111-NLR-NLR-V-23-MOHOMADO-LEBBE-v.-AHAMADO-ALI-et-al.pdf
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1622.
Present: Schneider J:
IfOHOMADO LEBBE v. AHAMADO ALE el al
51—C. A. Colombo, 56,809.
CM Procedure Code* s. 32$, et seq.—Purchaser placed in possession—Obstruction floe months thereafter,>
A purchaser at a Fiscal’s sale was placed in possession of theproperty sold on March 18. 1921. He alleged that the secondrespondent hindered him in taking complete and effectual possessionof the premises, and played in terms of section 328 of the C&vilProcedure Code that the second respondeat be ejected.
Held, that the summary procedure laid down in section 325et se> did not apply to this case, as the obstruction was five monthsafter the purchaser was placed in possession. “ The hindrance orobstruction should be at the time of giving of possession, or shortlythereafter.”
rj^HE facts appear from the judgment.
Coder, for second respondent, appellant.Rajakariar, for petitioner, respondent.
June 16,1922. Sohkieidsr J—
The petitioner in this matter is the purchaser of certain propertysold by the fiscal in execution of a writ. It appears that he ob-tained an order for possession. – In his petition he states that theFiscal placed him in possession of the property on March 18,1921,but that on August 26 the second respondent hindered him intaking complete and effectual possession of the premises, and wasin possession of them. The petition proceeds to pray that in termsof section 328 of the Civil Procedure Code that the second respondentbe ejected and the petitioner be given complete possession. Thepetition was supported by an affidavit. Then followed a motionby the petitioner’s proctor that for the reasons stated in the petitionhe moved in terms of section 328 that the second respondent beejected. Subsequently notice of this motionappears to have issuedto the second respondent. The second respondent appeared inobedience to thiB notice, and the matter was fixed for inquiry. Onthat day arguments Seem to have been put before the Commissioneron both sides. It was contended on behalf of the petitioner that
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the second respondent must be ejected. The learned Commissionerthereupon made the following order:—*
“I agree. There is no doubt that possession was with petitioner.Second respondent to be ejected; Petitioner to have hiscosts,0
It seems to me that the whole procedure and this order are mostextraordinary. Section 326 distinctly indicates the procedurewhich should have been followed, namely, an application by way ofpetition and affidavit and an order under section 377 (6). Insteadof obtaining such an order, the proctor for the petitioner obtaineda notice of a motion that the second respondent should be ejected.Section 327 indicates what should be done if a bona fide claim weremade by the person alleged to have offered the hindrance to bem possession of the property on his own account. The secondrespondent was not a judgment-debtor, and, therefore, his claim,wbyfh he placed before the Court by way of an affidavit, shouid havebeen investigated under the provisions of section 327, and aftersuch investigation the petition'should have been registered and num-bered as a plaint. Thereafter the ordinary procedure should havebeen followed in the trial of the dispute and itsdecision. • Instead oftnerp being a trial or any sort of inquiry, the learned Commissionerhas summarily ordered that the second respondent be ejected, aprocedure which, as I have already pointed out, is in direct contra*
diction of the. express provisions of the Code. But it seems to methat the petitioner is out of Gouit for another reason in regard to theprocedure he has followed in this case. Upon the allegations inhispetition and affidavit he had been put in possession on March 18,1921. The hindrance complained of was on August 20, 1921.Section 326 was not intended to apply to a case of this kind Thehindrance or obstruction should be at the time of giving of possessionor shortly thereafter. It cannot be said that an interval of fivemonths is a short period This construction of section 325 has beenadopted in the case of Mentha v. Eamy.l Unless that principleof construction be adopted, it will be open to any person who hadbeen placed by the Fiscal to come into Court after a long interval oftime, say, seven or eight years, and adopt this summary procedurein order to have his dispute settled It is impossible to take theview that the section was intended for a case where the obstructionor hindrance did not follow very shortly after.
I would, therefore, dismiss the petition, casting the petitioner intheDcosts of these proceedings'in the lower Court and the costs inappeal.
I would add, though it is not necessary to do so, that this would beno bar to the petitioner asserting his claim to the land in a rightlyconstituted action*
Petition dismissed.
'2 0.B. 145.
1922.
a,
Mohomado. LMev.Ahamado Ali