1944 Present: Soertsz and de Kretser JJ.

SIRIPINA, Appellant, and EKANAIKA, Respondent.

6-D. C. Kandy, 1,060:

Writ of possession-Decree for possession by lessor against lessee-Application for unit of possession against sub-lessee-Civil Procedure Code, s. 835.

Where a lessor has obtained a decree for possession against a lessee he is not entitled to invoke the provisions of sections 825 and 826 of the Civil Procedure Code against a sub-lessee holding with the consent of the lessor or his representative.

APPEAL from a judgment of the District Judge of Kandy.

E. B. Wikremanayake (with him H. W. Jayawardene), for defendant, appellant.

N. E. Weerasooria, K.C. (with him S. R. Wijayatilake), for plaintiff, respondent.

Cur. adv. vult.

August 9, 1944. DE KRETSER J.-

The plaintiff, claiming to be the duly appointed trustee of the Hudumpola Vihare, sued Siripina alias Ceciliahamy alleging that she was the executrix de son tort of the estate of one Kira to whom a previous trustee had leased certain premises upon Indenture No. 830 dated June 4, 1935, for a period of 10 years commencing from January 1, 1935. Neither the lease nor a copy of it was annexed, to the plaint. The defendant appeared and consented to the lease being cancelled, damages and costs were waived and writ of ejectment was to issue on October 31, 1942, 16 days after the consent to judgment. On February 24, 1943, the Proctors for the plaintiff moved for a writ of ejectment and a writ of possession. The Fiscal reported that he could not deliver possession as the doors of the goat shed standing on the land were closed and as one Veda Manikka Nadar claimed the shed as having been put up by him. Section 325 of the Civil Procedure Code indicates the procedure to be followed on such a return being made by the Fiscal. The plaintiff, however, did not present a petition in the manner described in that section, but he swore an affidavit making certain allegations, and his Proctors filed a motion with the affidavit praying that the Fiscal be directed to break open the doors of the goat shed and deliver possession. The Court did not make an order under section 377 (b) as required by section 325,

but ordered notice on Veda Manikka Nadar. He appeared and filed a statement of objections, alleging that the plaintiff's predecessor in title had consented and acquiesced in the erection of certain buildings on the land by the party noticed and another, and that he was not a party to the action in which the decree was entered. He also took exception to the form of the application. When the matter came up for inquiry, the Judge does not seem to have had his attention directed either to section 325 or section 326 of the Civil Procedure Code. He heard some evidence and made an order stating that he was not going to inquire either into the question of the ownership of the goat shed or whether the party noticed had the right of jus retentionis, because the party noticed had only an informal lease from Kira and being a sub-lessee, was bound by the decree cancelling the lease. I have stated enough to show the plaintiff's application must fail both because he has failed to comply with section 325 regarding the form of his application and section 326 regarding the matters which he had to prove at the inquiry.

Under section 326, before the Court can direct that the judgment-creditor be put in possession, it must be satisfied that the resistance complained of was occasioned by the judgment-debtor or by some person at his instigation. Far from these facts being proved, the evidence shows that Kira and the incumbent of the temple gave a lease in 1926 on, document XI for a period of 5 years to the party noticed empowering him to erect a house thereon (if he thinks necessary) and. requiring him to pay all taxes and rates. It also provided for a renewal of .the lease. This document was not notarially executed, but it was no