054-NLR-NLR-V-61-T.-D.-HARAMANIS-Appellant-and-U.-B.-FERNANDO-et-al-Respondent.pdf
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STN2STETAMBY, J.—Haramanis v. Fernando
1959
Present : Sinn eta mby, J.T. D. HAJRAMAJSTIS, Appellant, and U. B. FERNANDO et. ad.,
Respondents
3. C. 185—C. B. Colombo, 58,669
Landlord and tenant—SmaU Tenements Ordinance—Writ of possession obtainedthereunder—Death of decree holder before execution—-Fight of legal representa-tive to apply for execution—Civil Procedure Code, s. 339.
Where & person who has obtained a writ of possession against his tenant inrespect of a small tenement under the Small Tenements Ordinance dies beforeexecution of the writ, it is open to the legal representative to apply for executionof the decree in terms of the provisions of section 339 of the Civil ProcedureCode. However, an application for substitution only is not tantamount to anapplication for execution.
^^PPEAXi from a judgment of the Court of Requests, Colombo.
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M. L. de Silva, with M. T. M. Sivardeen, for the Tenant-Appellant.
B. P. Goonetillelce, for the Petitioners-Respondents.
Cur adv. vult.
June 8, 1959. Sistsetamby, J-—
One B. Rosa Fernando having obtained a writ of possession againsther tenant in respect of a small tenement under the Small TenementsOrdinance died before she could execute the writ. The petitioners-respondenis thereupon applied to the Commissi oner of Requests forsubstitution in place of the deceased landlady in order that theY may
SZN2TETAMBY, J.—Saramanis v. Fernando215
execute the decree. The tenant opposed the application on the groundthat the right to obtain possession was a personal right and did not passon the death of the landlady to her heirs. The learned Commissionerof Requests, after hearing argument permitted the substitution. At theinquiry into this application the objection was raised that, in as muchas at the date of inquiry the ground on which the order nisi was madeabsolute and the authorisation of the Rent Restriction Board dispensedwith was that the premises were reasonably required for the use of thedeceased, it cannot be said that after her death the premises could anylonger be reasonably required for that purpose. The learned Commis-sioner of Requests confined his order to that aspect of the question andin my view was correct in holding that he was only concerned with thelights of the parties as to the date of action : he followed the decisionin S. P. K. Kader Mohideen & Co., Ltd. v. Nagoor Gany1. At the hearingof the appeal the learned Counsel who appeared for the tenant-appellanttook the objection that the pro-visions of the Civil Procedure Code in regardto substitution do not apply to proceedings under the Small TenementsOrdinance and that once a person, who has obtained a writ of possessionunder the Small Tenements Ordinance dies, no one can execute it. He reliedupon certain observations made in Perera Hamine v. Saibo 2. Lawrie, J.in that case held that the provisions of Section 325 et seq. of the CivilProcedure Code do not apply to actions under the Small TenementsOrdinance. In doingso, he said that there are express provisions in theOrdinance in regard to the procedure which have to be adopted. Theseobservations were regarded as obiter by Akbar, J. in Sunderam Pillai v.Ambalam*.
The question that arises in this case is whether in the absence of anyexpress provisions in the Small Tenements Ordinance it is permissibleto invoke the provisions of the Civil Procedure Code in order to giveeffect to an adjudication resulting in a writ of possession being grantedto a person. The effect of the decision in Perera Hamine v. Saibo (supra)seems to be that where there is express provision in the Small TenementsOrdinance it is not permissible to resort to the provision in the CivilProcedure Code. It does not proceed any further. I find it diffi cult to accedeto the proposition that a Court which has entered a decree is powerlessto give effect to it merely because there is no express provision in regardto the manner of its execution on the death of the writ holder. If noprocedure is laid down it seems to me that a Court has an inherentjurisdiction to devise a procedure which would enable it to enforce itsdecision. It was conceded at the hearing in appeal that the right of thelandlady survives to her legal representatives. – It seems to me, therefore,that in the absence of any express provision to the contrary in the SmallTenements Ordinance it is open to the legal representatives to apply forexecution of the decree. I use the word " decree ” advisedly ; an orderfor possession comes within the definition of the word “ decree ” asdefined in Section 5 of the Civil Procedure Code. In the circumstances
1 (1958) 60 N. L. ff. 16.3 {1900) 2 Br. 77.
3 {1929) 30 N. L. B. 358.
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SINNETAMBY, J.—Maramanis v. Fernando
I can see no objection to the legal representatives of a deceased ■writ-holder seeking to execute the decree in terms of the provisions of Section339 of the Code. It is to be noted that the Small Tenements Ordinanceexpressly provides for a person with a derivative .title from the landlordapplying for a writ of possession. If such a person can apply for a writof possession, it seems to be Ulogiea! to refuse the right to execute thewrit to a similar person once it has been obtained. In the present case,however, the application was only for substitution and there was noapplication for execution made either simultaneously or shortly there-after. Our Courts have taken the view that an application for substi-tution without at the same time there being an application for executionof a decree cannot be made under the provisions of Section 339 but in thecase of Sirimalaveda v. Siripala1 the Court went so far as to hold thatwhen there was an application for substitution followed by a separateapplication for execution the provisions of Section 339 were substantiallycomplied with. In the present case, there is no application for execution.
It seems to me, therefore, that the petitioners-respondents cannotsucceed for this reason.
I would set aside the order of the learned Commissioner of Requests andallow the appeal with costs.
1 {1954) 55 N. L. B. 544.
Appeal allowed.