Mohideen v. Mant.
Present: Soertsz S.P.J.
MOHIDEEN, Petitioner, and MANT et al., Respondents.
174-il 75—C. R. Matale, 7,97-0.
Execution—Resistance to execution of proprietary decree—Provision forcommitting person obstructing to prison—Not penal in nature—CivilProcedure Code, s. 326.
Resistance to a writ of execution cannot be punished under the provi-sions of section 326 of the Civil Procedure Code if, subsequent to theresistance, the judgment creditor has recovered possession of the property-in question.
SOERTSZ S. P. J.—Mohideen v. Mont.
^^PPEALS from a judgment of the Commissioner of Requests, Matale.
H. V. Perera, K.C. (with him H. W. Jayewardene and G. T. Sam&ra-ioickreme), for the fourth respondent, appellant in 174 and respondent in175.
N.E. Weerasooria, K.C. (with him Walter Jayewardene), for the firstrespondent, appellant in 174 and respondent in 175.
N. Nadarajah, K.C. (with him C. T. Olegasegarem), for the petitioner,respondent in 174 and appellant in 175.
Cur. adv. vult-
March 24, 1947, Soertsz S.P.J.—
This, in my opinion, was a flagrant attempt on the part of a man calledMant to defy his landlord and to flout the law with the assistance of afew of his relations and friends. There is no merit whatever in his appealand the only reason for which I reserved my order was to enable me toconsider whether I ought not to commit the respondents to prison forthis organised resistance to the writ issued by the Court. I find, however,that the landlord has since recovered possession of the premises. I havebeen referred to a case, namely, Kumarihamy v. Bandal, in which SirAnton Bertram observed as follows: —
“The obstruction, resistance, or hindrance referred to in section 326is not declared to be punishable as a contempt of Court. Further, thespecial procedure prescribed in that section, namely, the petition ofcomplaint, is not consistent with the procedure which is prescribed inChapter 65, which is initiated by a summons. Moreover, there isexpress authority on the point. In two cases Waas v. Samaranayaka*'and Hadjiar v. Mohamadu* it has been explained that the procedurecontemplated by the section is not a criminal procedure, but is aprocedure of a civil nature, and that it is designed for the purpose ofassisting the execution by removing '* contumacious judgment-debtorout of the way
Mr. Nadarajah, for the appellant, strongly contended that the wordsof section 326 admit of an interpretation different from that of Sir Anton-Bertram, but I see no reason for not following the judgment I have justreferred to.
I would, therefore, dismiss both the appeals, but would direct that the-appellants in S. C. No. 174 do pay the costs of the respondents to that'appeal.
1 (1918) 1 C. L. Ree. Si.
(1917) i C. W. R. 371.
» (1916) 2 C. W. R. 34.
MOHIDEEN , Petitioners, and MANT et al , Respondents