfaction of the District Judgefor his obstruction of the Udaiyar and of the Fiscal. If thatapology is duly made, the order for imprisonment may I think beremitted; but the order of the learned Judge should stand withthe verbal variation that the judgment-creditor be put in possessionof that share of the property to which he was declared entitledunder the decree.
We now come to the question of the obstruction of the order forputting the purchaser into possession. That is on a differentfooting. This case has been argued on the supposition thatsection 327 applied to the case. But this appears to be a mis-conception. In section 328 there is a paragraph which says thatnothing in this section or section 326 applies to a person to whomthe judgment-debtor has transferred the property after the insti-tution of the action in which the decree is made. It is quite apparentthat the figure 326 there is a mistake for 327. There is no reasonwhy a person who has taken a conveyance from a judgment-debtorafter the institution of the action should be exempted from theprovisions of section 326, if he obstructs the execution of thedecree at the instigation of the judgment-debtor. It is quite plainthat the paragraph has reference to the two sections which are inpari materia, namely, sections 327 and 328. This becomes quitemanifest if we refer to the corresponding provisipns of the oldIndian Code of Civil Procedure, namely, section 333. That runs," Nothing in section 321 or 332 applies, &c.,” and sections 331 and332 are the sections which correspond with our sections 327 and 328.
1924.
Bertram
C.J
jSHttampara-tnatterKurukal v.liatnaeaba-pathy Kvm•leal
1924*
Bertram
C.J.
StUamparo-motherKurukol v.Ratnaeaba-pathy Kunt'kal
( 92 )
It is recognized that it is competent to a Court in construinga Statute to correct an obvious clerical error—see Maxwell onthe Interpretation of Statutes, pp. 380 and 381, and The Queen v.Joseph Wilcock1 where it was held that a mistake had been com-mitted by the Legislature in Betting out the word of the Statutewhioh it intended to repeal, and the Court considered that theinoorreot word might be rejected. This being the position, $heresult is that the Legislature intended that a person, who had taken. a conveyance pendente life, should not be entitled to the com-paratively mild provisions of sections 327 and 328, but should beleft liable to be dealt with under section 326, if he offended againstthe provisions of that section. I may here remark, if one readsthe corresponding provisions of the old Indian Code of Civil Pro-cedure, one very much better appreciates the scheme of thesesections. Section 326 was intended to deal with cases in whichthere was no just cause for the resistance, and there was reason toexpect that resistance would be continuous. Sections 327 and328 were intended to apply to cases of less seriousness. It appears,however, that these sections 327 and 328 do not apply to the presentcase at all. What then is the position ?
Mr. Samarawickreme says the only result is that he is free toenforce his order for possession, and that that order being enforced,the appellant must pursue any remedy which he thinks is opento him by a separate action.
Mr. Drieberg contests thiB position, and takes up what I thinkis the right attitude. Section 287 declares in its final paragraphthat an order for a delivery of possession made under that sectionmay be enforced in the same way as an order to yield up possessionof immovable property under section 217. But one must carefullynote the scope of that section. It provides a summary means ofputting into possession a person who has obtained a Fiscal’s transferin pursuance of an execution sale. The cases in which that sectionmay be applied are limited by the words of that section. Theyare, firstly, where the property sold is in the occupancy of thejudgment-debtor; secondly, where it is in the occupancy of someperson on his behalf ; and, thirdly, where it is in the occupation ofsome person claiming under a title created by the judgment-debtor,provided that that title was created subsequent to the seizure,The section does not apply where a person in possession is not ajudgment-debtor or some person holding on his behalf, but isa person who has derived title from the judgment-debtor beforethe property is seized in execution. As against that person thefinal paragraph of the section does not apply. The person whohas obtained a Fiscal’s transfer under those circumstances, if heseeks to give effect to his title, must do so by a separate action.
1 {1845) 14 L. J. Rop. itf. C.*104.
1924.
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The second petitioner, therefore, must be left to pursue his rightsunder his transfer in this way. The result is that as against thefirst petitioner, the appellant’s appeal must be dismissed, subjectto the modifications I have indicated. As against the secondpetitioner, it must be allowed with costs in both Courts.
Schneider J.—I agree.
Bertram
C.J.
Sittampara.
motherKurukal v.Batnasaba*pnthy Kuru.kal.
Decree varied.