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Present: Loos A.J.G-UNASEKEBA v. POMPEUS
335—C. B. Colombo, 33,903. .
Court of Request*—Jurisdiction to- issue writ for over Rs. 300—Section 76,
■ 'Civil Procedure Code.
A Commissioner of Bequests has jurisdiction to issue a 'writ formore than Bs. 800 and costs if it be in accordance with .the decree• entered previously. It is too late to take the objection to juris-diction when writ is issued.
fJiHE facts appear from the judgment.
V. Perefa (with him De Alwis), for appeUant.De Soyza, for plaintiff, respondent.
Cur. adv. vult.
March 17, 1919^ Loos A.J.—
The plaintiff sued the defendant in this case for the recover; of asum of Its. 300 as rent of certain premises for eleven months, atBs. 50 per mensem (waiving his claim to a stun of Bs. 250 in orderto bring the action in the Court of Bequests), and for damages atBs. 50 per mensem, as the defendant had failed to quit the premises,although he had received notice to do so on January 31, 1913.
The defendant failed to appear apparently, and judgment wasentered in plaintiff’s favour for Bs. 300, and damages at Bs. 50 permensem from May 1, 1913, till delivery of possession of the premisesto the plaintiff, and for ejectment* of the defendant therefrom. Writof execution issued and re-issued in due course several times, andthe Fiscal reported a failure to pay the amount and the absenceof property for seizure, the last of such reports being made onJanuary 30, 1914.
On September 5, 1918, the plaintiff again moved the re-issue ofthe writ, supporting his application by an affidavit, in which hedeposed that he had exercised due diligence, but was unable to findproperty belonging to the defendant, and that he was crediblyinformed that the defendant is now possessed of property, and thatthe full amount of the decree is still due. The defendant showedcause against the application, limiting his objection to the one point,that there had been a failure to exercise due diligence.
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The learned Commissioner found in plaintiff’s favour, and alsoconsidered the question, which appears to have been incidentallyraised at the argument, as to whether he had power to issue awrit for more than Bs. 300 and costs, it being contended, on theauthority of Hewavitarana v. Marikar,1 that the Court had no powerto do so. The learned Commissioner held that the writ was inconformity with the decree, that it was not competent to him to gobehind the decree, and ordered the writ to re-issue. .
The defendant has appealed against that order, and the onlypoint argued in this Court was that the Commissioner had nopower to order the writ to re-issue for a sum in excess of As. 300and costs.
Section 76 of the Civil Procedure Code provides that where thedefendant intends to dispute the jurisdiction of the Court, he mustdo so by a separate and distinct plea expressly traversing theaverment of jurisdiction. In his case tire defendant was in default,and no answer was filed by him, so that there was no plea as to•' jurisdiction raised by him. The decree has, in faot, been enteredfor an amount in excess of the jurisdiction of the Court of Bequestswithout any demur on the part of the defendant, and has been inforce since 1913.
Can the defendant now take the objection that the learnedCommissioner had no power to order a writ of execution to issuefor the recovery of the amount of the decree? The Court had nopower to refuse the application for execution, provided that it wasin conformity with the decree, on the ground that the amount forwhich such decree has been entered is in excess ot the jurisdictionof the Court, and the plaintiff is entitled to his writ, which is inconformity with the decree entered in the case, and to recover .theamount decreed, so long as that decree remains in force.
The defendant’s counsel sought to rely on the authority of thecase of Hewawitarana v. Marikar (supra), already referred to above,but the point now raised did not arise in that case, for there thedecree itself was attacked on the ground that the Court had nojurisdiction to enter such a decree.
I would affirm the order appealed against, with costs.
1 (1910) 19 N. L. B. 239.
GUNASEKERA v. POMPEUS