038-NLR-NLR-V-64-NAGAMUTTU-Appellant-and-KUMARASEGARAM-and-another-Respondents.pdf
214
WEERASOORIYA, J.—Nagamultu v. Kutnarasegaram
Present: Weerasooriya, J.
NAGAMUTTU, Appellant, and KUMARASEGARAM and another,
Respondents
S. C. 61—0. R. Jaffna, 1610 j A
Resistance to execution of proprietary decree—“ Hindrance in taking complete andeffectual possession ”—Re-issue of writ—Permissibility—Civil ProcedureCode, ss. 287 (2), 323, 325, 326.
Whero, two days after oxocution of a propriotary decree in respect of a land,the judgment-debtor ro-ontored the land (which was an opon one)—
Held, that tho subsequent re-entry by tho judgment-dob tor did not amountto a hindrance offorod to tho judgment-croditor in taking complete and effectualpossession within tho moaning of section 325 of tho Civil Procedure Code.
Quaere, whether, in such a case, a fresh writ of possession may be issued forthe removal of tho judgment-debtor.
Appeal from an order of the Court of Requests, Jaffna.
J.D. Aseervalhan, for the defendant-respondent-appellant.No appearance for plaintiffs-respondents.
Cur. adv. vult.
October 7, 1960. Weerasooriya, J.—
This is an appeal from an order made by the Commissioner of Requests,Jaffna, committing the appellant (the judgment-debtor) to jail for a termof 30 days under section 326 of the Civil Procedure Code and also directingthat the two plaintiffs-respondents (the judgment-creditors) be put inpossession of a land called Kokkanpulam. The order was made on anapplication by the plaintiffs-respondents under section 325 of the Code,and is based on tho Commissioner’s finding that the appellant hinderedtho plaintiffs-respondents in taking complete and effectual possessionof the land after the Fiscal's officer had delivered possession of thesame to them in execution of a writ for the appellant’s ejectment whichhad issued under the decree entered in the action in which the presentproceedings arose. Tho action was one for the cancellation of a leaseof tho land which the plaintiffs, as lessors, had entered into with theappellant, and for cjectmont.
Tho writ was executed on the 8th August, 1959, by the Fiscal’s officerplacing the 1st plaintiff in possession of the land at a time when theappellant was not present. But the appellant re-entered the land (whichwas an open one) on the 11th August, 1959, and has been in occupationof it since then.
WEERASOORIYA, J.—NagamuUu v. Kumarasegaram
215
In submitting that the order appealed from was wrongly made, learnedcounsel for the appellant relied on the case of Pereira v. Aboothahirl. Inthat case the purchaser of certain premises at an execution sale—undersection 287 (2) of the Civil Procedure Code such a purchaser is placedin the siame position as a judgment-creditor—obtained a writ for recovery, of possession of the premises. The Fiscal in execution of the writejected from the premises a person who was in occupation and gave thepurchaser complete and effectual possession of the same. The door ofthe premises was locked and the key handed by the Fiscal to the purchaserwho elected to take the key and go away. Two hours later the personejected succeeded in re-entering and getting into occupation of thepremises. Garvin, J., in a judgment with which Maartensz, A.J.,agreed, held that in these circumstances sections 325 and 326 had noapplication as the interruption of possession took place after the Fiscalhad already given complete and effectual possession.
The 1st plaintiff in his evidence at the inquiry under section 326 statedthat he remained in effectual possession of the land for two days afterhe was given possession by the Fiscal’s officer (on the 8th August, 1959).In view of this admission it is clear that the subsequent re-entry by theappellant on the 11th August, 1959, did not amount to a hindrance of thekind contemplated in section 325, as the section specifically refers tohindrance offered to the judgment-creditor in taking complete andeffectual possession.
Although the case of Pereira v. Aboothahir (supra) was cited to theCommissioner, in making the order appealed from he seems to have actedon the strength of an observation of Schneider, J., in Mohomado Lebbe v.Ahamado Ali et al.z that the “ hindrance or obstruction should be atthe time of giving of possession or shortly thereafter ”. In another partof his judgment in that case Schneider, J., stated that it is impossibleto take the view that section 325 was intended for a case where thehindrance or obstruction did not follow “ very shortly afterBut even
if the procedure laid down in sections 325 and 326 cannot be invoked by ajudgment-creditor unless the hindrance or obstruction is either at thetime of giving of possession or shortly (or very shortly) thereafter, I donot think that those conditions can be said to be satisfied where thehindrance or obstruction was two days afterwards, as in the present case.In so far as the observations of Schneider, J., are in conflict with thedecision in Pereira v. Aboothahir (supra) the latter case, being a judgmentof a bench of two Judges, was binding on the Commissioner, even as it isbinding on me.
If the plaintiffs-respondents are not entitled to an order under section326, a ^question that poses itself is what legal remedy for the recovery ofpossession of the land is available to them short of filing a regular actionagainst the appellant who, even on the 11th August, 1959, was bound bythe decree entered in the case and is still bound by it. In considering a
'{1935) 37 N. L. It. 163,
*{1922) 23 N- If- R. 406,
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WJEERASOORIYA, J.—Nagamullu v. Kumarasegaram
similar question in Menika v. Hamy1, Lawrie, J., expressed the opinionthat a Court “ ought to have the power to compel complete and lastingobedience to its decree, and that on due proof of dispossession, a, freshwrit of possession ought to issue While I am of the same opinion, andsee no reason why a writ under section 323 of the Civil Procedure Codeshould not be re-issued for the removal of the appellant, the weight ofauthority seems to be against such a course being adopted—see Queen v.Abraham 2 and also Pereira v. Aboolhahir {supra). Moreover, no" applica-tion for the re-issue of writ under section 323 has been made by theplain ti ffs-respondents.
The order appealed from is set aside and the application made by theplaintiflfs-respondcnts under section 325 is dismissed with costs in bothCourts.
Order set aside.
1 (1892) 2 C. L. Reports 145.
a (1843-55) Ramanathan’s Reports 79.