Ibrahim Saibo, A.M.M. V. Mansoor, S.D.M.

1953 Present : Rose C.J., Gratiaen J., Pulle J., Swan J. and
L. M. D. de Silva J.

A. M. M. IBRAHIM SAIBO, Appellant, and S. D. M. MANSOOR et al., Respondents

S. C. 36-C. R. Colombo, 15,508

Landlord and tenant-Action for ejectment-Decree entered against tenant-Binding effect on sub -tenant-Joinder of sub-tenant as party-Civil Procedure Code, ss. 18, 324 (1), 325, 327-Rent Restriction Act, No. 29 of 1948, s. 13-Right of sub-tenant to claim statutory protection.

A sub-tenant of premises let under a non-notarial contract of monthly tenancy is not liable to be removed by a Fiscal's Officer under a writ of ejectment directed against the tenant alone in execution of a decree entered in proceedings in which the sub-tenant was not made a party although he had commenced his occupation of the premises before the action commenced.

Kudoos Bhai v. Visvalingam (1948) 50 N. L. R. 59, overruled.

In an action for rent and ejectment instituted by a landlord against his tenant, a sub-tenant may be added by Court as a party under the provisions of section 18 of the Civil Procedure Code. But where he was not so added as a party and the landlord, who has obtained a decree for ejectment against the tenant alone, applies to be placed in possession of the premises, the proper procedure for the Court to adopt is in the first instance to direct that " constructive delivery " of the premises be given by the Fiscal to the landlord under the proviso to section 324 (1) of the Civil Procedure Code, and thereafter to investigate the landlord's claim to complete and effectual possession in accordance with the procedure laid down in section 327 of the Civil Procedure Code.

The statutory protection given by the Rent Restriction Act to a tenant can always be relied on by a sub-tenant.

APPEAL from a judgment of the Court of Requests, Colombo. It was reserved under the provisions of section 51 of the Courts Ordinance for the decision of a Bench of Five Judges.

H. V. Perera, Q.C., with M. Somasunderam and S. Sharvananda, for the petitioner appellant.-The question is whether a sub-tenant is liable to be ejected under a writ of ejectment obtained by a landlord against a tenant in execution of a decree entered in proceedings to which the sub-tenant was not made a party. In this connection sections 323 and 324 of the Civil Procedure Code are relevant. The question is, who is bound by a decree for possession of immovable property. Clearly the parties to the action are bound, and so are persons occupying the property by virtue of some relationship subordinate to the judgment-debtor, e.g., his wife, children and servants. With regard to the position of privies by subordination see Bigelow on Estoppel, 6th ed., pp. 158, 159. Persons in occupation - e.g., lessees, mortgagees-who have rights of property acquired from the judgment-debtor will be bound by the decree only if they acquired their interests either pending the action or after decree. See section 11 of the Registration of Documents Ordinance

(Chap. 101). A distinction must be drawn between a person occupying the property under a notarial lease and a person who is in occupation as a monthly tenant. The former has a right of property, the latter has only a personal right. With regard to the juridical nature of a tenant's rights, see Wille: Landlord and Tenant, 4th ed., p. 133. See also section 2 of the Prevention of Frauds Ordinance (Chap. 57), and Carron v. Fernando 1[(1933) 35 N. L. R. 352.] It has been held that a sub-lessee of a monthly tenant and a tenant at will cannot claim to occupy the property when the tenancy is extinguished. See Sailendra Nath Bhattacharjee v. Bijan Lal Chakravarty 2[(1945) A. I. R. Calcutta 283.] and Berton v. Alliance Economic Investments 3[(1922) 1 K. B. 742. 13 (1913)].

H. W. Tambiah, with V. Ratnasabapathy and R. R. Nalliah, for the 2nd defendant respondent.-The Rent Restriction Ac

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