106-NLR-NLR-V-64-M.-S.-UMMU-ZACKIYA-Appellant-and-H.-S.-WICKRAMARATNE-Respondent.pdf
H. N. G. FERNANDO, J.— Ummu Zackiya v. Wideramaraine
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Present :H. N. G. Fernando, J.
M.S. UMMU ZACKIYA, Appellant, and H. S. WICKRAMARATNE,
Respondent
S. C. 1GS of 1961—C. R. Colombo, 71244
Resistance to execution of proprietary decree—Complaint to Court after expiry ofone month—Right of judgment-creditor to apply for re-issue of writ—CivilProcedure Code, ss. 325, 320.
Whore an application complaining of resistance to execution of a proprietarydecree is dismissed by Court on the ground that it was made after the expiryof one month from the date of the alleged obstruction, section 320 of the CivilProcedure, Code does not preclude the judgment-creditor from applying, inappropriate circumstances, for the re-issue of the writ.
Appeal from an order of the Court of Requests, Colombo.
A. Sivcifjurunathan, for the plaintiff-petitioner, appellant.
V. ThilUtirvdhav, for the defendant-respondent.
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March 18, 1963. H. N. G. Fernando, J.—
This action for ejectment was settled of consent on the 20th November1959. One of the terms of settlement was tliat the rents for the months of.September, October and November, 1959, will fall due on the 30th^.November 1959, and that in the event of the non-payment of this sum bythe 31st December 1959 the PlaintifF would be entitled to a decree inejectment. On the footing that this payment had not been made thePlaintiff applied on the 30th January 1960 for ejectment and the Courtthereupon entered decree having regard to the terms of settlement. AHthat was necessary was for this decree to provide for ejectment and itshould have been dated as on the day. on which it was signed by the
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H. N. G. FERNANDO, J.— Ummu Zackiya v. Wickramaralna
learned Commissioner, bub, instead, many other matters, some of whichdid not even form part of the settlement, were included in. the decreeand it was dated as on the date of the settlement, i.e., 20th November 1959.However, the decree did, in fact, say that in the event of the non-paymentof the sums falling due on the 30th November 1959 the Plaintiff will beentitled to a decree in ejectment. Here again what should properlyhave been said was that the Defendant must be ejected.
The Defendant was noticed and he filed certain objections against thedecree, but he withdrew his objections in order to file fresh objectionswhich latter were never filed, intimately writ of execution and posses-sion was issued on the 1st August 1960 and thereafter on the 1st December1960 an application under Section 326 of the Civil Procedure Code wasmade on the ground that the Defendant had obstructed the Fiscal. Aninquiry into this matter was fixed and later the application under Section326 was dismissed on the ground that it had been made after the expiryof one month from the date of the alleged obstruction.
Tliercafter the Plaintiff again applied on the 19th May 1961 for there-issue of the Writ. To tins application the Defendant, by his affidavitof 5th July 1961, filed objections, none of which provided a ground whythe writ should not be re-issued. At an inquiry, however, the Counselfor the Defendant took the ground that because the Plaintiff had not dulyand within time made an application under Section 326 of the Code,the Plaintiff was thereafter precluded from applying for the ro-issue ofthe Writ. In my opinion the learned Commissioner wrongly upheldtins ground of objection. Section 326 is primarily intended to confer apower of punishment against persons who obstruct the issue of writ ofpossession, and there is no provision in Section 326 which limits the rightof a judgment-creditor to apply more than once in appropriatecircumstances for the re-issue of a Writ. The order of the learnedCommissioner, therefore, cannot stand.
There has been no allegation by the Respondent in the lower Court ofany want of due diligence on the part of the Plaintiff, and, therefore,'there would be no grounds upon which the learned Commissioner couldhave refused the re-issue of the Writ.
The record will be returned to the learned Commissioner who is directedto issue writ of possession in favour of the Plaintiff and directing theejectment of the Defendant. Counsel for the Plaintiff submits that interms of the original settlement certain payments which have not beenmade are still due from the Defendant. On the other hand, Counsel forthe Defendant has argued that payments of these amounts were tenderedbut were not accepted. It will be open to the Plaintiff to require the• learned Judge to issue Writ for the recovery of these monies, but, if so,the Defendant will have an opportunity of raising any matters of factrelevant to the liability to pay the damages. The Plaintiff will be entitledto the costs of this appeal and of the inquiry on 19th July 1961.
Appeal allowed.