005-NLR-NLR-V-63-W.-SIRINIVASA-THERO-Appellant-and-SUDASSI-THERO-Respondent.pdf
SANS ONI, J.—Sirinivasa Thero v. Sudassi Thero
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Present:Sansoni, J., and H. N. G. Fernando, J.W. SIR ENT V ASA THERO, Appellant-, and SUDASSI THERO, Respondent
S. C. 440—D. G. Kandy, L 3167fA
Action for declaration that plaintiff was entitled to office of Viharadhipathi of aVihara and Pansala and to the management and control of their temporalities—No possession of any property asked for —Decree entered as prayed for—Issueof writ of possession in respect of a room in the Pansala—Absence of jurisdictionof Court to issue such writ—Remedy of dispossessed party—Civil ProcedureCode, 88. 217 (o), 325, 328—Buddhist ecclesiastical law.
A Buddhist priest sued three other priests for a declaration that he wasentitled to the office of Viharadhipathi, incumbent and trustee of a Vihara andPansala and to the management and control of their temporalities. He did .not ask for possession of any property. He obtained judgment and decreeas prayed for and, upon his application to execute the decree, a writ of possessionwas issued in respect of a room in the Pansala.
Held, that the decree entered in the action could not be construed as one whichdecreed possession of any property. The decree could not be said to fall withinsection 217 (c) of the Civil Procedure Code which relates to a decree commandingthe person against whom it operates “to yield up possession of immovableproperty ” ; nor could it fall within section 323 which applies if the decreeor order is “ for the recovery of possession of immovable property or anyshare thereof by the judgment-creditor, or if it directs the judgment-debtorto yield or deliver up possession thereof to the judgment-creditor ”. Theposition of the judgment-creditor was no better than that of a plaintiff whoobtains a declaration of title to immovable property without also obtaininga declaration of his right to the immediate possession of that property.
Held further, that, inasmuch as the Court acted without jurisdiction inissuing the writ, the person who was dispossessed of property in consequenceof the execution of the writ was entitled to be restored to possession. In sucha case a Court of. Justice has inherent power to repair the injury done to a partyby its act. The objection that the Court acted in excess of jurisdiction canbe taken for the first time even at the stage of appeal.
Appeal from a judgment of the District Court, Kandy.T. B. Dissanayalce, for Plaintiff-Appellant.
Vernon Jonklaas, for Defendant-Respondent.
Cur. adv. vuU.
December 13, 1960. Sansoni, J.—
The plaintiff in the present action was ejected from a room in theHippola Pansala in Maiwatta Vihara when a writ, issued by the DistrictJudge in case No. L. 3167, was executed. In that case the defendantsued three other Buddhist priests for a declaration that he was entitled
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SANSONI, J.—Sirinivaaa Thero v. Sudasst Thero
to the offices of Viharadipathi, incumbent and trustee of BogahapitiyaVihara and Hippola Pansala, and to the management and control oftheir temporalities. The defendant obtained judgment as prayed forin that case and on 2nd August, 1957, upon his application to executethe decree, a writ of possession was issued.
Complaint was made by the defendant as judgment-creditor, undersection 325 of the Code, that he could not get complete possession ofHippola Pansala, and on 13th May, 1958, the District Judge orderedthat the writ be re-issued to the Fiscal to deliver possession to the defen-dant of a room which was locked, breaking open the door of the roomit necessary At the time that order was made in Court, it was broughtto the notice of the Judge that the room which was locked was claimedby the plaintiff, and the Judge thereupon directed that if the plaintiffresisted the writ officer and made a claim, that should be reported toCourt.
The writ was accordingly re-issued on 17th May, and it was returnedto Court on 30th May with an affidavit of the Fiscal’s officer who statedthat he went to the premises on 21st May, accompanied bv the judgment-creditor and two Police Constables, and delivered possession of the roomto the judgment-creditor. The affidavit continued, “ This room whichwas found closed on the previous occasion was kept open on this dayThe plaintiff in his affidavit of 27th May, which was filed in Court thenext day, stated that he informed the Fiscal, Central Province, of hisclaim to the room by a letter dated 19th May, and that he also informedthe writ officer of his claim and produced documents in support of it,when that officer came to execute the writ together with the judgment-creditor and two Police Officers. He complained in that affidavit thathe was assaulted and removed bodily out of the room, after which thedefendant took possession of it together with the furniture and otherarticles in it. He said that he still had the key, and complained thatthe writ officer had not reported his claim.
On 2nd July, the plaintiff filed a petition and affidavit ; he askedthat his application be numbered as a plaint and proceedings takenunder section 328, and that he be restored to possession of the room.The plaintiff was examined on oath and the Judge directed that thepetition be numbered as a plaint, and that a plaint in proper form befiled. Accordingly a plaint was filed in the present action No. L. 31G7 Awherein the plaintiff prayed that he be restored to possession of theroom. The defendant, who is the judgment-creditor in L. 3167, filedanswer denying that the plaintiff was in any way entitled to the roomor exclusive possession of it. The learned Judge has, in his judgment,accepted the position that the plaintiff was ejected from the room inexecution of the decree, and having regard to the earlier history of thismatter there can be no doubt that the plaintiff was dispossessed of theroom notwithstanding his protests. But the learned Judge also held
SANSONI, J.—tSirinivasa Thero v. Sudassi Thero
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that the plaintiff was not in law entitled to possession of the room orto be restored to possession, because the defendant as Viharadhipathiwas entitled to control the occupation of the Pannsala.
At the hearing before us, Mr. Dissanayake for the plaintiff submittedthat the decree entered in L. 3167 was not a decree under section 217 (c)of the Code and no writ of possession should have been issued. Inview of the terms of that decree, which merely declared that the plaintiffin that action was entitled to certain offices and to the managementand control of certain temporalities, I do not think it can be said tofall within section 217 (c) which relates to a decree commanding theperson against whom it operates “ to yield up possession of immovableproperty nor does it even fall within section 323 which applies if thedecree or order is “ for the recovery of possession of immovable propertyor any share thereof by the judgment-creditor, or if it directs the judgmentdebtor to yield or deliver up possession thereof to the judgment-creditor.”
am unable to construe the decree as one which decrees possession ofany property to the defendant in these proceedings : nor was any posses-:sion asked for in case No. L. 3167. The position of the defendant isno better than that of a plaintiff who obtains a declaration of title toimmovable property, without also obtaining a declaration of his rightto the immediate possession of that property : see Vangadasalem v.■Chettiyar x. It follows that sections 323 to 330 do not apply, becausethey only apply to decrees for the recovery of possession of immovableproperty.
Since the decree was one in respect of which, under the Code, thejudgment-creditor could not ask for, and the Court had no power toissue, a writ of possession, it seems to me that the Court was actingwithout jurisdiction in issuing such a writ. The foundation of a writ•of possession is a decree for possession, and a writ of possession whichis not founded on such a decree is a nullity, because in issuing it theCourt acts in excess of its jurisdiction. Where a Court makes an orderwithout jurisdiction, as in this case, it has inherent power to set it aside ;and the person affected by the order is entitled ex debito ju-ititiae to haveit set aside. It is not necessary to appeal from such an order, whichis a nullity : see the judgment of the Privy Council in Kofi Forfie v.■Seifah 2.
The failure of the present plaintiff to take the objection that theCourt had no jurisdiction, which he could have taken at an earlier stage■of this action, does not prevent him from taking it now, for an objectionto the jurisdiction of the Court is one which we must entertain whenour attention is called to it, since we are dealing with an absenceof jurisdiction which is apparent when one looks at the decree. Mr.Jonklaas referred us to the case of Jayalath v. Abdul Razak?, but thethe Court was not there dealing with a case of absence of jurisdiction,•but with a case of a wrong or irregular exercise of jurisdiction. *
1 11928) 29 N. L. B. 445.
* (1954) 56 N. L. B. 145.
* (1958) A. C. 59.
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Sa/rlin v. James Fernando
The question now arises as to what order we should make on thisappeal. The plaintiff asked the Court to restore him to possession ofthe room, because he had been dispossessed of it in execution of thedecree. Section 328, no doubt, contemplates dispossession under decreesfor possession of immovable property, but this is not a matter whichwe can allow to stand in the way of the plaintiff, for we must have regardto the substance rather than the form. Justice requires that he shouldbe restored to the position he occupied before the invalid order wasmade, for it is a rule that the Court will not permit a suitor to suffer byreason of its wrongful act. The Court will, so far as possible, put himin the position which he would have occupied if the wrong order hadnot been made. It is a power which is inherent in the Court itself, andrests on the principle that a Court of Justice is under a duty to repairthe injury done to a party by its act : see Rodger v. Comptoir D’Escomptede Paris x. The duty of the Court under these circumstances can becarried out under its inherent powers.
would, therefore, direct that the plaintiff be restored to possessionof the room which he was occupying in the Hippola Pansala prior tothe execution of the writ in case No. L. 3167. With regard to costs,seeing that the plaintiff failed to take the point of jurisdiction in theDistrict Court and permitted these lengthy proceedings to go on in thatCourt, he is not entitled to any costs of the proceedings in the lowerCourt, but he will have his costs of appeal.
H. N. G. Fernando, J.—I agree.
Appeal allowed.