PERERA AND ANOTHER
COURT OF APPEAL
EDUSSUR1YA, J. (P/CA)
DC COLOMBO 17518/L
24™ JULY. 2000
Civil Procedure Code – S.328 – S.329 ■ Dispossession on Execution of
Decree – Rights to be established – Does Revision lie? – Alternative remedy.
Where a party who has been dispossessed on the execution of adecree claims a right to the subject matter from which he had beendispossessed, it is that party who must establish that he has beenin possession in his own right and not under or on a right flowingfrom the Judgment Debtor.
S.329 gives an alternative remedy to an aggrieved party “It is theduty of Court to carry out effectually the object of the statute. Itmust be so construed as to defeat all attempts to do so or avoid doingin a direct or circuitous manner that which has been prohibited orenjoined."
APPLICATION in Revision from an Order of District Court of Colombo.
Case referred to :
1. C. A. 141 /90 – D. C. Colombo No. 5557/ZL. C. A. M. 15.10.1990.
S. Mcmdeleswaran with P. Peramunagama for Plaintiff-Petitioner.
Kuwera de Zoysa with Ms. Medani de Silva for Petitioner-Respondent.
Cur. adv. vuli.
July 24. 2000.
EDUSSURIYA, J. (P/CA)This application in revision has been hied to set aside theorder made after inquiry into the application under Section
Sri Lanka Law Reports
(2000j 3 Sri L.R.
328 of the Civil Procedure Code by a person who had beendispossessed on the execution of the decree.
It is well settled law that where a party who has beendispossessed on the execution of the decree claims a right tothe subject matter from which he had been dispossessed it isthat party who must establish that he has been in possessionin his own right and not under or on a right flowing from thejudgment debtor.
In this case we have a peculiar set of circumstanceswherein the judgment creditor claims title from the defendantjudgment debtor who in turn claims title by inheritance on thedeath of her husband one Sonny Perera. The Petitioner, on theother hand, to the application under Section 328 claims to bethe brother of the judgment debtor’s husband and claims thathe has been put in possession of the subject matter of thisaction by his brother who as hereinbefore mentioned was thealleged husband of the judgment debtor.
It is the position of the Petitioner in the application madeunder Section 328 who is the Respondent to the presentapplication before us, that the judgment debtor was never theowner of the premises in suit, in view of the fact that thejudgment debtor was not married to her so called husbandSonny Perera who also happened to be the brother of thePetitioner in the application under Section 328. Towards thisend the Petitioner in the application under Section 328produced the marriage certificate of Padma Ranjani thejudgment debtor and a person named Nalaka, according towhich the marriage had taken place on 09.12.1974 as opposedto which the Petitioner to the present application before thisCourt had produced a marriage certificate of Sonny Perera andPadma Ranjani, according to which parties were married on18.04.1988, 14 years after the original marriage of PadmaRanjani. There is no evidence whatsoever to establishthat either the first husband of Padma Ranjani departed thisworld or that the marriage had been dissolved. In these
Letchumi v. Perera and Another (Edussuriya, J.)
circumstances Court must necessarily accept that the secondmarriage of Padma Ranjani is not a lawful marriage andtherefore no rights flow to Padma Ranjani the judgmentdebtor from Sonny Perera and therefore the Petitioner tothe application under Section 328 was in possession ofthe subject matter of this action on a right which flows fromSonny Perera.
It has also been argued by Counsel for the Respondentthat the Petitioner cannot maintain this application in view ofthe fact that an alternative remedy has been provided bySection 329 of the Civil Procedure Code to a party who isdispossessed or aggrieved by an order made under Section 328and as such the Petitioner is not entitled to come by way ofrevision. The alternative remedy provided by Section 329 isthat any party aggrieved by an order under Section 328 beingentitled to institute an action.
Mr. Zoysa in order to substantiate his argument hasdrawn our attention to the decision of this Court in CAapplication No. 141/90(1) that a person aggrieved with anorder made under Section 328 of the Civil Procedure Code isnot entitled to come by way of revision.
Justice Senanayake in the course of his judgmentcommenting on the language used under Section 329 stated,“in my view this Section gives an alternative remedy to anaggrieved party in such a situation. It is the duty of the Courtto carry out effectually the object of the statute. It must be soconstrued as to defeat all attempts to do so or avoid doing ina direct or circuitous manner that which has been prohibitedor enjoined (Maxwell Interpretation of Statutes) 12th EditionPage 137.
Further the Petitioner to the application under Section328 has produced in evidence receipts issued on the payment
Sri Lanka Law Reports
12000) 3 Sri UR.
of electricity bills in respect of the premises in suit.This application is therefore dismissed with costs fixedat Rs. 2100/-.
UDALAGAMA, J. 1 agree.
LETCHUMI v. PERERA AND ANOTHER