065-NLR-NLR-V-67-E.-H.-PERERA-Petitioner-and-F.-MUNASINGHE-and-2-others-Respondents.pdf
1961Present: H. N. G. Fernando, J.
E. H. PER ERA, Petitioner, and F. MUNASINGHEand 2 others, Respondents
S.C. 1211961—Application for Revision and Restitutio in integrum in
R. Gampaha, 6234
Execution of a proprietary decree—Resistance thereto—Procedure thereafter—Burdenof proof—Civil Procedure Code, s. 377 (6).
When obstruction is alleged by a judgment-creditor in respect of the executionof a proprietary decree, the Court must be satisfied, before it makes an orderunder section 377 (6) of the Civil Procedure Code, that the material facte ofthe petition are prima facie established. It must also appear from the recordthat the Court considered and formed an opinion upon the allegation madeby the petitioner.
At a hearing under section 377 (b) the burden is on the judgment-creditorto satisfy the Court both as to the obstruction caused and as to its havingbeen caused at the instigation of the judgmont-debtor.
Application to revise an order of the Court of Requests,Gampaha.
Colvin R. de Silva, with M. L. de Silva, for 2nd Respondent-Petitioner.
Cur. adv. vult.
June 13, 1961. H. N. G. Fernando, J.—
In an action between the plaintiff, who is a respondent to this petition,and the defendant in that action a writ of possession had apparentlybeen issued in execution of the decree previously entered. On 4thAugust 1960 the plaintiff filed a petition and affidavit alleging thatthe present petitioner and some other person had, at the instigation ofthe defendant, obstructed the Fiscal from giving possession to theplaintiff of the premises to which the decree applied. The JournalEntry of 5th August 1960 contains a Minute relative to that petitionand affidavit followed by the following order of the Commissioner ofRequests:— “ Take steps under section 377 (5) for 6.9.660. ” Aftei theparties appeared the matter was taken up for inquiry on 20th March 1960,when (according to an order of that date made by the learned Judge)proceedings had apparently commenced by an opportunity being givenby counsel for the present petitioner to lead evidence. At that stageapparently counsel for the petitioner did not call any evidence. There-after evidence concerning the alleged obstruction was led by theplaintiff and at the close of that evidence counsel for the presentpetitioner made two submissions:—
firstly, that all the proceedings were nullified by the fact that theorder made by the Commissioner on 5.8.60 was illegal, and
secondly, that he be permitted at this stage to lead evidence.
Both these submissions were rejected and the present applicationfor revision had been made in consequence. In Thuraisingham v. Kana-garatnam 1 Basnayake, C.J. pointed out that before a matter of thisnature is dealt with under section 377 (6) of the Code, the Court mustbe satisfied that the material facts of the petition are prima facieestablished, and also that it must appear from the record that the Courthas considered and formed an opinion upon the allegation made bythe person who seeks such an order. There is nothing in the recordin this case to indicate that the order of August 5th 1960 for steps tobe taken under section 377 (6) was duly made after consideration. Inthe same judgment it was decided that at a hearing under section 377 (6)the burden is on the judgment-creditor to satisfy the Court both asto the obstruction caused and as to its having been caused at the insti-gation of the judgment-debtor. Accordingly the refusal of the learnedCommissioner to permit evidence to be led on behalf of the petitionerafter the judgment-creditor had led his evidence was also wrong.
For these reasons I would set aside all orders made by the learnedCommissioner on and after 5th August 1960. The petitioner will beentitled to the costs of this application which are fixed at Rs. 105.
Order set aside.