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Present: Be Sampayo A.C.J.PERBRA v. SUDDY.
37—C. B. Colombo, 4,734.
Civil Procedure Code, s. 344—Decree allowing defendant to removematerials of buildings put up by Him—Subsequent inquiry as towhat buildings were put up by defendant—Inquiry as to whoplanted the plantains—Adjudication that defendant planted them,and had the right to remove them—Had Court jurisdiction to makean order as to plantains after decree ?
Of consent judgment was entered for plaintiff, and defendantwas allowed to remove the -materials of the buildings put up byhim. The decree did not specify the buildings or their number.When a dispute arose in connection with the execution of thedecree, the Court held an inquiry, and held that all the buildingswere put up by the defendant and the plantain bushes and sugarcane were planted by him, and directed him to remove them.
Held, that the Court had jurisdiction, even after decree, toadjudicate as to the buildings under section 344 of the CivilProcedure Code. As regards the plantain bushes and sugar cane,the Court had no jurisdiction, as there was no decree touching them,and as no question could be said to have arisen in connectionwith them in the execution of the actual decree.
rpHE facts are set out in the judgment.
W. Jayawardene, for the plaintiff, appellant. *
*7. S. Jayawardene, for the defendant, respondent.
( 11 )May 25,1923. Ds Sampayo A.C.J.—
I think this appeal must be allowed. The defendant was atenant of certain premises under the plaintiff. This action wasbrought for recovery of arrears of rent and for ejectment. Thedefendant, among other things, pleaded that he' had with theconsent of the plaintiff put up certain buildings on the land andclaimed the right to remove the materials of the buildings. Atthe trial on December 6, 1922, the parties cazrfe to a settlement,and it was agreed that the plaintiff should have judgment asprayed for, with costs, but that writ of possession should not issuetill January 15, 1923, and that the defendant be allowed to removethe materials of the buildings put up by him; A decree wasentered on those terms. But the buildings not have beenspecified or their number stated, a dispute arose in connectionwith the execution of the decree. The defendant then made anapplication for restitutio in integrum, and this Court pointed outthat as the matter was one relating to the execution of the decreethe defendant’s proper course was to apply to the lower Courtunder section 344 of the Civil Procedure Code. But when thedefendant went to the Court of Bequests, he enlarged his appli-cation, so as to include not merely the matter of the buildings, butalso some plantain bushes and sugar cane, which he alleged he kadplanted on the land. After some inquiry the Commissioner heldthat all the existing buildings were put up by the defendant, andthat the plantain bushes and sugar cane were also planted by him,and that the defendant was entitled to remove all these things.He accordingly made an order on the Fiscal that in executing thewrit he should allow the defendant to remove the buildings andtrees or plants. Very learned arguments took place in the Courtbelow on the law, and on the question whether plantain bushesand sugar cane are trees or plants. But all this was beside thereal question, which was as to the applicability of section 344 of theCode. For the reason above indicated, the matter of the buildingswas within the competence of the Commissioner under section 344,and the evidence justifies the order made with regard to them, butas regarde the plantain bushes and sugar cane, the matter cannot bedealt with under section 344 of the Code. There was no decreetouching them, and no question can be said to have arisen inconnection with them in the execution of the actual decree. Thedefendant may have some other remedy, but has no right to ask theCourt to make an order which practically amounts to a new decree.
So much of the order of the Commissioner as relates to plantainbushes and sugar cane is set aside. The plaintiff failed in theCourt below with regard to the buildings, but in the petition ofappeal be raised the same question again.. There will, therefore,be no order as to costs in the Court below or in this Court.