129-NLR-NLR-V-58-N.-D.-L.-GUNARATNE-Appellant-and-A.-J.-M.-DE-SILVA-Respondent.pdf
Present : H. N. G. Fernando, J.
X. D. L. GUNARATNE, Appellant, and A. J- AL DE SILVA,
Respondent
S. C. 201—0. P. Colombo.. 60,393.
Execution—Decree for possession of immovable property—Procedure in event of resis-• tones or obstruction to execution of writ—Right of appeal—Civil ProcedureCode, ss..324—327.
Xn every ciiso of resist itnco or obstruction to oxocutiou of u tlccroo tor tiiopossession of Immovable property, application for relief is first mndo undersection 325 of tho Civil Procedure Codo, and tbo tlirco succeeding sections(including the now section 327.4 added in 1040) provido for alternative orderswhich may bo mode upon such an application.
Whoro the complaint is ono of hiiulrnnco subsoquent to delivery ofconstructive possession, tho application under section 325 should bo mado withinono month of the dato of tho hindrance.
Whoro tho Court purports to net summarily under section 327A (after tlioinquiry under section 377 (6)) upon tho ground of frivolousness or voxutiousnos3sot out in section 327.4, tho order is not appealable.
Appeal from an order of the Court of Requests, Colombo.
JT. M. Kiimarakulasingham, for the 10th respondent-appellant,
W. Jayeicanlcne, Q.C., with Neville Samara loon and A. K.Prcmatlasa. for tho nlaintiff-resnonclent.
Cur. adv. vull.
April 2, 1957. H. N. G. Fbks.axdo, J.—
The plaintiff in this action had successfully sued liis lessee oneGunawardone for cancellation of the lease-bond and for ejectment.Writ of possession was issued on 21st September 1955 but was returnedby the Fiscal with a report that the tenant was not in occupation, andthat the persons in occupation wore one Is. D. L. Gunaratne and others.The Court thereupon ordered constructive possession to be deliveredunder section 324 of the Code and possession was delivered accordingly.On 2Gth November 1955 the plaintiff went to the premises with hisProctor for the puiposc of taking effectual possession hut was obstructedby certain persons, of whom some claimed to be holding under the plain-tiff’s tenant ; Gunaratne claimed that he was himself the tenant of thepremises under the plaintiff, a position which the plaintiff denies. There-after on 7t li December 1955 (within one month of tho alleged obstruction)tho plaintiff applied for an order ejecting all tho persons in occupation,and the Court made an interlocutory order—presumably in pursuance ofsection 377 (b) read with section 325 of the Code—appointing 30thJanuary 1956 for inquiry into the plaintiff’s application. After hearingevidence on that day, the Court made the following order :—
" Acting under section 327 (a) of the Code I direct, the issue of writto eject the 2nd, 5th, 6th, 7th, 9th, 10th, and 14th respondents fromthe premises and order the said respondents to pay Rs. 31/50 as costsof t his inquiry.”
Tlie present appeal is by N. D. L. Gunaratne against that order.
One argument urged on behalf of the appellant is that, since tho allegedresistance was not by a person claiming under the original ejected tenant,an application under section 325 does not lie, and that application forrelief, if any, should have been made under section 327. But section 325
is not in any way restricted to the case of persons claiming under a tenant ;resistance, obstruction or hindrance by any person can be the basis ofan application under section 325. Moreover, it. is in my opinion a mis-conception to say that an application for relief may be made under section327 ; in all cases the application is made wider section 325 and the threesucceeding sections (including the new section 327A added in 1949)provide for alternative orders which may be made upon such anapplication.
Secondly it is urged that the application should have been made withinone month of the date of delivery of constructive possession ; but inthis case clearly the complaint is of hindrance after the date of constructivedelivery and fell to be made within one month of the hindrance. Thecomplaint is not of obstruction or resistance to the Fiscal’s officer, butof hindrance to the plaintiff in obtaining effectual possession.
A more important argument for the appellant is that the Judge couldnot have acted under section 327A in a summary manner. It is contendedthat where the person who refuses to vacate the property is one whoclaims “ on his own account or on account of a person other than thejudgment debtor ”, the procedure set out in section 327 of registeringthe complaint as a plaint and of investigating the claim as if it were anaction by t he decree-holder against the claimant must be followed beforean order under section 327A may bo made. But if this contention becorrect, nothing has been achieved by section 327A, because it wouldalways have been possible to deal with a frivolous or vexatious claimantunder section 327 after the trial there contemplated. Read together,sections 325, 326, 327 and 327A have clearly to be construed as follow s :—
(1) An interlocutory order under section 377 (b) is made if the right ofthe petitioner is primafacie established ; (2) An inquiry is held (section377 (6) ) if. the claimant appears to oppose the petitioner’s complaint-;
On the hearing of the matter of the petitioner’s complaint-—-
if the obstruction or resistance was occasioned by the judgment-
debtor or by some person at his instigation, the Court has powerto commit the person to gaol and to older delivery ofpossession— (section 326) ;
if the resistance or obstruction was occasioned by any person
(other than the judgment debtor) on his own account, oron account of a person (other than the judgment debtor),claiming in good faith . . . ,, the procedure for registrationof the complaint as a plaint is applicable—(section 327) :.
if the resistance or obstruction was occasioned by a person (other
than tho judgment debtor) and the Court .finds the claim ofthat person to be frivolous or vexatious, the Court may direct thejudgment-creditor to be put in possession— (section 327A).
The distinction drawn in section 327 and in section 327A is that betweenwhat appears to the Court to bo a bond fide claim by a “ third party ”on the one hand, and a frivolous or vexatious claim on the other.. In
the former case, the claim must he investigated as intin action and thesuccess or failure of the petition under section 325 Mill depend on thatinvestigation ; in the latter case, an order for possession will bo madeforthwith and it is for the claimant thereafter to establish (if lie can)his claim in an action brought within one month of the order. In thepresent ease the .Judge has purported to act under section 327A (afterthe inquiry under section 377 (b) ) and upon the ground of frivolousnessor vexatiousness set out in section 327A. The order cannot bo challengedbecause the correct preliminary procedure was followed.
I would hold also that the provision in section 327A that the order isfinal means that it is not appealable. A perfectly reasonable alternativeremedy is provided to the claimant in that lie can bring within one monthan action to establish his right to possession and if successful in thataction be restored to possession. Just as what appears to be. a bona fideclaim “keeps out” the judgment creditor until the claim is regularlyinvestigated (section 327), so also what appears to be a frivolousor vexatious claim is insufficient to entitle the claimant to continuein possession and he is compelled to seek a remedy by regular action.In each case the powers of this Court in appeal cannot be invoked untilthe regular action is tried.
There being no right of appeal against the Commissioner’s order, theappeal is rejected with costs.
Appeal rejected.