Jayalath Et Al., V. Abdul Razak Et Al.,

1954 Present: Rose C.J. and Sansoni J.

D. S. JAYALATH et al, Appellants, and ABDUL RAZAK et al.,
Respondents

S. C. 65-D. C. (Inty.) Kandy, 2,259

Jurisdiction-Execution of proprietary decree-Right to challenge validity of decree- Civil Procedure Code, ss. 325, 394.

Execution proceedings to enforce a judgment are collateral to the judgment, and no inquiry into the regularity or validity of the judgment can be permitted in such proceedings.

In a suit between A and B, B died pending the action and B's devisees under his last will were substituted in his place. Subsequently decree was entered ordering A to be placed in possession of the premises which were the subject matter of the action. No appeal was filed against the judgment. When the Fiscal tried to execute the decree he was obstructed by C who had become a tenant of the premises under B during the pendency of the action and, later, under B's widow and the other substituted parties. In proceedings taken by the judgment-creditor under section 325 of the Civil Procedure Code it was contended on. behalf of C that the Court had no jurisdiction to enter the decree it did because, under section 394 of the Civil Procedure Code, only the executor or administrator of the deceased B, and not his devisees, could have been substituted in the place of B.

Held, that even assuming that the judgment was based upon a misconception of the true legal position, it was not open to C to impeach the judgment for errors of law or irregularity in procedure.

Muheyadin v. Thambiappah (1945) 46 N. L. R. 370, distinguished.

APPEAL from an order of the District Court, Kandy.

N. E. Weerasooria, Q.C., with C. Thiagalingam, Q.C., H. W. Tambiah, E. D. Cosme and T. Parathalingam, for the 1st to 4th respondents appellants.

H. V. Perera, Q.C., with S. Sharvananda, for the defendant petitioner respondent.

Cur. adv. vult.

October 11, 1954. ROSE C.J.-

This matter originated in an action against the present respondent by his father for a declaration that the respondent was holding certain properties in trust for the plaintiff and that the deed relating to the properties be declared null and void for the reason that they were revocable deeds of gift and had indeed been revoked by the plaintiff by deed P2 in 1947. Subsequently, before the determination of the action, the father of the respondent died and the proceedings were continued by the substituted plaintiffs who were substituted on an application made by the respondent and who claimed to be the original plaintiff's legal heirs. All the parties to the proceedings are Muslims.

On the 4th December, 1953, judgment was given in the District Court dismissing the action of the substituted plaintiffs and entering a decree in favour of the defendant-respondent in terms of paragraphs (6) and (c) of the prayer in his amended answer, that is to say, declaring that the respondent was entitled to the premises in question and ordering the ejectment of the substituted plaintiffs from the said premises.

The relevant part of the decree, which bears the date 4th December, 1953, states :-

" It is further ordered and decreed that the defendant be and he is hereby declared entitled to the said premises.

It is further ordered and decreed that the substituted plaintiffs be ejected from premises No. 132, Colombo Street, and 28, Peradeniya Road, Kandy, fully described and set out in the said schedule and the defendant placed in peaceful and quiet possession thereof".

There was no appeal against that decree.

On 10th December, 1953, the respondent applied to the Court for execution of the decree, and his application was allowed. Writ of possession was issued on the following day against the substituted plaintiffs. When the Fiscal's Officer went to the premises in question the 1st, 2nd, and 3rd appellants stopped execution of the decree by signing the document R1 dated December 14, 19

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