1926 Present: Jayewardene A.J.

MUTTAIYA v. ASIATH UMMA et al.

521,521A-P. C. Kalutara, 11,463.

    Criminal trespass-Ejection by civil process-Bona fide claim-Reentry-Penal Code, 8. 433.

Where the accused in the exercise of a bona fide claim re-entered premises from which she had been ejected in pursuance of an order made in execution proceedings which was not binding on her,-

Held, that such re-entry did not amount to criminal trespass.

APPEAL from a conviction by the Police Magistrate of Kalutara. The first accused, a Moorish woman, and her brother, the second accused, were convicted of criminal trespass under section 433 of the Penal Code. First accused's husband owned a land called Jambugahawatta, on which was situated a house, which first accused says was built by her father in pursuance of an agreement in the Kadutham granted at her marriage. The husband mortgaged the land and building on primary mortgage to the firm of P. K. P. S., and on secondary mortgage to S. N. S. Sellappa Chetty. Sellappa Chetty put bond in suit and obtained hypothecary decree. At sale Sellappa purchased it. The mortgagor was in possession, and Sellappa obtained an order of Court directing the Fiscal to place him in possession. The first accused refused to give up possession, but subsequently left the place when the Fiscal came again with some Police Officers. Later the first and second accused forcibly re-entered the place, and were charged and convicted of criminal trespass.

H. V. Perera, for appellants.-Entry or re-entry upon land from which one was ejected by civil process is not a criminal offence. Annoyance is necessary (see Sheriff v. Pitche Umma1[1 (1924) 26 N. L .R. 353.]).

The fact that section 328 Civil Procedure Code provides appellant a remedy does not preclude her from making an attempt to gain possession.

Order of Court and the steps taken by the Fiscal are irregular. They would only bind the judgment-debtor, and not the appellant.

The intention to exercise a bona fide claim is not necessary to excuse an entry so long as one does not do any act mentioned in the section.

Drieberg, K.C. (with him Spencer Rajaratnam), for respondent.- Sheriff v. Pitche Umma (supra) is not applicable because the appellants voluntarily surrendered possession to the purchaser.

 In the case of Govind Praaad cited in Sheriff v. Pitche Umma (supra) the accused remained in possession despite the partial possession given to the complainant by the officer of Court.

October 30, 1925. JAYEWARDENE A. J.-

The appellants, a Moorish woman and her brother, appeal against their convictions for criminal trespass under section 433 of the Penal Code. Several points of importance arise in the case, and it becomes necessary to state the facts which led up to the commission of the offence to properly appreciate them.

The first accused's husband was the owner of a land called Jambugahawatta alias Jamboditotam, situated at Alutgama in the Kalutara District. There is a house on the land which is claimed by the first accused, and she says it was built by her father for her residence about fourteen or fifteen years ago in pursuance of an agreement in the Kadutham " E " granted at the time of the marriage. Her husband mortgaged the land with the buildings thereon on a primary mortgage to the firm of P. K. P. S. on March 13, 1919, and as a secondary mortgage to the firm of S. N. S. Sellappa Chetty on September 1, 1922. Sellappa Chetty put his bond in suit in case No. 13,471, D. C, Colombo, and obtained a hypothecary decree. In execution of the decree, and under directions contained in it, the premises were sold by a licensed auctioneer, Mr. Krishnanpillai, when Sellappa Chetty became the purchaser. He obtained conveyance " C " in his favour, No. 1,698 of May 1, 1925, executed by the Secretary on the orders of the Court. The validity of the sale and all proceedings had under the decree are qu