1926 Present: Schneider, Garvin, and Lyall Grant JJ.

FERNANDO et al v. CADIRAVELU.

143-D. C. (Inty.) Colombo, 786.

Partition-Sale of property-Order for delivery of possession-Right of purchaser-Power of Court-Civil Procedure Code, ss. 287, 839.

Per Schneider and Garvin J J. (LYALL, GRANT J. dissentiente).- A court has no power to make an order for delivery of possession in favour of a person to whom property has been sold in pursuance  of a decree for sale, entered under the Partition Ordinance.

CASE referred to a Bench of three Judges on the point whether  a purchaser of property sold in pursuance of a decree for its sale entered under section 4 of the Partition Ordinance is entitled to an order for the delivery of the possession of the property from the Court.

H. V. Perera, for 2nd and 3rd defendants, appellants.

Hayley (with Ameresekere), for purchaser, respondent.

June 8, 1927. SCHNEIDER J.-

The only question for decision in this appeal is whether the purchaser of property sold in execution of a decree for its sale .entered under section 4 of the Ordinance No. 10 of 1863 for the .partition or sale of lands held in common is entitled to an order for the delivery of its possession from the Court which make the decree. In this action the District Judge issued such an order on the Fiscal upon the ex parte application of the purchaser, the respondent to this

appeal, to whom a certificate of title had been issued under section 8 of the Ordinance. In execution of the order, the appellants who were the second and third defendants in the action and were in possession were ejected. Thereupon they moved the Court to be restored to possession on the ground that the order for the delivery of possession was ultra vires, and also on one other ground which is not material to this appeal. The District Judge held that the order was not ultra vires and disallowed the application. The appellants appealed. The two Judges before whom the appeal came on for hearing referred it to a bench of three Judges. Accordingly the appeal has come before us.

The learned District Judge gives three reasons in his judgment in justification of his holding. He says first that it has been the invariable practice in the District Court of Colombo, and in many other Courts, to issue such orders, and that a pursue curiae should be regarded as having been established. He next says that as this Court held in Hadjiar v. Mohamadu 1 that a Court after entering a final decree allotting to a particular party a particular portion of the land, has jurisdiction to issue an order for the delivery of the possession of that particular portion to the particular party although the decree itself contains no express order to that effect, it follows that a purchaser of property under a decree for the sale of the property is likewise. entitled to such an order. Lastly, he says that section 839 of the Civil Procedure Code " invests " him " with power " to make such orders as are " necessary for the ends of justice, " and that the present was an appropriate case for the Court to " grant relief " under that section.

No other reasons than those given by the learned Judge were adduced before us. Nor can I for myself think of any other reason. The learned Judge has discussed the question very well, if I may presume to say so, but I find myself unable to agree with him. I differ from the view taken by him with reluctance, because in most cases the procedure he has chosen to adopt will be found to be very convenient, but on the other hand, I can conceive case's where that procedure might result in injustice. For that reason I would not uphold an argument based solely on the ground of convenience as justification for the procedure he had. adopted. The whole object of the Ordinance is to put an end to ownership in common. That object is accomplished when the Court has entered up its final decree allotting shares