023-NLR-NLR-V-57-ISMAIL-Appellant-and-MARIKAIR-Respondent.pdf
1954Present: Gunasekara, J., and Fernando, A.J.
ISA [AIL, Appellant, and MARIK AIR, Respondent
S. G. 14G (Inti/.)—D. G. Batltcaloa, 53GL
Execution—Decree for possession of immovable property—Issue of writ of possession—Obstruction by a transferee pendento lite—Application for re-issue of writ—Power of Court to grant -it—Civil Procedure Code, ss. 324 to -3‘?S.
In an action for declaration of title to a certain land tlio plaintiff obtaineddecree against tlio defendant. Writ- of possession in favour of the plaintiffM-ns issued, but was later returned unexecuted by the fiscal for the reasonthat a person who was not a party to tho action claimed tlio land under a deedwhich was executed in liis favour by tlio judgment-debtor during tho pendenoyof tho action and after the lis pendens had already been registered.
Held, that the claimant, being a transferee pendente lite, was a person boundby tho decree and liable to bs removed by re-issuc of writ under section 32-t oftho Civil Procedure Code. Section 357A of tlio Civil Procedure Code is notapplicable in such a caso.
j^lPPEAL from an order of tho District Court, Ratticaloa.C. flanganathan, for the petitioner-appellant.
No appearance for the- respondent.
Cur. adv. vtill.
Augusts, 1954. Ferxaxdo, A.J.—
Tlio plaintiff instituted this ac-tionon 11th November 1949 for a declarationof title to a certain land and for the ejectment of the defendant therefrom. .Decree nisi was entered against the defendant on 19th September 1950and was made absolute on 17th April 1951. Writ of possession in favourof the plaintiff was issued on 29tli September 1951, but was returnedunexecuted by the Fiscal for tho reason that the respondent to thisappeal (who was not a party to the action) claimed the land under a deedexecuted in his favour by the defendant on 20th June 1950. In October1952, the plaintiff applied to the Court by petition and affidavit for adirection to tho Fiscal to remove the respondent and any person boundby the decree from tho land. Notice of this application was served ontho present respondent who filed his objections to the plaintiff'sapplication; the only claim made in tho statement of'objections wasthat tho claimant had purchased tho land from the defendant on 20thJuno 1950.
Tho plaintiff having registered tho li-s pendens of. liis action on24th November 1949, tho respondent who acquired title from the defendantpendente lite-, would prima facie appear to be a person bound by the decreeand therefore properly removable under the writ of possession in
pursuance of s. 324 of the Civil Procedure Code. The learned District-Judge refused, however, to issue the direction prayed for and this appealis against that refusal.-'
The opinion of the learned Judgo was that tho proper procedureapplicable in such a case is that prescribed by ss. 325 to 32S of the CivilProcedure Code, and that the plaintiff may not otherwise establish thattho respondent is a person bound by tho decree. An examination ofss. 325 to 32S demonstrates that, until 1049 at any rate, those sectionswere of no avail whatever to a plaintiff in a ease wlicro resistance wasoffered by a person claiming title on a document executed pendente litebv tho judgment-debtor. S. 320 applies only where tho resistance isoffered by the judgment-debtor or some person at his instigation ; andsections 327 and 328 arc expressly declared (by s. 328 (3)) to be inappli-cable in the case of a transfer pendente life by the judgment-debtor.S. 327a was introduced by the amending Act Xo. 7 of 1949 and wouldseem to be applicable (if at all) on tho basis that a claim by a transfereependente lite Mould necessarily be regarded bjr the Court as frivolous orvexatious. The Judge docs not expressly refer to s. 327a as affordingsupport for his opinion, but, having taken that section into consideration,
I cannot think that its introduction into the Code in 1949 had tho effectof converting a procedure, which was formerly inapplicable to cases of aparticular class, into one which can bo said, not merely to be applicableto such cases but also to be the only proper and available procedure.On its face s. 327a purports only to discourage to a greater extent than- before resistance on frivolous or vexatious grounds ; and it cannot boconstrued as having the effect of depriving a judgment-creditor of othermeans of redress which tho Code ahead}' gave him.
There is yet another reason which impels me to disagree with the viewtaken by the learned Judge. If tho mere fact that the Legislature'sprovision in 1949 of a new remedy (under S. 327a) available against atransferee pendente lite can be construed to deprive a plaintiff of anyalternative remedy previously available to him against such a transferee,then, equally or a fortiori, s. 326 (which expressly provides a most effica-cious mode of ejecting an obstructive judgment-debtor} must bo hold tohave always precluded a plaintiff from seeking redress bj' the less vindic-tive course of applying for a re issue of the writ against tho judgment-debtor. 13ut it is dear that s. 326 has no such effect, for it has beenheld (Xanayakka-ra v. Xanuyakkara) 1 that tho Courts can only, actunder s. 326 if tho caso merits so extreme a punishment; accordinglyit is open to the plaintiff (and in an appropriate case oven obligatory onhim) to allow the judgment-debtor a second or third chance to scoreason, before seeking to rely on the obstruction.
What has to be decided therefore is whether tho Codo prior to 1949contemplated any proccduro by which effect could bo given to therequirement in s. 324 that the Fiscal “ shall deliver possession ….if need be by removing any person bound by the decree who refuses to vacatethe property ”. Counsel could not refer us to any judgment of this Court,but to my mind tho simplicity of the point at issue explains the absence ' .
1 (192-5) 6 C. L. J?ec.
of authority. . The Fiscal is under s. 324 entitled (and perhaps evenrequired) to remove a person who is in law bound by the decree. Butif the Fiscal declines to do so, his ignorance of the law or his fear of theconsequences of error cannot deprive the plaintiff of tho rights whichs. 324 confers on him. These rights must bo secured to him by the Courtif ho can satisfy the Court that tho person offering resistance is a personbound by tho decree, and an application in that behalf by way of petitionand affidavit, with notice to the respondent, seems perfectly appropriatefor tho purpose. I would refer in this connection to a comment inChitaley ami Annaji Kao (2nd. Edn. Vol. 2 p. 1S04) upon tho correspond-ing Order 21, Ride 35 of the Indian Code :— Therefore, if the propertyfor which a decree for possession has been made is in the occupancy of aperson claiming under a title created by the defendant subsequent tothe institution of the suit, actual j^ossession under sub-R. (1) must begiven to the decree-holder, by removing, if necessary, tho person boundbv the decree and who refuses to vacate the property ”.
In tho case before us, the plaintiff adduced evidence that tho Us pendensof his action was duly registered on 24th November 1949, and the respon-dent in his objections admitted that his claim was upon a subsequenttransfer from the defendant. Tho respondent, being a transferee pendentelite, is clearly a person bound by tho decree and liable to be removedunder s. 324.
I would accordingly set aside tho order appealed from, and remit theease to the District Court which will order the re-issue of tho writ ofpossession with the requisite direction to the Fiscal as prayed for in thoplaintiff’s petition of 14th October 1952. The plaintiff will be entitledto tho costs of this appeal and the costs of the proceedings in the DistrictCourt on that petition.
Gvkasekaka, J.—I agree.
Order set aside.