Srinivasa Thero V. Sudassi Thero

1960 Present : Sansoni, J., and H. N. G. Fernando, J.

W. SIRINIVASA THERO, Appellant, and SUDASSI THERO,
Respondent

S. C. 440-D. C. Kandy, L 3167/A

Action for declaration that plaintiff was entitled to office of Viharadhipathi of a Vihara and Pansala and to the management and control of their temporalities- No possession of any property asked for -Decree entered as prayed for-Issue of writ of pot/session in respect of a room in the Pansala-Absence of jurisdiction of Court to issue such writ-Remedy of dispossessed party-Civil Procedure Code, ss. 217 (e), 325, 328-Buddhist ecclesiastical law.

A Buddhist priest sued three other priests for a declaration that he was entitled to the office of Viharadhipathi, incumbent and trustee of a Vihara and Pansala and to the management and control of their temporalities. He did not ask for possession of any property. He obtained judgment and decree as prayed for and, upon his application to execute the decree, a writ of possession was issued in respect of a room in the Pansala.

Held, that the decree entered in the action could not be construed as one which decreed possession of any property. The decree could not be said to fall within section 217 (c) of the Civil Procedure Code which relates to a decree commanding the person against whom it operates "to yield up possession of immovable property " ; nor could it fall within section 323 which applies if the decree or order is '' for the recovery of possession of immovable property or any share thereof by the judgment-creditor, or if it directs the judgment-debtor to yield or deliver up possession thereof to the judgment-creditor". The position of the judgment-creditor was no better than that of a plaintiff who obtains a declaration of title to immovable property without also obtaining a declaration of his right to the immediate possession of that property.

Held further, that, inasmuch as the Court acted without jurisdiction in issuing the writ, the person who was dispossessed of property in consequence of the execution of the writ was entitled to be restored to possession. In such a case a Court of Justice has inherent power to repair the injury done to a party by its act. The objection that the Court acted in excess of jurisdiction can be taken for the first time even at the stage of appeal.

APPEAL from a judgment of the District Court, Kandy.

T. B. Dissanayake, for Plaintiff-Appellant.

Vernon Jonklaas, for Defendant-Respondent.

Cur. adv. vult.

December 13, 1960. SANSONI, J.-

The plaintiff in the present action was ejected from a room in the Hippola Pansala in Malwatta Vihara when a writ, issued by the District Judge in case No. L. 3167, was executed. In that case the defendant sued three other Buddhist priests for a declaration that he was entitled

to the offices of Viharadipathi, incumbent and trustee of Bogahapitiya Vihara and Hippola Pansala, and to the management and control of their temporalities. The defendant obtained judgment as prayed for in that case and on 2nd August, 1957, upon his application to execute the decree, a writ of possession was issued.

Complaint was made by the defendant as judgment-creditor, under section 325 of the Code, that he could not get complete possession of Hippola Pansala, and on 13th May, 1958, the District Judge ordered that the writ be re-issued to the Fiscal to deliver possession to the defendant of a room which was locked, breaking open the door of the room it necessary At the time that order was made in Court, it was brought to the notice of the Judge that the room which was locked was claimed by the plaintiff, and the Judge thereupon directed that if the plaintiff resisted the writ officer and made a claim, that should be reported t Court.

The writ was accordingly re-issued on 17th May, and it was returned to Court on 30th May with an affidavit of the Fiscal's officer who stated that he went to the pr

Click Here to Read the rest of this document