014-NLR-NLR-V-61-THURAISINGHAM-and-another-Appellant-s-and-KANAGARATNAM-and-others-Respondent.pdf
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BASNA.TAK.H, C.J.—Thuraisingham v. Eanagaramam
1957Preseni: Basnayake, C.J., and Pulle, J.
TM liRAISINGHAM and another, Appellants, and 3LACTAGARATNAM
and others, Respondents
3. C. 794—D. C. Jaffna, 10,875
Execution of proprietary decree—Procedure in event of resistance to execution—■Civil-
Procedure Code, ss. SZS, 377 {&).
A Judge making an order under section 325 of the Civil Procedure Code-must indicate in hie order that he has considered the evidence exhibited or ad-duced and that he is satisfied that the material facts of the petition are prima-faoie established and that he is of opinion that on the footing of those factsthe petitioner is entitled to the remedy, or to the order in big favour.
At the hearing of the petition after the interlocutory order the judgment-creditor is not relieved of the burden of satisfying the Court that the obstruction,or resistance complained of "was occasioned by the judgment-debtor or bysome person at his instigation. Section 377 (5) of the Civil Procedure Code doesnot oast that burden on the judgment-debtor nor has it the effect of imposingon him the burden of leading evidence to the contrary before the judgment-creditor has proved his case.
A
/APPEAL from an order of the District Court, Jaffna.
R.Maniklcavasagar, for 5th and 6th Defendants-Appellants.
S.Sharvananda, for Plaintiffs-Respondents.
February 15,1957. Basnayake, C.J.—
This is an appeal by the 5th and 6th respondents to an action undersection 325 of the Civil Procedure Code. The allegation is that when thewrit officer went to execute the writ the 5th and 6th respondents, who arethe son and wife respectively of the judgment-debtor, pushed the writofficer out of the premises and prevented him from delivering possessionthereof. At the hearing of the petition under section 325 of the CivilProcedure Code, the learned trial Judge ruled “ that the onus is on the5th and 6th respondents It is not clear what he had in mind when,the learned Judge made this order. Section 325 of the Civil ProcedureCode provides that a petition under that section should be dealt with bythe Court in accordance with the alternative (6) of section 377. Thatsection read with section 325 provides that in the matter of a petitionunder section 325 if the Court is satisfied on the evidence exhibited oradduced that the material facts of the petition are prima facie established,and is of opinion that on the footing of those facts the petitioner is entitledto the remedy, or to the order in his favour, for which the petition praysthen the Court shall accordingly make an interlocutory order appointing
BASNAYAKE. C. J.—Thuraisingham v. Kanagaratnam
SI
a day for the determination of the matter of the petition, and intimatingthat the respondent will be heard in opposition to the petition if he appearsbefore the Court for that purpose on the day so appointed.
The order of the Judge does not show that he considered the evidenceexhibited in the affidavit and was satisfied that the material facts wereprima facie established and was of opinion that on the footing of thosefacts the petitioners were entitled to the remedy they sought, for his-order reads :
“ Order ”
" (1) Vide order of 28.2.55 and J. E, of 20.5.55
(2) Enter Interlocutory Order under Sec. 377 (6) and issue re-turnable 1.7.55. ”
A Judge making an order under section 325 must indicate in his orderthat he has considered the evidence exhibited or adduced and that he issatisfied that the material facts of the petition are prima facie establishedand that he is of opinion that on the footing of those facts the petitioneris entitled to the remedy, or to the order in his favour.
At the hearing of the petition after the interlocutory orderthe judgment-creditor is not relieved of the burden of satisfying the Court that the obs-truction or resistance complained of wa3 occasioned by the judgment-debtor or by some person at his instigation. Section 377 (6) does notcast that burden on the judgment-debtor nor has it the effect of imposing■on him the burden of leading evidence to the contrary before the judgment-creditor has proved his case.
The only evidence called by the judgment-creditor alleging the obs-truction is the evidence of the Udaiyar who stated in cross-examinationthat the 5th and 6th respondents obstructed him, but there is no evidenceto show that they did so at the instigation of the judgment-debtor. Therelationship of the 5th and 6th defendants-appellants to the judgment-debtor may give rise to a suspicion that they resisted at his instigation ;but in a proceeding under section 325 it is not sufficient to create a sus-picion. It must be established by evidence that the resistance wasoccasioned by them at the instigation of the judgment-debtor. There isno such evidence in the instant case.
We therefore set aside the order committing the 5th and 6th defendants-appellants to jail and allow the appeal; but without costs.
PtnXE. J.—I agree.