Section 324 of the Civil Procedure Code

Legal Submissions

1. In line with the requirements set out in Section 328 of the CPC

Section 328 of the CPC states as follows;

“Where any person other than judgement debtor or a person in occupation under him is dispossessed of any property in execution of a decree, he may, within 15 days of such dispossession, apply to the court by petition in which the judgement creditor shall be named Respondent complaining of such dispossession. The court shall thereupon serve a copy of such petition on such Respondent and require such Respondent to file objections, if any, within fifteen days of the service of the petition on him. Upon such objections being filed or after the expiry of the date on which such objections were directed to be filed, the court shall, after notice to all parties concerned, hold an inquiry. Where the court is satisfied that the person dispossessed was in or on account of some person other than the judgement debtor, it shall by order direct that the Petitioner be put into possession of the property or part thereof, as the case may be.”

“තීන්දු ප්‍රකාශයක් ක්‍රියාවේ යෙදවීමේදී විනිශ්චිත ණයකරු හෝ ඔහු යටතේ බුක්ති විඳින තැනැත්තෙකු හෝ නොවන යම් තැනැත්තෙකු යම් දෙපලක සන්තකයෙන් පහ කරනු ලැබූ අවස්ථාවක, ඔහු විසින්, තම එසේ පහ කරනු ලැබූ දින සිට දින පහළොවක් ඇතුලත, එම පහ කිරීමට විරුද්ධව පැමිණිලි කරමින්, විනිශ්චිත ණය හිමියා වගඋත්තරකරුවෙකු ලෙස නම් කර පෙත්සමක් මඟින් අධිකරණය වෙත ඉල්ලුම් කල හැකිය. ඉක්බිතිව අධිකරණය විසින්, ඒ පෙත්සමේ පිටපතක් ඒ වගඋත්තරකරු වෙත භාර කොට යම් විරෝධය පෑම් වෙතොත් ඒවා ඒ පෙත්සමේ පිටපත තම වෙත භාර දෙනු ලැබීමෙන් පසු දින පහළොවක් ඇතුලත ඉදිරිපත් කරන ලෙස එකී වගඋත්තරකරුට නියම කල යුතුය. ඒ විරෝධය පෑම් ඉදිරිපතිදිරිපත් කරනු ලැබූ විට හෝ ඒ විරෝධය පෑම් යම් දිනයක ඉදිරිපත් කරන ලෙස නියම කරනු ලැබුවේද ඒ දිනය ඉකුත් වීමෙන් පසු, අධිකරණය විසින්, අදාල සියලුම පාර්ශවකරුවන් වෙත දැනුම් දීමෙන් පසු විභාගයක් පැවැත්විය යුතුය. සන්තකයෙන් පහ කරනු ලැබූ තැනැත්තා තමා වෙනුවෙන්ම හෝ විනිශ්චිත ණයකරු නොවන වෙනත් තැනැත්තෙකු වෙනුවෙන් ඒ සම්පුර්ණ දේපල හෝ ඉන් කොටසක හෝ සන්තක දැරූ බවට අධිකරණ සැහීමකට පත්වන අවස්ථාවක පෙතම්කරු අවස්තචෝචිත පරිදි එකී දේපලෙහි හෝ කොටසෙහි හෝ සන්තකයට පත් කල යුතු යැයි අධිකරණය විසින් ආඥාවක් මඟින් විධානය කල යුතුය.”

Appuhamy v Weerathunga 23 NLR 467

“We have to consider, in the first place, whether it is open to us to exercise these powers on the application of an aggrieved person not a party to the record. There seems to be no doubt that we may exercise these powers of our own motion. If that is so, I think we may justly exercise them when an aggrieved person brings to our notice the fact that, unless the decree is amended, he will suffer injustice. We have, therefore, to consider the facts of the case . . .”

Pathirana v Ahangama (1982) 1 SLR 392

“In an action under Section 328 of the Civil Procedure Code the only question that arises is that

of possession and not title.”

Esabella Perera Hamine v Emalia Perera Hamine (1990) 1 Sri LR 8

“The ambit of section 328 is best revealed by an examination of the matters to be considered by Court upon a complaint being made in terms of that section. The Court has to consider whether “ the person dispossessed was in possession of the whole or part of such property on his-own account or on account of some other person other than the judgment - debtor “. It is only if the Court is satisfied on this matter that it can order restoration to possession of that person. Therefore it is clear that section 328 is a specific remedy provided by law to a person who is in possession of property on an independent right, (that is a right independent of the judgement - debtor) to complain of a wrongful dispossession upon the execution of the writ. This section does not empower a person who has been dispossessed by a writ or order issued contrary to the procedure provided by law to address his grievance to Court. It is not a means to challenge the antecedent validity of the writ of execution itself. It is a means to challenge the manner in which the writ was executed and to be availed of by a person who is not liable to be dispossessed of the property.”

Rosahamy v Diago 3 NLR 203

“it was held that the investigation on an application numbered and registered as a Plaint under Section 328 of Civil Procedure Code should be limited to the question as to whether the applicant is entitled to be restored in possession of the property claimed by him. The question of title should not be gone into.”

Arif v Kandasamy (1982) 2 SLR 741

“Section 328 provides for the investigation of a Petition by any person other than a Judgment - debtor or person in occupation under him, who seeks to be put in or restored to possession.” Appuhannadige Kotahewage Lesly Ariyasinghe v. Kusuma Sri Wanasinghe [SC Appeal No. 176/2016, 23/03/2018]

Sisira J De Abrew J. held that;

“In order to succeed an application under Section 328 of the CPC the following matters must be established.

1. The person making the application is not the judgement debtor or is not a person holding the property under the judgement debtor.

2. The Person making the application was in possession of the property at the time of the execution of the writ.

3. The person making the application was dispossessed of the property as a result of the execution of the writ.”

The Petitioner’s right to the subject matter is independent from that of the Judgement Debtor/ Plaintiff-Respondent.

2. Mere Technicality v. Fundamental Error

Alwis v. Rafenstein [2004] 2 Sri.L.R 102

Nanayakkara, J.

“ it is settled law, that rules of procedure in making an application to court should not be used to hinder administration of justice but to eliminate delay and facilitate due administration of justice.

Eliyas v. Cader [SC Appeal No. 50/2008, 28/06/2011]

“The objection taken up by the 2nd Defendant, which was highly technical, could have been taken up by him before filing answer in terms of S.46(2) of the Civil Procedure Code as was held in Actalina Fonseka v Dharshani Fonseka 1989 (2) SLR 95 rather than waiting to take it up in his answer and thereafter when the matter was taken up for trial while framing issues. It is a highly technical matter which has delayed the dispensation of justice in this case regarding a matter which needed quick disposal. For the proper dispensation of justice, raising of technical objections should be discouraged and parties should be encouraged to seek justice by dealing with the merits of cases. Raising of such technical objections and dealing with them and the subsequent challenges on them to the superior courts takes up so much time and adds up to the delay and the backlog of cases pending in Courts. Very often the dealing of such technicalities become only an academic exercise with which the litigants would not be interested. The delay in dispensation of justice can be minimized if parties are discouraged from taking up technical objections which takes up valuable judicial time. What is important for litigants would be their aspiration to get justice from courts on merits rather than on technicalities. As has often been quoted it must be remembered that Courts of law are Courts of justice and not academies of law.”

Perera v. Geekiyana [2007] 1 Sri.L.R 202

“The original Court Judge should have given her mind to the question whether the objection raised by the defence is valid (prior to dismissal of the plaint) for the following reasons:

(a) Is there any prejudice or injustice caused to the defence?

(b) Is the objection of a trivial nature, which can be cured?

(c) Is an amendment of the caption really necessary?

(d) Should the merits of the case be considered and permit the parties to proceed to trial rather than dismissing the case without considering the merits, merely because plaintiff took the view that there is no need to amend the plaint.

(e) Is it not apparent on a perusal of the plaint that with or without an amendment to the

caption scope of the action or its character would not change.”

Inaya v Lanka Orix Leasing Company Lrd. [1999] 3 SLR 197

Jayasinghe J

“I am firmly of the view that technicalties should not be allowed to stand in the way of Justice,

but, however, the basic requirements of the Law must be fulfilled.”

Haripala v Mallika Fernando & others [2005] 1 SLR 417

S.W Jinasena v. R.M. Vithanage CA 319/94 (BASL LJ)

Sirinivasa Thero v. Sudassi Thero 63 NLR 31

“ … on 2 nd July, the Plaintiff filed a Petition and Affidavit; he asked that his application be numbered as a Plaint and proceedings taken under Section 328, and the that he be restored to possession of the room. The Plaintiff was examined on oath and the Judge directed that the Petition be numbered as a Plaint, and that the Plaint in proper form be filed… The question now arises as to what Order we should make on this Appeal. The Plaintiff asked the Court to restore him to possession of the room, because he has been dispossessed of it in the execution of the Decree. Section 328, no doubt, contemplates dispossession under for possession of immovable property, but this is not a matter which we can allow to stand in the way of the Plaintiff , for we must have regard to the substance rather than form. Justice requires that he should be restored to the position he occupied before the invalid Order was made, for it is a rule that the Court will not permit a suitor to suffer by reason of its wrongful act.

… it is power which is inherent in the Court itself, and rests on the principle that a Court of Justice is under duty to repair the injury done to a party by its act.”

Page 28 of the Civil Procedue in Ceylon by K.D.P Wickramasinghe

Page 93 of Civil Procedure in Ceylon by Wickramanayake

Page 269 of the Code of Civil Procedure by K. Balansingham

Section 839 Civil Procedure Code

Nothing in this Ordinance shall be inherent deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process.

Nanayakkara Associates is a Law Firm specialized in Civil Law, Commercial Law, Conveyancing and Company Secretarial work.