DE SILVA v. DE SILVA et al.

DE SILVA v. DE SILVA et al.

D. C, Colombo, 5,941.

 

Civil Procedure Code, ss. 217, 287, 323, 325, and 326-Obstruction to Fiscal, delivering possession of land, sold under a money decree- Commitment to jail of the person obstructing-Distinction between " decree " and " order "-Jurisdiction of Police Court to deal with such obstruction under s,, 185 of the Ceylon Penal Code.

Resistance or obstruction to the delivery of possession, ordered by the District Court under section 287 of the Civil Procedure Code. to be made to a purchaser of land sold by Fiscal in execution of a money decree, is not an offence that could be summarily dealt with by that Court under sections 325 and 326 of the Code.

Per lawrie, J. Such resistance or obstruction could be dealt, with more rapidly in the Police Court under section 185 of the Ceylon Penal Code than under section 326 of the Civil Procedure Code.

PLAINTIFF, having obtained a money decree against the defendants, purchased a land seized and sold by the Fiscal in execution of it. She obtained an order of Court under section 287 of the Civil Procedure Code for delivery of possession thereof to her or any person whom she may appoint, and she sent one Nonis Silva with the Fiscal's officer entrusted with the execution of the order to obtain possession of the land, when one Hendrick Silva, a defendant in the case, with certain others, prevented the Fiscal's officer from placing Nonis Silva in possession of the land. The plaintiff thereupon petitioned the District Court against Hendrick Silva and his agents, praying that they may be dealt with under section 325 of the Civil Procedure Code,

The Acting District Judge (Mr Felix Dias) on inquiry found that Hendrick Silva had forcibly resisted the Fiscal's officer in the

execution of the order above referred to, and committed him to jail for a period of one month, and ordered the plaintiff to be forthwith put into possession of the land.

Hendrick Silva appealed.

The case came on before Lawrie, J., and Withers, J., on 16th December, 1897, when their Lordships disagreeing, desired that the case should be listed for argument before the Collective Court.

De Saram, for appellant:-It was not competent for the learned District Judge to have committed the appellant to jail.

The provisions of section 325 and the following sections of the Civil Procedure Code refer only to resistance to execution of proprietary decrees. The decree in this case was a decree for money, and in execution of that decree the land in question was sold and purchased by the petitioner, who obtained an order for the delivery of possession of the land under section 287 of the Code; and this being only an order of Court and not a decree, the respondent could not proceed under section 325 et seq.

Section 217 of the Code speaks of a decree or order of Court, but section 325 only refers to decree for possession of land, and the appellant submits that section 325 will only apply where a particular land is in dispute and a decree is entered adjudicating on the rights of parties with regard to that land.

The Code (section 5) defines " decree" to mean " a formal " expression of an adjudication upon any right claimed or defence " set up in a Civil Court, when such adjudication, so far as regards " the Court expressing it, decides the action or appeal"; and "order" to mean "the formal expression of any decision of a " Civil Court which is not a decree."

Prom the above-mentioned definitions it is clear that what was obtained by the respondent in this case was an " order," and therefore section 325 does not apply.

The order under section 287 of the Code is enforceable as an order under section 323, but there is no provision in the Code whereby disobedience to such an order could be punished under section 325 as there is in the Indian Code (section 324), and as there was under the old Fiscals' Ordinance, 1867, section 79.

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