Sapapathipillai V. Alagaratnam

1922 Present: De Sampayo J.

SAPAPATHIPILLAI v. ALAGARATNAM.

163-P. C. Batticaloa, 10,844.

Application, for delivery of possession by purchaser at Fiscal's sale after he had transferred the property to a third party-Resistance to Fiscal's officer-Penal Code, ss. 183 and 186-Order ultra vires-Civil Procedure Code, s. 287.

C who purchased a property at an execution sale sold it to S. S moved for an order of delivery of possession, which was refused. Thereupon C moved for an order of delivery of possession to himself, and asked that as he was not able to be present, the Fiscal be directed to put S in possession on his behalf. The accused (judgment-debtor) prevented the Fiscal from putting S in possession, and was convicted under sections 183 and 186. Penal Code.

Held, that the conviction was bad. For a conviction under section 183, the order must be lawful. Resistance to an order which is ultra vires is justified. Only the execution-purchaser can move for order for delivery of possession; a private purchaser from the execution purchaser is no party to the execution proceedings, and he cannot move for an order for delivery of posse

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