WELIWITIGODA v. U. D. B. DE SILVA AND OTHERS

008-SLLR-SLLR-1997-V-1-WELIWITIGODA-v.-U.-D.-B.-DE-SILVA-AND-OTHERS.pdf


WELIWITIGODA
v.
U.D. B. DE SILVA AND OTHERS
SUPREME COURT.
G. P. S. DE SILVA. C.J.,
KULATUNGA, J. ANDRAMANATHAN. J.
S.C. APPEAL NO. 31/94.
C.A. APPLICATION NO. 190/93 (MISC).
D C. COLOMBO NO. 4857/ZL AND NO. 3642 SPL.
FEBRUARY 2,1995.
Civil Procedure Code – Powers of Fiscal in executing a writ – Resistance toexecution – Inquiry into dispossession of bona fide claimant in execution -Section 324, 325 and 328 of the Civil Procedure Code.
Held:
(1) On a proper construction of the proviso to Section 324 of the Civil ProcedureCode, a mere claim of tenancy which is not supported by facts will not ipsofacto bar the Fiscal giving vacant possession to the Judgment-Creditor interms of the enacting part of that section. Such a claimant may become liableto removal as an Agent, servant or other person bound by the decree subject,however, to his right to make an application under section 328 of the Code.He has no ‘right” to resist execution and require the Fiscal to only givesymbolic possession or to report resistance to court, under Section 325. Aclaim under the proviso to section 324 cannot be entertained unless it isprima facie tenable.
(2) If, after the Fiscal has duly delivered possession to the 'Judgment-Creditor'after removing an occupant bound by the Decree the occupant re-enters theproperty, the judgment creditor is entitled to proceedings under Section 325on the strength of the Writ of Execution. That right should not be prejudicedby setting aside the writ in revision without a proper consideration of the facts.
APPEAL from the judgment of the Court of Appeal.
A. K. Premadasa, P.C. with C. £ de Silva for Appellant.
S. Mahenthiran lor 1st Respondent.
Miss N. Abeyratne for 2nd Respondent.
3rd Respondent absent and unrepresented.
Cur. adv. vult.
March 24,1995.
KULATUNGA, J.
The appellant who is the plaintiff in D.C. Colombo CaseNo. 4857/ZL appeals to this Court against the judgment of the Courtof Appeal {in revision) directing that the writ of execution issued in thesaid action for the delivery of possession of premises No. 53, C.W.W.Kannangara Mawatha (formerly Alexandra Place) Colombo 7 be setaside.
The above action which was filed against the 2nd respondent,seeking a declaration of title and ejectment in respect of the premisesin suit, was settled on 26.05.87. In terms of the said settlement thedefendant acknowledged the appellant's title to the premises in suitand agreed to vacate the same on condition of the deposit of a sumof Rs. 200000/- by the appellant, to be drawn by the defendant. Theissue of writ of ejectment was postponed until 31.12.92 (Exhibit P3).
On 18.12.92 the 1st respondent filed D.C. Colombo caseNo. 3642/Spl. against the appellant and the 2nd respondent. The 1strespondent claimed that he had been a tenant of some of thebuildings situated on the aforesaid premises No. 53. under the 2ndrespondent. He prayed for a declaration that he was not liable to beejected there from in terms of the decree in case No. 4857/ZL towhich he was not a party. He also sought an interim injunction torestrain the appellant from ejecting him and for an enjoining order tothe same effect (Exhibit P5). On 28.12.92 the Court issued anenjoining order (Exhibit P8). Thereafter the appellant filed papers forvacation of the enjoining order and objections to the application foran interim injunction. After inquiry, the District Judge by his orderdated 12.02.93 vacated the enjoining order and refused theapplication for an interim injunction. The Court observed that it wasnot possible in that action to adjudicate on the alleged tenancy; andthat the 1st respondent should make his claim if any, in executionproceedings (Exhibit P15).
After the aforesaid order in case No. 3642/Spl., the appellantobtained writ of execution in case No. 4857/ZL on 16.02.93(Exhibit P16). Thereafter, on 09.03.93 the Fiscal visited the premiseswith two police constables and executed the writ. As per his report(Exhibit P17), the 1st respondent claimed the right to remain inoccupation of the premises and produced the proceedings in caseNo. 3642/Spl. in support. However, the appellant produced the ordermade therein refusing the interim injunction, whereupon the Fiscalremoved the 1st respondent and delivered vacant possession of thepremises to the appellant. It is to be noted that the 1st respondentdid not produce any evidence, documentary or otherwise, in supportof his claim of tenancy.
On 10.03.93 the 1st respondent submitted an affidavit to thePresident, Court of Appeal complaining that despite his resistance,the fiscal purported to execute the writ, without reporting to Court thefact of such resistence. He claimed the right to remain in possessionof the premises as tenant and sought an order quashing thepurported execution proceedings. He also prayed that the Courtspecially deal with the 3rd respondent, Fiscal Officer. In his affidavit,the 1st respondent gives his address as 229/3, Mahawatte Road,Colombo 14 (Exhibit P21). On the same day, the Court heard Counselfor the 1st respondent and made order, ex parte, staying allproceedings in the District Court and directing the 3rd respondent toappear on 23.03.93 (Exhibit P22).
The appellant alleges that, after the delivery of possession of thepremises to him, the 1st respondent re-entered the property on
at about 8.00 p.m., along with some thugs and ousted himand his security officers. The next day the appellant made acomplaint to the Cinnamon Gardens Police (Exhibit P19). P19 showsthat the appellant was evicted with the assistance of police officerswho visited the premises and arrested the appellant's son and 5 ofhis men. They were detained at the Police Stations after which thepolice ordered the appellant not to enter the premises. Consequently,he left the premises.
On 22.03.93 the appellant intervened in the proceedings beforethe Court of Appeal and filed his objections to the 1st respondent’sapplication (Exhibit P22).
On 23.03.93, the appellant, obtained a variation of the stay orderissued by the Court of Appeal and obtained permission to instituteproceedings before the District Court under S.325 of the CivilProcedure Code (Exhibit P28). Thereafter, he made a complaint interms of S.325 that he had been ousted from possession on 10.03.93(Exhibit P30). The said proceedings were thwarted when on 11.05.93the Court of Appeal, on an ex parte application by Counsel for the 1strespondent, once again stayed "all proceedings” in the District Court(Exhibit P35). Consequently, all proceedings remained stayed until
when, after hearing the submissions of Counsel for theappellant, the Court permitted the District Judge to proceed with theS.325 application (Exhibit P36).
On 15.11.93 the Court of Appeal heard submissions of Counseland held that the 1st respondent had failed to report resistance toexecution of the writ. The Court directed that “the writ of execution beset aside" and further directed that “writ cannot lie” against the 1strespondent until other proceedings are taken on the basis of hisresistance. The Court warned and discharged the 3rd respondent.
It was the position of the 1st respondent that the fiscal could onlyhave given the appellant “symbolic possession" of the premises.Alternatively, the Fiscal should have reported resistance to Court forsteps under S.325 of the Code. The appellant's position was that asfar as he was concerned, the Fiscal had delivered vacantpossession; and if the 1st respondent complained that he was abona fide claimant on his own account, his remedy was to havemade an application for relief under S.328 of the Code.
The powers of Fiscal in executing a writ are set out in S.324 of theCode which requires him to deliver possession of the property to thejudgment creditor "if need be by removing any person bound by thedecree who refuses to vacate the property". However, if there is atenant or other person "entitled to occupy the same as against thejudgment – debtor, and not bound by the decree to relinquish suchoccupancy" the Fiscal can only give symbolic possession viz. byaffixing a copy of the writ on the property and taking other steps,required by the proviso to S.324.
As regards the requirement to give symbolic possession, it doesnot appear that the Fiscal is bound to do so on the basis of a mereclaim of tenancy, which is not in any way supported by facts. Such aclaimant may become liable to removal as an agent, servant or otherperson, bound by the decree. The 1st respondent was not residingon the premises in dispute. His claim was that he was a sub-tenantunder the judgment debtor and in that capacity used some of thebuildings on the premises to conduct a school. However, he has notplaced any material before the Fiscal to support that claim, If so, hebecame liable to be removed, in view of his empty claim subject,however, to his right to make an application under S.328 of the Code.
It seems to me that the 1st respondent acted in the belief that if hemerely claimed to be a tenant the Fiscal was ipso facto barred fromgiving the appellant vacant possession of the property; and that if theFiscals then attempted to remove him, he was entitled to resist,whereupon the Fiscal ought to have reported such resistance toCourt. If this were the law and the occupants have such a “right" toresist execution, effective execution of writs would indeed beimpeded. I am of the view that a claim under the proviso to S.324cannot be entertained unless it is prima facie tenable.
The evidence shows that after the 1st respondent was removed bythe Fiscal, he re-entered the property under the cover of the stayorder issued by the Court of Appeal and with the assistance of thepolice. The judgment of the Court of Appeal which does not appearto have taken these facts into consideration gave sanctity to the actsof the 1st respondent. What is more, the Court directed that the writ ofexecution itself which the appellant had lawfully obtained be setaside. This has prejudiced the appellant’s rights in proceedingsunder S.325.
If there was misconduct on the part of the 3rd respondent, the 1strespondent could have complained to the District Judge and madean application under S.328, if so advised. As far as the trial court wasconcerned there was no decision which called for the intervention ofthe Court of Appeal. As regards the complaint against the 3rdrespondent's conduct, the proper procedure would have been tomake no order therein. The parties should have been left to theirremedies before the trial Court.
For the foregoing reasons, I allow the appeal and set aside thejudgment of the Court of Appeal. The 1st respondent is directed topay the appellant costs in a sum of Rs. 5000/- (Rupees FiveThousand).
G. P. S. DE SILVA, C. J. -1 agreeRAMANATHAN, J. – I agree.
Appeal allowed.