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PERERA v. BRAMPY et al.
NLR2V121
PERERA v. BRAMPY et al.
D. C., Colombo, 6,272.
Purchaser in execution of immovable property-Delivery
of possession- Resistance to Fiscal-Claim by third party in good faith-Numbering and registering
purchaser's petition as a plaint.
A, a purchaser in execution of certain immovable property, "obtained, under section 287 of the Civil Procedure Code, an order on the Fiscal for delivery to him of the property purchased. In execution of this order the Fiscal was resisted by B and C, who were in possession of the property, and claimed it as their own. A thereupon petitioned the Court under section 325.-
Held, that it the Court found that the
resistance had been occasioned by B and C claiming in good faith to be in possession of the property on their own
account, A was entitled to have his petition numbered and registered as a plaint, and proceedings taken thereon under
section 327; but before the Court directed the petition to be so numbered and registered, it should put on record its
distinct finding, if that be so, that B and C were claiming in good faith, to be in possession of the property on their
own account.
THE facts of the case appear in the judgment of Withers, J.
Pereira, for appellant. Jayewardene, for respondents.
July, 1896. Withers, J.-
The appellant is a purchaser of certain lands at a Fiscal's sale. The sale has been confirmed by the Court, and conveyance executed in pursuance of the sale. It does not appear that the Fiscal had by himself or his agents taken possession of any of these lands between sale and execution. By section 292 the person in possession of immovable property sold in execution is bound forthwith, on confirmation by Court and of execution of conveyance, to give possession to the grantee in the conveyance.
The grantee in this case applied for a delivery order under section 287. The Court granted the order, and in doing so no doubt prima facie satisfied itself that the lands in question were in the occupation of the judgment-debtor (in execution of judgment against whom the land had been sold), or of some person on his behalf, or of some person claiming under a title created subsequently to the seizure of the property.
Such a delivery order may be enforced as an order falling under head (c), section 217, the purchaser being considered as a judgment-creditor.
217 (c) relates to a decree or order of Court "which commands the person against whom it operates to yield up possession of immovable property.
217 is the first section of chapter XXII. relating to execution.
Section 323 is the first of a series of sections relating to the execution of a decree for possession of immovable property. By that section a writ of execution in form 63 in second schedule may be taken out by a decree holder, if the latter is satisfied that he is entitled to obtain execution of his decree for possession of immovable property.
"324 prescribes how the Fiscal is to execute the writ of execution.
Section 325 and subsequent sections deal with resistance to execution of proprietary decrees.
Reading sections 292 and 323 and 324 together, it looks as if a delivery order under 292 is to be executed as a writ of possession under section 323.
It would seem to follow that if a purchaser has the same right as the holder of a decree for possession of immovable property to have the purchased property in certain conditions delivered up to him, he should have in those conditions the same remedy if the officer in charge of the order of delivery is resisted in his attempt legally to enforce it. This remedy of a purchaser has been questioned by my Lord the Chief Justice in the case Supramanian Ayer vs. Chankare Pilled D. C, Jaffna,[*1 , N. L. R., 19.] and I shall certainly not now decide the point.
The baffled purchaser in this case prayed that his unexecuted. order might be enforced by his being put into possession of the lands which were withheld from him
