051-NLR-NLR-V-57-NABISA-UMMA-Appellant-and-FUARD-Respondent.pdf
1955Present : Weerasooriya, J.
NABISA UMMA, Appellant, and FUARD,Respondent
S. C. 160 vsith Application IIS—C. E. Colombo, 37,612
landlord and tenant—Decree Jor ejectment —Subsequent acquisition of title by tenant—Jli'jht of tenant to resist execution of decree.■
Where a landlord obtains a decree to eject liis tenant, it woidd not bo opento the tenant to resist the execution of the decree on the ground that ho sub-sequently acquired titio to a portion of the leased premises from a person otherthan tlio landlord.
-/^cPPEAJj, vritk application in revision, from a judgment of the Courtof Requests, Colombo.
A. C. Nadarajah, for the defendant appellant.
Jr. E. Dia-s, for the plaintiff respondent.
November 23, 1955. Weeisasooriya, J.—
la thi3 ease a decree was entered of consent on the 6fell of October,1952, in terms of which the defendant became liable to bo ejected fromthe leased premises on any date after the 31st of December, 1954. Before,however, writ was taken out by the plaintiff, the defendant on the 2GthOctober, 1954, moved the Court “ not to entertain any application forejectment without notice to the defendant This application wasmade on the ground that on the 6th of March, 1954, the defendant becamethe owner of an undivided 3/1G share of the leased premises, havingpurchased that share from the plaintiff’s brother (who is not a partyto the action). After inquiry into this application the Court madeorder dismissing it, and the present appeal has been taken from thatorder. The defendant has also filed papers applying for revision ofthat order.
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Mr. Nad a rajah who appears for the defendant does not contend thatthe decree against her is bad but he says that by reason of what hashappened subsequently she is entitled to resist the execution of it in sofar as it is sought to eject the defendant from the leased premises. Ihave not been referred to any provision of law under which the executionof a decree validly entered may be resisted in the manner claimed byMr. Nadaraiah. He has cited the case of Fernando v. Kurera et al. '.That case does not appear to bo any authority for his proposition sinceall that it was decided there was that an agreement inter jiarfes which,though antecedent to and not embodied in the decree, relates to theexecution thereof, may be the basis for an order under s. 344 of the CivilProcedure Code that the decree should not be further executed againstthe judgment debtor.
The question as regards the legal position when subsequent to thetenancy agreement t-lie tenant becomes the owner of the leased premiseswas considered recently by Sansoni J. in the case of Visvalingam v.Gajaiceera2. According to that judgment where the landlord files anaction against the tenant for ejectment it would not he open to the tenantto plead as a defence that he had subsequent to the tenancy acquiredtitle toasharcof the leased premises from a person other than the landlord.
In the -present case the defendant seems to be in a weaker position thanthe defendant in that case, since decree has alrcad3r been entered forher ejectment and the only question is whether that decree should beexecuted.
As no appeal seems to lie from the order of the Commissioner it isrejected. Tho application in revision is refused with costs.
Appeal rejected.Application refused.
– (19-34) 50 N. L. R. 111.