017-NLR-NLR-V-34-DE-ZOYSA-v.-WIMALASURIYA-et-al.pdf
De Zoysa v. Wimalasuriya.
53
1931Present: Maartensz A.J.
DE ZOYSA vz WIMALASURIYA et al.
151-2—P. C. Balapitiya 16,258.
Process server—Executing process outside division—Resistance to officer—Fiscals’ Ordinance, No. 4 of 1867, s. 8.
A person licensed to serve and execute process in the division of adistrict has no authority to execute a process outside his division.
PPEAL from a conviction by the Police Magistrate of Balapitiya.
N. E. Weerasooriya, for appellant.
Amarasekera, for respondent.
54MAARTENSZ A.J.—De Zoysa v. Wimalasuriya.
September 28, 1931. Maartensz A.J.—
The two accused in this case, A. S. Wimalasuriya and George Jaya-sekere, appeal from a conviction under section 181 of the Penal Code.They were convicted of offering resistance to and preventing R. D. G. deZoysa of Madampe, a Fiscal’s Arachchi, from taking certain movableproperty seized in possession of the first accused in execution of a writissued in case No. 29,234 of the District Court of Galle, against the firstaccused.
The accused have appealed both on the law and on the facts.
I am not prepared to interfere with the learned Magistrate’s findingon the facts.
The objection to the conviction on the law is that R. D. G. de Zoysahad no authority to execute the writ in the division of Elpitiya.
R. D. G. de Zoysa was on March 29, 1922, appointed a Fiscal’s Arachchi
“ in and for the Madampe in Wellaboda pattu of the Galle
District ” by the Government Agent of the Western Province (P 8).
The blank before the word “ Madampe ” should according to deZoysa’s evidence, be filled up with the words “ division of ”.
The writ in question was executed at Elpitiya, which is not in theMadampe division.
The question for decision is whether de Zoysa had authority underhis licence to execute the writ in Elpitiya.
The licence (P 7) issued to him on July 2, 1931, after the offence wascommitted, cannot be given retrospective effect.
The question turns on the effect to be given to the document P 2 whichis as follows : —
General Order to Headman about writs.
Writ No. 29,234, D. C., Galle.
To the Fiscal’s Arachchi of Madampe.
You are hereby ordered to execute the above writ as specified hereinbelowand to report the fact before the 20th instant.
You should demand from the defendant in the writ bearing the abovenumber the amount of the writ, and if he fails to pay the same, then seizethe properties which belong to the defendant and will be pointed out by theplaintiff coming with this (order).
(Sgd.) E. F. Edirisinghe,
Deputy Fiscal.
December 4, 1930.
Plaintiff : K. P. Periya Nadar.
Defendant : A. S. Wimalasuriya of Elpitiya.
The name of the defendant as of Elpitiya below the line is endorsedon the back of the original. There is nothing to show that it was endorsedby the Deputy Fiscal.
It was contended (1) that P 2 was not an authority issued under theproviso to section 8 of Ordinance No. 4 of 1867, and (2) that in any*event it had no legal effect as the signature of the Deputy Fiscal wasaffixed to it by a rubber stamp.
MAARTENSZ A.J.—De Zoysa v. Wimalasuriya.
55
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Process servers for the execution and service of process must belicensed by the Fiscal under the provisions of section 8 of the Fiscals’Ordinance, 1867, which enacts that—
For the service and execution of processes issued by the Courts in theIsland the Fiscal shall licence as many process servers for each district asshall appear to him to be necessary, and the licences to be issued by himshall be substantially in the form E. to the schedule hereto annexed. TheFiscal shall also have authority to revoke any licence granted by him when-ever it shall appear to him necessary to do so; provided.that it shall be lawfulfor the Fiscal or Deputy Fiscal to appoint, by writing under his hand, anyperson to execute process in any particular case
The prescribed form is as follows : —
I, Fiscal for the Province, do hereby licence
to act as Process Server for the district of .
This day of 19—
A. B.,
Fiscal.
The document P 8 which is signed by F. Bartlett as Government Agent,not as Fiscal, is not a licence contemplated by the Ordinance.
R. D. G. de Zoysa was licenced (P 6) to act as Fiscal’s Officer for thedivision of Akurale of Madampe on probation for six months in October,1916. He says he was subsequently confirmed but has lost the licenceand is unable to produce a certified copy of it as no copy was kept in theoffice.
De Zoysa is strictly speaking unable to prove that he is a licensedprocess server at all. But for the purpose of my decision I shall assumethat he had a licence for the division of Madampe.
It appears from the evidence of de Zoysa that the practice is to licenceprocess servers for divisions of a district instead of for the whole districtas contemplated by the Ordinance.
A person licensed to serve and execute process in a division of a districtclearly has no authority to serve and execute processes outside his divi-sion. De Zoysa can only derive authority to execute the writ in questionin Elpitiya from the document P 2.
Mr. Amarasekera, who said he represented the writ holder and notthe Fiscal’s Officer, R. D. G. de Zoysa, contended that by P 2 de Zoysawas appointed by the Deputy Fiscal to execute the process in caseNo. 29,234 of the District Court of Galle.
I am unable to sustain this contention. P 2 does not purport to be anappointment under the provisions of the proviso relied on. The heading“ General Order to Headman about writs ” negatives any such idea.It is, so far as I can see, the usual letter sent with a writ to a Fiscal’sOrder to whom it is entrusted for execution.
R. D. G. de Zoysa therefore had no authority to execute the writ inElpitiya division and the accused cannot be convicted of the offence withwhich they were charged.
I allow the appeal and acquit the accused.
Set aside.