1948     Present: Basnayake J.

ALLES, Appellant, and MUTHUSAMY, Respondent

S. C. 112-C. R. Colombo, 6,647 

Landlord and tenant-Action for ejectment-Settlement-Acceptance thereafter by landlord of rent in excess of what was due-Failure by defendant to keep terms of settlement-Right of landlord to execute decree-New tenancy-Rent Restriction Ordinance, section 9.

The mere acceptance of a payment in excess of what is due to the landlord during the current period of tenancy does not create a new tenancy at the expiration of that period. A tenant who has paid more than the authorized rent has his statutory remedy in section 9 of the Rent Restriction Ordinance.

APPEAL from a judgment of the Commissioner of Requests, Colombo.

S. Subramaniam, for the plaintiff, appellant.

H. W. Thambiah, for the defendant, respondent.

Cur. adv. vult.

December 20, 1948. BASNAYAKE J.-

The plaintiff-appellant (hereinafter referred to as the plaintiff) and the defendant-respondent (hereinafter referred to as the defendant) are landlord and tenant. The plaintiff instituted this action in order to recover arrears of rent and to have the defendant ejected from the premises of which he was tenant. The defendant did not file answer and the learned Commissioner entered judgment by default against him. The defendant appeared later and moved under section 823 (3) of the Civil Procedure Code to have the judgment set aside. On July 8, 1947, the date fixed for inquiry into the defendant's motion, both parties were

represented by counsel who informed the court that the parties had arrived at a settlement. The learned Commissioner's record of the settlement reads:

"It is agreed that all rents and damages to December, 1946, have been paid and settled. Of consent judgment for plaintiff for Rs. 462 being rent and damages up to the end of June, 1947. Ejectment and further damages at Rs. 77 per month from 1.7.47. If defendant pays each month's damages together with Rs. 77 out of arrears by the 25th of each month as from 25.7.47 writ of ejectment not to be executed till 31.12.47. Defendant undertakes to give vacant possession on 31.12.47. Defendant says he is living in the premises with boarders but when he leaves he will give vacant possession."

On July 8, 1947, decree was entered in terms of the agreement. The defendant failed to keep his undertaking to vacate the premises on December 31, 1947, and on February 27, 1948, the plaintiff applied for execution of his decree under section 224 of the Civil Procedure Code stating the particulars required therein. That application was allowed on the same day. It must be assumed that it was allowed after the court had satisfied itself as required by section 225 of the Civil Procedure Code that the application was substantially in conformity with the directions in section 224 and that the applicant was entitled to obtain execution.

On March 1, 1948, the defendant's proctor moved to recall the writ and stay execution, but not in accordance with section 343 (2) of the Civil Procedure Code, for no petition as required therein was filed.

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