034-NLR-NLR-V-48-JOHN-SINGHO-Appellant-and-BEETAN-SINGHO-et-al.-Respondents.pdf
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NAGAXJN&AM AJ.—John Singho v. Beetan Singho.
1947Present: Nagalingam A-J.
JOHN SINGHO, Appellant, and BEETAN SINGHO et al^
Respondents.
196—C. R. Colombo, 88£72.
Execution—Resistance to execution of proprietary decree—Person obstructing,ostensible owner of share of premises in question—Evidence showing thatresistance was in fact at the instigation of judgment-debtor—CivilProcedure Code, ss. 325, 326.
In the execution of a decree for the possession of certain premises-the officer charged with the execution of the writ was obstructed by thethird respondent in whose favour there was a deed of purchase executed,by a person alleged to have title ter a share of the premises. The evidence,however, showed that the deed produced by the third respondent wasone obtained in his favour by the judgment-debtor with a view toprevent the judgment-creditor from obtaining possession of the premises.
Held, that the third respondent was liable to be punished under theprovisions of sections 325 and 326 of the Civil Procedure Code.
A
PPEAL from a judgment of the Commisisoner of Requests,Colombo.
N. Nadarajah, K.C. (with -him H. W. Jaye'wardene), for the plaintiff,appellant.
S. W. Jayasuriya (with him C. Chellappah), for the first defendant,,respondent.
W. Thambiah (with him T. Paramasothy), for the second defendant,respondent.
L. A. Rajapakse, K.C. (with him T. Paramasothy), for the thirddefendant, respondent.
Cur. adv. vult.
January 15, 1947. Nagalingam A.J.—
This case furnishes a typical example of the case with which a tenantcan hold his landlord at bay for a period of years notwithstanding that theCourt has entered a decree in favour of the landlord for ejectment of thetenant. The plaintiff-appellant instituted this action for rent andejectment against the first respondent, his tenant, as early as February1, 1943. After trial, on March 17, 1943, judgment was entered againstthe tenant directing his ejectment from the premises. The tenantpreferred an appeal and execution proceedings were stayed in consequence.On March 1, 1944, the appeal was dismissed. The landlord took outwrit of ejectment and on March 3, 1944, the Fiscal’s officer who went todeliver possession- was obstructed by the second respondent who claimedto be a sub-tenant under the first respondent. The landlord made anapplication under section 325 of the Civil Procedure Code and thatapplication was compromised between the parties whereby it was agreedthat the two respondents should deliver over possession of the premisesto the landlord on August 31, 1944, and that they should not in the meantime sublet the premises to a third party. Possession not having beendelivered, in terms of the adjustment, the landlord made application orr
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NAGALINGAM AJ.—John Singho v- Beetan Singho.
September 2, 1944, for writ of ejectment and after inquiry writ wasallowed but was returned by the Fiscal unexecuted on September 26,1944, on the ground that the third respondent had resisted the writofficer in his attempts to deliver over possession. The landlord wasagain driven to make an application under section 325 of the CivilProcedure Code, which is the present application. The application wasfiled as early as September 30, 1944. After inquiry the learned Com-missioner dismissed the application on March 23, 1945, holding that the3rd respondent in resisting the Fiscal acted not at the instigation ofeither of the other two respondents, but independently on his own in theexercise of a right claimed by him bona fide under a deed of purchaseexecuted in his favour by a person alleged to have title to a share of thepremises.
The learned Commissioner has found affirmatively that the resistanceoffered by the second respondent on March 3, 1944, was at the instigationof the first respondent and that the alleged subletting of the premiseshy the first respondent to the second respondent was, to use the learnedCommissioner’s language, “ a blind to enable the first respondent tocarry on the business ”. The learned Commissioner, however, foundhimself unable to arrive at a similar view in regard to the conduct of thethird respondent, but I regret I cannot share the difficulties whichbeset him and constrained him to take a contrary view. Admittedly, theevidence given by the third respondent clearly establishes that thealleged subletting to the second respondent was a nominal one andthat it was the first respondent who carried on the business even afterthe alleged transaction and even at the date when the second respondentobstructed the Fiscal from delivering possession on March, 1944. Accord-ing to the evidence of the second respondent, it was the third respondentwho had the management of the business during the time that he wasregarded as the sub-tenant of the respondent. It is in evidence that thethird respondent was a servant of the first respondent and that the firstrespondent yet visits the shop almost daily. It is true that the thirdrespondent did produce deed 3R1 of August 10, 1944 showing that hehad acquired title to a 1/24 share inter alia of the premises in questionand that nc less than a sum of Rs. 7,000 had been paid as consideration.It is significant that although the transaction was of such large magnitude,search was dispensed with, and what is more, the evidence of the notarywho attested the deed, which has not been considered by the learnedCommissioner, proves that the third respondent, the vendee, was neverpresent to give instructions or even to pay the money or at any time inconnection with the execution of the deed of sale but that it was the firstrespondent who was present and that it was he who paid the money.
It has been argued that the first respondent attended to the trans-action on behalf of the third respondent out of a sense of gratitude to anold employee whose welfare was dear to his heart and that the employer’sconduct should not be invested with any taint of self-interest. It hasalso been urged that if the transaction was one which was intended forthe benefit of the first respondent himself he would probably not be sofoolhardy as to invest such a large sum as Rs. 7,000 in the name of onewho stands in relationship to him as only a paid servant. Though,, no
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NAGALINGAM AJ.—John Singho v. Beetan Sing no.
doubt, the second ground urged may at first sight appear to have somemerit in it, nevertheless when one takes into consideration the simpleexpedient of having a non-notarial document executed so as to safeguardthe interest of the beneficial owner, little or no risk can be really saidto be run by having the deed executed in favour of the servant, but noexplanation has been suggested that would carry conviction to one’smind as to why a person in the position of a servant who, if his story betrue, was investing his accumulated savings of a life-time in the purchaseof a property should act with such indifference as not to take the slightest,interest in regard to the transaction. The evidence of the plaintiffshows that even at the date of inquiry, that is to say, after the executionof the deed the first respondent was yet in the premises conducting thebusiness.
In these circumstances the probabilities are preponderatingly in favourof the plaintiff’s contention that the deed produced by the third res-pondent is one obtained in his favour by the first respondent with a viewto continue to baulk all attempts of the plaintiff to obtain possession ofthe premises. It must be remembered that had the first respondentobtained the deed of conveyance in his own favour he could even thennot have hoped to have been able to resist the plaintiff from obtainingpossession of the premisec. It is therefore easy to see why the firstrespondent had perforce to obtain the deed in favour of a third party,and who better than a trusted servant, especially if he be one who but forthe assistance of the employer would be incapable of doing anythingeven for himself ? I therefore reach the conclusion that the resistanceoffered by the third respondent was at the instigation of the first res-pondent. The second respondent appears to me to have been a toolin the hands of the first respondent just as the third respondent now is,and I am satisfied that the second respondent has no interest and takesno part in the present obstruction presented by the third respondent.
I therefore make order that the third respondent be committed tojail for a term of 30 days and that the Fiscal be directed to place thejudgment-creditor in possession of the property. As there is no evidenceof obstruction by the first respondent, I make no order against himbut the first and third respondents will jointly and severally pay to theplaintiff the costs of the proceedings had in the Court below and of theappeal. The second respondent will bear his own costs.
No order against the first and second respondents_
Appeal against the third respondent allowed.