Zahir v. Pcrcra
1970Present: de Kretser, J.-A. C. M. ZAHIR and another, Petitioners, and W. D. CHARLES PERERAand another, Respondents
S.C. 796j69—Application in Revision in O. R. Colombo, S9452
Civil Procedure Code—Sections 325, 32G, 327, 327A—Order made under 3. 327A—Remedy of the affected person—Revision docs not lie.
Whom, in consequence of resistance to execution of a proprietary decree,
– application.is made by the judgment-creditor under section 325 of the Civil' Procedure Codo and ho is directed to bo put in possession of the promises in'question in terms of section 327A, the Supremo Court will not allow its powersof revision to bo invoked by the person against whom such ordor is passod.
' except in tho most exceptional circumstances.
DE KRETSER, J.—Zahir v. Pcrera
Application to revise an order of the Court of Requests,Colombo.
M.Tiruchelvam, Q.C., with Ji. Manikkavasagar, for the petitioners.
B. Vannitamby, with 31. Kanagaratnam and L. 31. D. Silva, forthe plaintiff-respondent.
No appearance for the defendant-respondent.
Cur. adv. vult.
April 7, 1970. DE Kretser, J.—
The learned Commissioner of Requests has found that the claim of the2nd and 3rd Respondents who are the present petitioners that they arein possession of the premises in suit as partners with the DefendantRespondent of the firm known as Lanka Jayanthi Textiles and not assub-tenants of the Defendant, to be false and frivolous and has directedthe Fiscal to put the Plaintiff in possession of the premises by ejectingthem in terms of Section 327A of the Code. Section 327A also providesthe remedy that a person against whom such an order is made has,and I see no reason why the Respondents who have apparently notsought that remedy should be allowed to ask the Court to revise anorder which the Section itself lays down shall otherwise be final.
In the case of Gunaratne v. Dc Silva1, H. N. G. Fernando, J. said asfollows: “I would hold also that the provision in Section 327A thatthe order is final means that it is not appealable. A perfectly reasonablealternative is provided to the claimant in that he can bring within onemonth an action to establish his right to possession and if successfulin that action, be restored to possession. Just as what appears to be abona fide claim ‘ keeps out ’ the judgment creditor until the claimis regularly investigated (Section 327), so also what appears to be afrivolous and vexatious claim is insufficient to entitle the claimant tocontinue in possession and he is compelled to seek a remedy by regularaction. In each case the powers of this Court in appeal cannot be invokeduntil the regular action is tried ”.
Mutalis mutandis these appear to be cogent reasons why this Courtshould not allow its powers of revision to be invoked in respect of suchan order except in the most exceptional circumstances.
In this case Mr. Justice Wijajatilake has set aside an order made bythe Commissioner apparently because he was not satisfied that theCommissioner had not given his mind to the need for a specific findingthat a claim was frivolous or vexatious before making an order underSection 327A and he sent the case back “ for due inquiry and order underSection 327A and not under Section 327
11957) 58 N. L. It. 54S.
The Queen v. Mohatcen
The Commissioner (Mr. Devendra) who held (he inquiry so ordered liasin (lie course of an order which I have found of-much assistance heldthat the claim was false and frivolous. I see no reason to disagreewith that finding so that even if I were disposed to consider the matterin revision, the application must be refused.
Before parting with this matter I would like to say that in theseproceedings the inquiry is always in connection with the application under. the provisions of Section 325 of the Code and Sections 32G, 327 and 327Aonly provide for the making ofalternate orders by the Court in accordancewith its findings of fact at the inquiry.
In the instant ease Counsel also sought to make the point that theapplication under Section 325 was out of time as constructive possessionwas not given until long after the first effort at executing the writ. Hissubmission was that as there was no attempt- thereafter at taking effectivepossession there was no impediment or hindrance which could be thebasis for an application under Section 325. There appears to be nomerit in this contention for the Court had ordered the re-issue of thewrit and it was in that connection that constructive possession wasgiven obviously because the Fiscal was even then not able to givepossession for the tenant would not leave. The application underSection 325 was well within thirty days of that resistance to the Fiscal.
The application is dismissed with costs which I fix at 15 Guineaspayable by the Petitioners to the Plaintiff-Respondent. –
A. C. M. ZAHIR and another, Petitioners, and W. D, CHARLES PERERA and another