Sobita Terunanse And Another V. Sarnapala Terunanse And Others

1933 Present : Garvin J. and Maartensz A.J.

SOBITA TERUNANSE AND ANOTHER v. SARNAPALA
TERUNANSE AND OTHERS.

134-D. C. (Inty.) Chilaw, 9,496.

Jurisdiction-Resistance to proprietary decree-By judgment-debtor- Complaint to Court-Jurisdiction of Court passing the decree-Civil Procedure Code, ss. 325 and 326.

Where resistance is offered to the execution of a decree for possession by persons who are bound by the decree, the Court which passed the decree has jurisdiction to inquire into the complaint.

Where resistance is occasioned by persons claiming the property in good faith, the question of jurisdiction is determined by the ordinary tests which govern jurisdiction in a regular action.

APPEAL from a judgment of the District Judge of Chilaw.

H. V. Perera, for appellant.

R. L. Bartholomeusz, for respondents.

January 18, 1933. GARVIN J.-

The petitioner complained to the Court under the provisions of section 325 that the officer charged with the execution of a decree for possession in his favour was resisted and obstructed by the second, third, fourth, fifth, sixth, seventh, and eighth respondents to his petition and that they did so at the instigation of the first respondent. An interlocutory order under section 377 was duly made by the Court. The respondents duly appeared and objected to the jurisdiction of the Court. Their objection was that the lands of which the officer endeavoured to deliver possession to the petitioner being lands outside the local limits assigned to this District Court it had no jurisdiction to entertain or investigate the complaint. The learned District Judge upheld the objection that he had no jurisdiction to investigate the matter of the complaint and dismissed the petition. The only question for us is this question of jurisdiction; the complaint has not yet been investigated.

Section 325 and the sections which follow it have been enacted for the purpose of providing certain summary remedies in cases in which there is resistance to the execution of decrees for the possession of property. What the law prescribes is that a complaint may be addressed to the Court, and that that Court should in the first instance investigate the matter of the complaint and if it is satisfied that resistance or obstruction was caused by the judgment-debtor or by some person at his instigation " commit the judgment-debtor or such other person to jail for a term which may extend to 30 days and direct the judgment-creditor to be put into possession of the property ". If in the course of this investigation the Court is satisfied that the resistance or obstruction had been offered by some person other than the judgment-debtor claiming in good faith to be in possession of the property on his own account it shall direct the petition of complaint to be numbered and registered as a plaint in an action between the decree-holder as plaintiff and the claimant as defendant. There is first a jurisdiction to exercise certain punitive powers so as to make a Court's decrees effective against the person or persons against whom they have been entered by compelling the judgment-debtor or any person acting at his instigation to submit to that decree upon pain of being punished by a term of imprisonment. There can be no question that that jurisdiction is vested in the Court which passed the decree. The words of section 325 which permits the judgment-creditor " to complain thereof to the Court" when read in the context, in which they appear clearly indicate that the Court to which the complaint was to be made was the Court which passed the decree and in the nature of things it is but natural and proper that resistanced. to the execution of its decrees by persons who are bound by those decrees should be dealt with by the Court whose decree is thus flouted. But where upon its investigation the Court finds that the resistance wa

Click Here to Read the rest of this document