1947 Present: Nagalingam A. J.

JOHN SINGHO,

Appellant, and BEET AN SINGHO et al.,

Respondents.


196--C. R. Colombo, 88,972.

Execution-Resistance to execution of proprietaT1l decree-Person obstructing ostensible Owner of share of premises in question-Evidence showing that' resistance was in fact at the instigation of judgment-debtor-Civil Procedure Code, ss. 325, 326.

In the execution of a decree for the possession of certain premises. the officer charged with the execution of the writ was obstructed by the third respondent in whose favour there was a deed of purchase executed. by a person alleged to have title to- a share of the premises. The evidence, however, showed that the deed produced by the third respondent was. one obtained in his favour by the judgment-debtor with a view to prevent the judgment-creditor from obtaining possession of the premises.

Held, that the third respondent was liable to be punished under the provisions of sections 325 and 326 of the Civil Procedure Code.

APPEAL from a judgment of the Commisisoner of Requests Colombo.

N. Nadarajah, K.C. (with him H. W. Jayewardene), for the plaintiff, appellant.

S. W. Jayasuriya (with him C. Chellappah), for the first defendant, respondent.

H. W. Thambiah (with him T. Paramasothy), for the second defendant,. respondent.

L. A. Rajapakse, K.C. (with him T. Paramasothy), for the third defendant, respondent.

Cur. adv. vult.

January 15, 1947. NAGALINGAM A.J.

This case furnishes a typical example of the case with which a tenant can hold his landlord at bay for a period of years notwithstanding that the Court has entered a decree in favour of the landlord for ejectment of the tenant. The plaintiff-appellant instituted this action for rent and ejectment against the first respondent, his tenant, as early as February 1, 1943. After trial, on March 17, 1943, judgment was entered against the tenant directing his ejectment from the premises. The tenant preferred an appeal and execution proceedings were stayed in consequence. On March 1, 1944, the appeal was dismissed. The landlord took out writ of ejectment and on March 3, 1944, the Fiscal's officer who went to deliver possession' was obstructed by the second respondent who claimed to be a sub-tenant under the first respondent. The landlord made an application under section 325 of the Civil Procedure Code and that application was. compromised between the parties whereby it was agreed that the two respondents should deliver over possession of the premises to the landlord on August 31, 1944, and that they should not in the mean time sublet the premises to a third party. Possession not having been delivered. in terms of the adjustment, the landlord made application on

 September 2, 1944, for writ of ejectment and after inquiry writ was allowed but was returned by the Fiscal unexecuted on September 26, 1944, on the ground that the third respondent had resisted the writ officer in his attempts to deliver over possession. The landlord was again driven to make an application under section 325 of the Civil Procedure Code, which is the present application. The application was filed as early as September 30, 1944. After inquiry the learned Commissioner dismissed the application on March 23, 1945, holding that the 3rd respondent in resisting the Fiscal acted not at the instigation of either of the other two respondents, but independently on his own in the exercise of a right claimed by him bona fide under a deed of purchase executed in his favour by a person alleged to have title to a share of the premises.

The learned Commissioner has found affirmatively that the resistance offered by the second respondent on March 3, 1944, was at the instigation of the first respondent and that the alleged subletting of the premises by the first respondent to the second respondent was, to use the learned Commissioner's language, "a blind to enable the