102-NLR-NLR-V-69-VISALATCHI-and-others-Appellants-and-R.-R.-CHETTIAR-and-others-Respondents.pdf
Visalatchi v. Chettiar
473
1966 Present: H. N. G. Fernando, S.P.J., and Abeyesundere, J.VISALATCHI and others, Appellants, and R. R. CHETTIAR and others,
Respondents
S G. 201)1964—D. C. Matara, 1406)L
Execution of proprietary decree—Procedure in event of resistance—Civil ProcedureCode, as. 325,326, 327,327A.
Where, in consequence of obstruction to the execution of a proprietarydecree, the judgment-creditor files a petition under section 325 of the CivilProcedure Code alleging that resistance was offered at the instigation of thejudgment-debtor, it is the duty of tho Court, if it finds that the obstructionhad not been at the instigation of the judgment-debtor, to determine whetheror not the person who offered the resistance comes within the description insection 327 or 327A.
474
H. N. G. FERNANDO, S.P.J.—Visalalchi v. Chettiar
■A-PPEAL from a judgment of the District Court, Matara.
C. Ranganathan, Q.C., with S. Sharvananda, for the Judgment-Creditors(Petitioners-Appellants).
S. H. Mohamed, with K. Viknarajah, for the 2nd and 3rd Respondents.September 19,1966. H. N. G. Fernando, S.P.J.—
In this case a decree had been entered against the 1st defendant forejectment but resistance to the execution of the decree was offered bythe 3rd respondent. A petition was thereafter filed under section 325of the Code, in which the judgment creditor alleged that the resistancehas been offered at the instigation of the 1st defendant. The learnedtrial Judge thereafter held an inquiry at which he decided on the evidencethat the obstruction had not been at the instigation of the 1st defendant.He seems to have taken the view that because the judgment creditorhad alleged instigation, it was not open to the judgment creditor toask for an order under section 327 or section 327A. This view of thematter is erroneous and would not have been formed by the trial Judgeif he had troubled to read the judgment in 58 N. L. R. which was citedto him. Section 325 only provides for a petition informing the Courtof the resistance. When the matter is inquired into the Court mustmake one of the orders set out in section 326, 327 or 327A and the Courthas therefore a duty to determine whether or not the person offering theresistance comes within the description in sections 327 and 327A. Inthe present case neither counsel nor ourselves are able to point to anydecision of the trial Judge as to the character of the obstructor’soccupation. There is, however, some evidence that the third respondentis the manager of the 2nd respondent and that the 2nd respondent ishimself a tenant of the premises. There appears to be some disputeas to whether the 2nd respondent is a tenant under the 1st defendantor else whether he is a tenant under the plaintiff. At the stage when thedecree was entered for ejectment the 2nd respondent had been a partyto the action as 2nd defendant named therein but when decree was entered,counsel for the plaintiff (Judgment-Creditor) stated that he was with-drawing the action against the 2nd defendant with liberty to institutea fresh action. I do not think that statement should prevent proceedingsfrom now being taken under Section 327 because those proceedings area perfect substitute for a fresh action.
The order appealed from is set aside and the case is remitted to theDistrict Court for directions to be given in terms of Section 327. Theappellant is entitled to the costs of this appeal.
Abeyesundere, J.—I agree.
Order set aside.