1915. [FULL BENCH.]

Present : Wood Renton C.J., Shaw J., and De Sampayo A.J.,

SILVA v. DE MEL.

143-D. C. Colombo, 39,666.

Civil Procedure Code, ss. 328, 287, 217-Order for delivery of possession to purchaser in execution-Right of party dispossessed to take proceedings under s. 828, Civil Procedure Code.

Section 328 of the Civil Procedure Code does not apply only to cases of dispossession in execution of proprietary decrees, but to orders for delivery of possession under section 387 as well.

De Silva v. De Silva1[(1898) 3 N. L. R. 161.] distinguished.

THE facts are set out in the judgment of Wood Renton C.J.

A. St. V. Jayewardene, for the plaintiff, appellant.

Bawa, K.C., (with him B. F. de Silva), for defendant, respondent.

Cur. adv. vult.

165

February 5, 1915. WOOD RENTON C.J.-

This case raises an interesting and important question under section 828 of the Civil Procedure Code. The plaintiff sued certain debtors of his on a promissory note and obtained judgment against them. In the execution of the decee certain premises in Hunupitiya, Colombo, were seised and sold to the defendant. The defendant obtained an order for delivery of possession and dispossessed the plaintiff, who thereupon instituted proceedings under section 828 of the Civil Procedure Code. The learned District Judge accepted the petition presented by the appellant under that section and directed that it should be treated as a plaint. Objection was, however, subsequently taken on behalf of the defendant that section 828 applies only to cases of dispossession in execution of proprietary decrees, and has no application to orders for delivery of possession under section 287 of the Code. The learned District-Judge upheld this objection, vacated his order as having been made improvide, and dismissed the petition. The plaintiff appeals.

The question has been referred to three Judges in view of the decision of Sir John Bonser C.J., Lawrie J., and Withers J. in De Silva v. De Silva.1[(1898) 3 N. L. R. 161.] If that decision directly governs the point at issue, and is an authority for the proposition that orders under section 287 of the Code are excluded from the scope of the whole group of sections dealing with resistance to the execution of decrees, it is clearly, binding upon us. I am of opinion, however, that it might fairly be considered as limited in its application to sections 325 and 326, which attach penal consequences to resistance to, or obstruction of, the execution of writs in certain cases. The Judges held, it is true, that the word " decree " in section 325 cannot be read as if it were equivalent to " order," but both Sir John Bonser and Withers J. justify this interpretation on the ground that the enactment is one in which the liberty of the subject is concerned. Lawrie J., although he concurred in the view expressed by his colleagues, had serious doubts as to its correctness-doubts which, with the utmost respect, I confess that I fully share. On the ground that I have stated, I am of opinion that, in spite of De Silva v. De Silva,1[(1898) 3 N. L. R. 161.] we are at liberty to construe section 328 for ourselves. In view of the provision in section 287 that an order for delivery of possession may be enforced as an order falling under section 217 (C) (the purchaser being considered as judgment-creditor), of the use of the words " or order " in section 828 and of their subsequent omission, which must have been per incuriam, it appears to me that the Legislature intended to put orders under section 287 on the footing of decrees for the purposes of the group of sections with which we are here concerned, and that we ought to interpret section 328 in this sense so as to effectuate its clear intention.

I agree to the order proposed by my brother De Sampayo.

SHAW J.-

I agree. I think the group of sections of the Code 323 to 330 relate to both " decrees " and " orders, " and that th