086-NLR-NLR-V-64-K.-P.-SOMAWATHIE-Petitioner-and-B.M.COORAY-Respondent.pdf
Somawathie v. Coway
495
Present r Weerasooriya, J.
K. P. S OM AWATHUE, Petitioner, and B. M. CO Oil AY, RespondentS. C. 406—Application in Revision in C. R. Colombo, 74824
Kxecution of proprietary decree—Resistance, occasioned by a person other than judgment-debtor—Order of Court directing judgment-creditor to be put in possession—Remedies of aggrieved parly—Poioer of Court to order judgment-creditor to givesecurity pending subsequent action—Right of appeal—Revision—Civil ProcedureCode, ss. 320, 320, 327, 327A.
Tho reviaionary powers of the Supreme Court may be invoked in a cosowhere, in consequence of resistance by a person other than the judgment-debtorto the execution of a proprietary decree, an order is made by Court under.section 327A of the Civil Procedure Code against the person resisting.
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The power given to the Court under section 327A to make an order that the
. judgment-creditor be put in possession includes a power to impose such terms. as the Court may think fit in regard to the giving of security by the judgment-creditor for the due performance of the decree which would be entered in theaction filed in terms of that section by the party against whom the order ia.passed.
Quaere, whether there is a right of appeal from an order mode undersection 327A of the Civil Procedure Code.'
496
WEEBASOOBIYA, J.—Somawcithic v. Gooray
Application to revise an order of the Court of Requests,Colombo.
T.Nadarajah, for the petitioner.
S. Sharvananda, with M. T. M. Sivardeen, for the respondent.
Cur. adv. vult.
October 11, 1961. Wbeeasoobiya, J.—
The respondent to this application filed C. R. Colombo Case No. 74824against one Mahadevan for the recovery of arrears of rent in respect ofcertain premises of which the latter was said to be the tenant, for hisejectment therefrom and damages. The petitioner was at the timemarried to Mahadevan and living in the same premises. Mahadevanand the petitioner fell out and Mahadevan left the premises. The peti-tioner then instituted proceedings against Mahadevan for a divorce onthe ground of malicious desertion, and eventually obtained a decree inher favour.
On the 24th April, 1961, while the divorce proceedings were pending,Mahadevan consented to judgment being entered against him as prayedfor in C. R. Case No. 74824. On the 8th May, 1961, writ for delivery ofpossession of the premises issued to-the fiscal, but according to a petitionsubsequently filed by the respondent under section 325 of the CivilProcedure Code he complained that the writ could not be executedbecause of resistance offered to the fiscal’s officer by the petitioner andthree others, and he moved that they be dealt with under sections 326, 327and 327A of the Code. The position taken up by the petitioner at theinquiry into the respondent’s complaint was that from about October,1959, she was accepted as the tenant of the premises by the respondent,that she had been paying rent to him on that basis thereafter and is entitledto remain in possession. This plea was rejected by the learned Commis-sioner of Requests. He held that the resistance offered by the petitionerand the three others was frivolous and vexatious and directed that writshould issue against all of them under section 327A. This order wasmade on the 25th August, 1961. On the same day the petitioner filed thepresent application to have that order revised and for stay of execution,of the writ. On the 29th August, 1961, she also filed action No. 9610Lin the District Court of Colombo, in terms of section 327A, to establishher right to the possession of the premises.
Section 327A, which was introduced by the Civil Procedure Code(Amendment) Act, No. 7 of 1949, provides as follows :—
“ If the resistance or obstruction was occasioned by a person otherthan the judgment-debtor and the Court finds that the claim of suchperson to be in possession of the property, whether on his own accountor on account of some person ether than the judgment-deb tor is frivolousor vexatious, the Court may by order direct the judgment-creditorto be put in possession of the property :
WEERASOORIYA, J.—Somawathie v. Cooray
497
The person against whom such order is passed may within one monthinstitute an action to establish the right which he claims to the posses-sion of the property, but subject to the result of such action, if any,the order shall be final. ”
. Mr. Sharvananda who appeared for the respondent, in taking objectionto this application being entertained, submitted that the only remedyopen to a person against whom an order under section 327A has beenmade is to file an action to establish the right which he claims to thepossession of the property, as provided in the second paragraph of thatsection. If Mr. Sharvananda is right in his submission, even though thepetitioner may have a prima facie valid claim as tenant to be in possessionof the premises, and the case should have been dealt with as one fallingunder section 327 of the Civil Procedure Code, and not tinder section327A, she has no right of appeal from the order of the Commissionerwhich, if given effect to, will result in her being forthwith ejected fromthe premises and the respondent being placed in possession.
Mr. Sharvananda relied on the judgment of my brother H. N. G.Fernando in Gunaraine v. de Silva1 where he held that no appeal liesagainst an order made under section 327A. In the case of Arlis Appuhamyet al. v. Siman 2 an order under section 330 (1) of the Civil Procedure Codewas held by Dias, J., to be an appealable order. Section 330 (2) is interms similar to the terms of the second paragraph of section 327A inthat it enables a party against whom an order under section 330 (1) hasbeen made to institute an action within one month to establish the rightwhich he claims to the possession of the property, and subject to theresult of such action, the order is declared to be final. The decisionsin these two cases do not appear to be reconcilable.
; i The question whether an appeal lies from an order under section 327Adoes not, however, arise for decision by me in the present application,in which the revisionary powers of the Supreme Court are being invokedwith a view to obtaining relief from the order of the Commissioner. Itmay be that the petitioner was advised to make this application on thebasis that she had no right of appeal from an order under section 327A,as decided in Gunaratne v. de Silva (supra). But even if that decision iscorrect, I do not think that the provisions of section 327A in any wayaffect or limit the powers of this Court to revise such an order. Iwould, therefore, hold that the present application is one that may beentertained. But as regards the merits, although the petitioner allegedthat she was accepted as the tenant of the premises by the respondentfrom about October, 1959, she has no document which supports her on thepoint. Moreover, she admitted that all rent receipts issued thereaftercontinued to be in the name of Mahadevan. It seems to me, therefore,that the learned Commissioner was justified in dealing with the case asone falling under section 327A. The power given to the court underthat section to make an order that the judgment-creditor be put inpossession includes, in my opinion, a power to impose such terms as the’ (1957) 58 W. L. R. 542.-* {1947) 48 N. L. R. 298.
498 SRI SKANDA RAJAH, J.—Mansoor v. The Minister of Defence
and External Affairs
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court may think fit in regard to the giving of security by the judgment-creditor for the due performance of the decree entered in the actionfiled in terms of that section by the party against Avhom the order ispassed. I accordingly direct that before the respondent is put inpossession of the premises he should give security in such sum as may.*be determined by the Commissioner of Requests for the due performanceof any decree (subject to appeal) which may be entered against him in
C. Colombo Case No. 961(XL. Subject to this variation of the orderpassed by the Commissioner under section 327A, the application isdismissed.
I make no order as to costs.-• • t
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Application dismissed.