1948 Present : Dias and Basnayake JJ.
 
JANE NONA, Appellant, and GUNAWARDENE,
Respondent.
 
S. C. 193-D. C. Negombo, 13,959

Prescription-Execution sale-Debtor in possession after sale-Interruption- Delivery of possession by Fiscal-Undivided share-How far delivery valid-Civil Procedure Code-Section 288.
 
Appellant mortgaged an undivided half share of a field which was sold in execution and purchased by M. Order for delivery of possession was issued and the Fiscal reported that he was unable to trace the co-owners and that the purchaser failed to attend to receive possession. The Fiscal then purported to act under section 288 of the Civil Procedure Code and deliver possession to the purchaser. Appellant continued in possession of the field.
 
Held, (i) that a judgment debtor who continues in adverse possession after a sale in execution can acquire title by prescription ;
 
(ii) that symbolical possession by a purchaser at a court sale is not interruption of such possession. There must be an interruption of actual physical possession.
 
(iii) Where property is not in the occupation of anyone section 288 of the Civil Procedure Code has no application and the action of the Fiscal was a nullity.
 
APPEAL from a judgment of the District Judge, Negombo.

N. E. Weerasooria, K.C., with B. Senaratne, for the defendant appellant.
 
No appearance for the plaintiff, respondent.

Cur. adv. vult. 

April 20, 1948. Basnayake J.-
 
As security for a loan of Rs. 1,500 by deed No. 1,443 dated June 22, 1926, attested by A. D. C. Ainirthaweera, Notary Public, the defendant-appellant (hereinafter referred to as the appellant) created a mortgage in favour of two persons named Kaluaratchige Herath Appuhamy and Weerasinghe Aratchige Charlis Perera over her undivided half share of a field called Pitakotuwe Kumbura in extent four acres, two roods, and thirty-three perches, and some other lands. The mortgages above-mentioned instituted D. C. Negombo, Case No. 3,502 for the recovery of the debt due to them and in execution of the decree therein the appellant's share in the field Pitakotuwe Kumbura was sold and purchased by one Weeragoda Achchilage Mudiyanse to whom it was transferred by deed No. 140 of April 4, 1936, attested by H. C. Sansoni, Notary Public.

On February 17, 1937, an order for delivery of possession was issued. The order was in the following terms :
 
" You are hereby ordered to put the said purchaser or his agent into possession of the said lands and fields and the buildings and if need be to remove any person bound by the decree who may refuse to vacate the same."
 
On March 23, 1937, the Fiscal reported :
 
" My Officer reports that he was unable to trace the co-owners of the undivided lands and that the purchaser failed to attend and receive possession of the divided lands.",
 
and asked for an extension of time to enable him to proceed under section 288 of the Civil Procedure Code. The extension was granted. On February 3, 1938, he reported :
 
" By virtue of the hereto annexed Order for Delivery of Possession marked A issued in case No. 3, 502 of the District Court of Negombo, I have caused my Officer D. S. A. Amerasekera to deliver possession of 1, 2, 4 and 6th named undivided shares to the purchaser on January 24, 1938, in terms of section 288 of the C. P. C. and the complete possession of 3rd and 5th named lands which are more fully described in the Order for Delivery of Possession to the purchaser on the same day, as will appear from the affidavit of the said Officer, Marked B dated February 3, 1938."
 
Affidavit B referred to :
 
" I, D. S. A. Amarasekera, Fiscal's Officer, do hereby declare and affirm that I did on January 24, 1938, deliver possession of the 1st, 2nd, 4th and 6th named undivided shares in terms of Section 288 of the C. P. C. and the complete possession of 3rd and 5th named lands which are more fully described in the Order for Delivery