CIVIL PROCEDURE CODE



CIVIL PROCEDURE CODE
AN ORDINANCE TO CONSOLIDATE AND AMEND THE LAW RELATING TO THE PROCEDURE OF THE CIVIL COURTS.
Ordinance Nos,
2 of 1889
12 of 1895
23 of 1901
12 of 1904
14 of 1907
31 of 1909
9 of 1917
39 of 1921
42 of 1921
21 of 1927
23 of 1927
25 of 1927
15 of 1930
26 of 1930
4 of 1940
18 of 1944
39 of 1945
Act Nos,
7 of 1949
43 of 1949
20 of 1954
48 of 1954
32 of 1957
49 of 1958
3 of 1960
24 of 1961
5 of 1964
23 of 1969
24 of 1969
Law Nos,
12 of 1973
44 of 1973
25 of 1975
19 of 1977
20 of 1977
Act Nos,
53 of 1980
[1st August
, 1890
]
CHAPTER I
PRELIMINARY
Short title.

1. This Ordinance may be cited as the Civil Procedure Code.*

Where no provision is made special directions to be given by Court of Appeal.

4.+ In every case in which no provision is made by this Ordinance, the procedure and practice hitherto in force shall be followed, and if any matter of procedure or practice for which no provision is made by this Ordinance or by any law for the time being in force shall after this Ordinance comes into operation arise before any court, such court shall thereupon make application to the Court of Appeal for, and the Court of Appeal shall and is hereby required to give, such special orders and directions thereupon as the justice of the case shall require :

Provided always that nothing in this Ordinance contained shall be held in any way to affect or modify any special rules of procedure which, under or by virtue of the provisions of any enactment, may have from time to time been laid down or prescribed to be followed by any civil court in Sri Lanka in the conduct of any action, matter, or thing of which any such court can lawfully take cognizance, except in so far as any such provisions are by this Ordinance expressly repealed or modified.

Interpretation

5. The following words and expressions in this Ordinance shall have the meanings hereby assigned to them, unless there is something in the subject or context repugnant thereto;

” action” is a proceeding for the prevention or redress of a wrong;


[2, Law 20 of 1977]

” Attorney-General ” includes the Solicitor-General, the Additional Solicitor-General and any State Counsel specially authorized by the Attorney-General to represent the Attorney-General;

” cause of action ” is the wrong for the prevention or redress of which an action may be brought, and includes the denial of a right, the refusal to fulfill an obligation, the neglect to perform a duty and the infliction of an affirmative injury;

” civil court” means a court in which civil actions may be brought;

” counsel” means an attorney-at-law instructed by a registered attorney;

” court” means a Judge empowered by law to act judicially alone, or a body of Judges empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially;

” decree ” means the formal expression of an adjudication upon any right claimed or defence set up in a civil court, when such adjudication, so far as regards the court expressing it, decides the action or appeal; (An order rejecting a plaint is a decree within this definition.)

” foreign court ” means a court situate beyond the limits of, and not having authority in, Sri Lanka;

“foreign judgment” means the judgment of a foreign court;


[2,Law 20 of 1977]

“Judge “means the presiding officer of a court and includes Judges of the Supreme Court and of the Court of Appeal, District Judges, Judges of Family Courts and Judges of Primary Courts;

“judgment” means the statement given by the Judge of the grounds of a decree or order;

“judgment-creditor” and ” decree-holder ” mean any person in whose favour a decree or order capable of execution has been made, and include any transferee of such decree or order;

“judgment-debtor” means any person against whom a decree or order capable of execution has been made;


[2, Law 20 of I977]

” legal document” includes all processes, pleadings, petitions, affidavits, notices, motions and other documents, proceedings, and written communications;

” order ” means the formal expression of any decision of a civil court which is not a decree ;

” original court ” includes District Courts, Family Courts and Primary Courts;


[2,Law 20 of 1977]

“Public Trustee” means the Public Trustee of Sri Lanka appointed under the Public Trustee Ordinance and includes a Deputy Public Trustee or any other state officer generally or specially authorized by the Public Trustee to act on his behalf;

” recognized agent” includes the persons designated under that name in section 25 and no others;


[2, Law 20 of 1977.]

” registered attorney ” means an attorney-at-law appointed under Chapter V by a party or his recognized agent to act on his behalf;


[2, Law 20 of 1977.]

” Registrar” in relation to a court – includes an Additional, Deputy or Assistant Registrar;

” signed ” includes ” marked ” when the person making the mark is unable to write;


[2, Law 20 of 1977.]

” the Island ” and ” this Island ” means respectively the Island of Sri Lanka;

” written ” and ” writing” include ” printed” and ” print” and ” lithographed ” and ” lithograph ” respectively.

PART I
OF ACTIONS IN GENERAL
CHAPTER II
GENERAL PROVISIONS
Action.

6. Every application to a court for relief or remedy obtainable through the exercise of the court’s power or authority, or otherwise to invite its interference, constitutes an action.

Procedure of an action.

7. The procedure of an action may be either ” regular ” or ” summary “.

Illustrations

In actions of which the procedure is regular, the person against whom the application is made is called upon to formally state his answer to the case which is alleged against him in the application before any question of fact is entertained by the court, or its discretion thereon is in any degree exercised.

In actions of which the procedure is summary, the applicant simultaneously with preferring his application supports with proper evidence the statement of fact made therein; and if the court in its discretion considers that a prima facie case is thus made out

(a) either the order sought is immediately passed against the defendant before he has been afforded an opportunity of opposing it, but subject to the expressed qualification that it will only lake effect in the event of his not showing any good cause against it on a day appointed therein for the purpose ;

(b) or a day is appointed by the court for entertaining the matter of the application on the evidence furnished, and notice is given to the defendant that he will be heard in opposition to it on that day if he thinks proper to come before the court for that purpose.

Procedure of action to be ordinarily regular.


[2,53 of 1980]

8. Save and except actions in which it is by this Ordinance or any other law specially provided that proceedings may be taken by way of summary procedure, every action shall commence and proceed by a course of regular procedure, as hereinafter prescribed.

CHAPTER III
OF THE COURT OF INSTITUTION OF ACTION
Institution of actions: In what court.

9. Subject to the pecuniary or other limitations prescribed by any law, action shall be instituted in the court within the local limits of whose jurisdiction

(a) a party defendant resides ; or

(b) the land in respect of which the action is brought lies or is situate in whole or in part; or

(c) the cause of action arises; or

(d) the contract sought to be enforced was made.

When one of two or more courts may entertain an action.

When it is alleged to be uncertain within the local limits of the jurisdiction of which of two or more courts any immovable property is situate, any one of those courts may, if satisfied that there is ground for the alleged uncertainty, record a statement to that effect, and thereupon proceed to entertain and dispose of any action relating to that property ; and its decree in the action shall have the same effect as if the property Are situate within the local limits of its jurisdiction:

Provided that the action is one with respect to which the court is competent as regards the nature and value of the action to exercise jurisdiction.

Of application for withdrawal and transfer of action


[3, Law 20 1977]

10. Any of the parties to an action which is pending in any original court may, before trial, and after notice in writing to the other parties of his intention so to do, apply to the Court of Appeal by motion, which shall be supported by affidavit setting out the grounds on which it is based, for the withdrawal of such action from the court in which it is pending and for the transfer of it for trial to any other court competent to try the same in respect of its nature and the amount or value of its subject-matter. And the Court of Appeal may, on any such application after hearing such of the parties as desire to be heard, and on being satisfied that such withdrawal and transfer are desirable for any of the following reasons;

(a) that a fair and impartial trial cannot be had in any particular court or place; or

(b) that some question of law of unusual difficulty is likely to arise ; or

(c) that it is expedient on any other ground,

withdraw any such action pending in any such court, and transfer it for trial to any other such court as aforesaid, upon any terms that the Court of Appeal shall think fit. When the action might have been instituted in any one of several courts, the balance of convenience only shall be deemed sufficient cause for such withdrawal and transfer to one of the alternative courts.

Stamp duty.

In no case in which any action is so transferred as aforesaid from one court to another shall any stamp fee be leviable in the court to which the action is transferred on any pleading or exhibit on which the proper stamp fee has been paid in the court from which the action is so transferred.

CHAPTER IV
OF PARTIES AND THEIR APPEARANCES, APPLICATIONS, AND ACTS
Plaintiffs.

11. All persons may be joined as plaintiffs in whom the right to any relief claimed is alleged to exist, whether jointly, severally, or in the alternative, in respect of the same cause of action. And judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief for such relief as he or they may be entitled to, without any amendment of the plaint for that purpose. But the defendant though unsuccessful, shall be entitled to his costs occasioned by so joining any person who is not found entitled to relief, unless the court in disposing of the costs of the action otherwise directs.

Where joint tenants or tenants in common.

12. Where two or more persons are entitled to the possession of immovable property as joint tenants or tenants in common, one or more of them may maintain an action in respect of his or their undivided shares in the property in any case where such an action might be maintained by all.

Substituted and added plaintiffs.

13. Where an action has been instituted in the name of the wrong person as plaintiff, or where it is doubtful whether it has been instituted in the name of the right plaintiff, the court may at any stage of the action, if satisfied that the action has been so commenced through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person or persons, with his or their consent, to be substituted or added as plaintiff or plaintiffs, upon such terms as the court thinks just.

Defendants.

14. All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative, in respect of the same cause of action. And judgment may be given against such one or more of the defendants as may be found to be liable, according to their respective liabilities, without any amendment.

Who may be joined as parties defendant.

15. The plaintiff may, at his option, join as parties to the same action all or any of the persons severally, or jointly and severally, liable on any one contract, including parties to bills of exchange and promissory notes.

Where numerous parties, one may sure or defend for all. Notice.

16. Where there are numerous parties having a common interest in bringing or defending an action, one or more of such parties may, with the permission of the defend for all. court, sue or be sued, or may defend in such an action on behalf of all parties so interested. But the court shall in such case give, at the expense of the party applying so to sue or defend, notice of the institution of the action to all such parties, either by personal service or (if from the number of parties or any other cause such service is not reasonably practicable, then) by public advertisement, as the court in each case may direct.

Misjoinder not to defeat action.

17. No action shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every action deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.

Nothing in this Ordinance shall be deemed to enable plaintiffs to join in respect of distinct causes of action.

If the consent of anyone who ought to be joined as a plaintiff cannot be obtained, he may be made a defendant, the reasons therefore being stated in the plaint.

Parties improperly joined may be struck out. Addition of parties.

18.

(1) The court may on or before the hearing, upon the application of either party, and on such terms as the court thinks just, order that the name of any party, whether as plaintiff or as defendant improperly joined, be struck out; and the court may at any time, either upon or without such application, and on such terms as the court thinks just, order that any plaintiff be made a defendant, or that any defendant be made a plaintiff, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in that action, be added.

(2) Every order for such amendment or for alteration of parties shall state the facts and reasons which together form the ground on which the order is made. And in the case of a party being added, the added party or parties shall be named, with the designation ” added party “, in all pleadings or processes or papers entitled in the action and made after the date of the order.

Intervention not otherwise allowed.

19. No person shall be allowed to intervene in a pending action otherwise than in pursuance of, and in conformity with, the provisions of the last preceding section. And no person shall be added as plaintiff, or as the next friend of a plaintiff, without his own consent thereto;

Except in under section 16.

Provided however that any person on cases whose behalf and action is instituted or under section defended may apply to the 16. court to be made a party, and all parties whose names are so added as defendants shall be served with a summons in manner hereinafter mentioned, and the proceedings as against them shall be deemed to have begun only on the service of such summons.

Conduct of the action

20. The court may give the conduct of the action to such plaintiff as it deems action proper.

Amendment of plaint

21. Where a defendant is added, the plaint shall, unless the court direct otherwise, be amended in such manner as may be necessary, and a copy of the amended plaint shall be served on the new defendant and on the original defendants.

Objections for non-joinder or misjoinder to be taken before hearing.

22. All objections for want of parties, or for joinder of parties who have no interest in the action, or for misjoinder as co- plaintiffs or co-defendants, shall be taken at the earliest possible opportunity, and in all cases before the hearing. And any such objection not so taken shall be deemed to have been waived by the defendant.

Plaintiffs (or defendants) may authorize one of them to act for them.

23. When there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead, or act for such other in any proceeding under this Ordinance; and in like manner, when there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead, or act for such other in any such proceeding. The authority shall be in writing signed by the party giving it, and shall be filed in court.

CHAPTER V
OF RECOGNIZED AGENTS AND ATTORNEYS-AT-LAW
Appearances may be by party in person, his recognized agent, or attorney-at-law.

24. Any appearance, application, or act in or to any court, required or authorized by law to be made or done by a party to an action or appeal in such court, except only such appearances, applications, or acts as by any law for the time being in force only attorneys-at-law are authorized to make or do, and except when by any such law otherwise expressly provided, may be made or done by the party in person, or by his recognized agent, or by an attorney-at-law duly appointed by the party or such agent to act on behalf of such partly :

Provided that any such appearance shall be made by the party in person, if the court so directs. An attorney-at-law instructed by a registered attorney for this purpose, represents the registered attorney in court.

Recognized agents.

25. The recognized agents of parties by whom such appearances and applications may be made or acts may be done are

(a) the Attorney-General, on behalf of the State in respect of any court; who is also authorized to depute his power of appointing a registered attorney on behalf of the State in respect to any court to any person by a written document to be signed by the Attorney-General, and to be filed in that court;

(b) persons holding general powers of attorney from parties not resident within the local limits of the jurisdiction of the court within which limits the appearance or application is made or act done, authorizing them to make such appearances and applications, and do such acts on behalf of such parties; which power, or a copy thereof certified by an attorney-at-law or notary, shall in each case be filed in the court;


[4, Law 20 of 1977]

(c) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the court within which limits the appearance or application is made or act done, in matters connected with such trade or business only, where no other agent is expressly authorized to make such appearances and applications and do such acts.

Processes served on the recognized agent

26.

(1) Processes served on the recognized agent of a party to an action or appeal shall be as effectual as if the same had been served on the party ‘in person, effectual. unless the court otherwise directs.

(2) The provisions of this Ordinance for the service of process on a party to an action shall apply to the service of process on his recognized agent.

Appointment of registered attorney.

27.

(1) The appointment of a registered attorney to make any appearance or application, or do any act as aforesaid, shall be in writing signed by the client, and shall be filed in court; and every such appointment shall contain an address at which service of any process which under the provisions of this Chapter may be served on a registered attorney, instead of the party whom he represents, may be made.

(2) When so filed, it shall be in force until revoked with the leave of the court and after notice to the registered attorney by a writing signed by the client and filed in court, or until the client dies, or until the registered attorney dies, is removed, or suspended, or otherwise becomes incapable to act, or until all proceedings in the action are ended and judgment satisfied so far as regards the client.

(3) No counsel shall be required to present any document empowering him to act. The Attorney-General may appoint a registered attorney to act specially in any particular case or to act generally on behalf of the State.

Death or incapacity Of registered attorney.

28. If any such registered attorney as in the last preceding section is mentioned shall die, or be removed or suspended, or otherwise become incapable to act as aforesaid, at any time before judgment, no further proceeding shall be taken in the action against the party for whom he appeared until thirty days after notice to appoint another registered attorney has been given to that party either personally or in such other manner as the court directs.

Service on registered attorney

29. Any process served on the registered attorney of any party or left at the office or ordinary residence of such registered attorney, relative to an action or appeal, except where the same is for the personal appearance of the party, shall be presumed to be duly communicated and made known to the party whom the registered attorney represents; and, unless the court otherwise directs, shall be as effectual for all purposes in relation to the action or appeal as if the same had been given to, or served on, the party in person.

Agent to accept service.

30. Besides the recognized agents described in section 25, any person residing within the jurisdiction of the court may be appointed an agent to accept service of process. Such appointment may be special or general, and shall be made by an instrument in writing signed by the principal, which shall contain an address at which such service may be made, and which, or, if the appointment be general, a duly attested copy thereof, shall be filed in court.

No appointment under this section shall be of any force or effect for the purpose of enabling or authorizing process to be served on an agent so appointed in any action to recover money due upon the mortgage of immovable property.

Agent to accept service in action upon mortgage of immovable property.


[2, Law 12 of 1973.]

30A.

(1) The mortgagor of any immovable property may make application for the registration of the address of any registered attorney or any person for the service of process in any action upon the mortgage. The application shall be made substantially in the form No. 11A in the First Schedule.

(2) The address for service shall be registered in or in continuation of the folio in which is registered the mortgage of the immovable property.

(3) Where the applicant declares in his application that a previously registered address is cancelled, the Registrar shall make a new entry in the register and cancel the registration of the previous address.

(4) The fee for registration of the address for service or for a change of such address shall be fifty cents, with an addition of ten cents for each folio after the first in which the address is to be registered.

CHAPTER VI
OF THE SCOPE AND SUBJECT OF ACTION
Regular action how to be framed.

33.* Every regular action shall, as far as Regular action, practicable, be so framed as to afford how to be ground for a final decision upon the subjects framed, in dispute, and so to prevent further litigation concerning them,

Every action shall include whole claim.

34.

(1) Every action shall include the Every action whole of the claim which the plaintiff is shall include entitled to make in respect of the cause of w _e c aim-action; but a plaintiff may relinquish any portion of his claim in order to bring the action within the jurisdiction of any court.

(2) If a plaintiff omits to sue in respect of, or intentionally relinquishes any portion of, his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. A person entitled to more than one remedy in respect of the same cause of action may sue for all or any of his remedies; but if he omits (except with the leave of the court obtained before the hearing) to sue for any of such remedies, he shall not afterwards sue for the remedy so omitted.

(3) For the purpose of this section, an obligation and a collateral security for its performance shall be deemed to constitute but one cause of action.

Illustration

A lets a house to B at a yearly rent of Rs. 1,000. The rent for the whole of the two years 1886 and 1887 is due and unpaid. A sues B only for the rent due for one of those years. A shall not afterwards sue B for the rent due for the other year.

Joinder of claims in actions for immovable property.

35.

(1) In an action for the recovery of immovable property, or to obtain a declaration of title to immovable property, no other claim, or any cause of action, shall be made unless with the leave of the court, except –

(a) claims in respect of mesne profits or arrears of rent in respect of the property claimed;

(b) damages for breach of any contract under which the property or any part thereof is held; or consequential on the trespass which constitutes the cause of action; and

(c) claims by a mortgagee to enforce any of his remedies under the mortgage. Example. A sues B to recover land upon the allegation that the land belongs to C, and that he. A, has bought it of C. A makes C a party defendant; but he cannot, without leave of the court, join with this claim an alternative claim for damages against C for non-performance of his contract of sale.

In actions against executors, &c.

(2) No claim by or against an executor, administrator, or heir, as such, shall in any action be joined with claims by or against him personally unless the last-mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor, administrator, or heir, or are such as he was entitled to or liable for jointly with the deceased person whom be represents.

In other cases.

36.

(1) Subject to the rules contained in the last section, the plaintiff may unite in the same action several causes of action against the same defendant or the same defendants jointly, and any plaintiffs having causes of action in which they are jointly interested against the same defendant or defendants may unite such causes of action in the same action.

Exception: court may order separation.

But if it appears to the court that an such causes of action cannot be conveniently tried or disposed of together, the court may, at any time before the hearing, of its own motion or on the application of any defendant, in both cases either in the presence of, or upon notice to, the plaintiff, or at any subsequent stage of the action if the parties agree, order separate trials of any such causes of action to be had, or make such other order as may be necessary or expedient for the separate disposal thereof.

(2) When causes of action are united, the jurisdiction of the court as regards the action shall depend on the amount or value of the aggregate subject-matters at the date of instituting the action, whether or not an order has been made under the second paragraph of subsection (1).

Application by defendant in such cases.

37. Any defendant alleging that the plaintiff has united in the same action several causes of action, which cannot be conveniently disposed of in one action, may at any time before the hearing apply to the court for an order confining the action to such of the causes of action as may be conveniently disposed of in one action.

Order of court thereon.

38.

(1) If, on the hearing of such application, it appears to the court that the causes of action are such as cannot all be conveniently disposed of in one action, the court may order any of such causes of action to be excluded, and may direct the plaint to be amended accordingly, and may make such order as to costs as may be just.

(2) Every amendment made under this section shall be attested by the signature of the Judge.

CHAPTER VII
OF THE MODE OF INSTITUTION OF ACTION
Regular action to commence by plaint .


[6,law 20 of 1977]

39. Every action of regular procedure shall be instituted by presenting a duly stamped written plaint to the court or to such officer as the court shall appoint in this behalf.

Requisites of Plaint.


[7,law 20 of 1977]

40. The plaint shall be distinctly written upon good and suitable paper, and shall plaint contain the following particulars :

(a) the name of the court and date of filing the plaint;

(b) the name, description, and place of residence of the plaintiff;

(c) the name, description, and the place of residence of the defendant so far as the same can be ascertained ,

(d) a plain and concise statement of the circumstances constituting each cause of action, and where and when it arose. Such statement shall be set forth in duly numbered paragraphs; and where two or more causes of action are set out, the statement of the circumstances constituting each cause of action must be separate, and numbered;

(e) a demand of the relief which the plaintiff claims; and

(f) if the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished,

If the plaintiff seeks the recovery of money, the plaint must state the precise amount, so far as the case admits. In an action for a specific chattel, or to establish, recover, or enforce any right, status, or privilege, or for mesne profits, or for the amount which will be found due to the plaintiff on taking unsettled accounts between him and the defendant, the plaint need only state approximately the value of the chattel, right, status, or privilege, or the amount sued for.

Land sued for to be described by metes and bounds or sketch.

41. When the claim made in the action is for some specific portion of land, or for some snare or interest in a specific portion of land, then the portion of land must be described in the plaint so far as possible by reference to physical metes and bounds, or by reference to a sufficient sketch, map, or plan to be appended to the plaint, and not by name only.

Plaintiff suing in a representative character must show that the character has accrued to him.

42. When the plaintiff sues in a representative character, the plaint should show, not only that he has an actual existing interest in the subject-matter, but that he has taken the steps necessary to enable him to institute an action concerning it.

Illustrations

(a) A sues as B’s executor. The plaint must state that A has proved B’s will.

(b) A sues as C’s administrator- The plaint must state that A has taken out administration to C’s estate.

Plaint must show defendant’s interest and liability to be sued.

43. The plaint must show that the defendant is or claims to be interested in the subject-matter, and that he is liable to be called upon to answer the plaintiffs demand.

Exemption from bar from lapse of time to be shown.

44. If the cause of action arose beyond the period ordinarily allowed by any law for instituting the action, the plaint must show the ground upon which exemption from such law is claimed.

Jurisdiction of court to be averred.

45. Every plaint shall contain a statement of facts setting out the jurisdiction of the court to try arid determine the claim in respect of which the action is brought.

Subscription of plaint

46.

(1) Every plaint presented by a registered attorney on behalf of a plaintiff shall be subscribed by such registered attorney. In every other case in which a plaint is presented, it shall be subscribed by the plaintiff; and his signature shall be verified by the signature of some officer authorized by the court in that behalf.

Court may refuse to entertain plaint

(2) Before the plaint (whether presented by the plaintiff or by a registered attorney in his behalf) is allowed to be filed, the court may, if in its discretion it shall think fit, refuse to entertain the same for any of the following reasons, namely:

(a) if it does not state correctly, and without prolixity, the several particulars hereinbefore required to be specified therein;

(b) if it contains any particulars other than those so required ;

(c) if it is not subscribed, or subscribed and verified, as the case may be, as hereinbefore required;

(d) if it does not disclose a cause of action;

(e) if it is not framed in accordance with section 33 ;

(f) if it is wrongly framed by reason of non-joinder or misjoinder of parties, or because the plaintiff has joined causes of action which ought not to be joined in the same action,

and may return the same for amendment then and there, or within such time as may be fixed by the court, upon such terms as to the payment of costs occasioned by the amendment as the court thinks fit;

Provided that no amendment shall be allowed which would have the effect of converting an action of one character into an action of another and inconsistent character;

And may reject.

And provided further, that in each of the following cases, namely :

(g) where the relief sought is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so;

(h) where the relief sought is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff on being required by the court to supply the requisite stamps within a time to be fixed by the court fails to do so;

(i) when the action appears from the statement in the plaint to be barred by any positive rule of law;

(j) when the plaint having been returned for amendment within a time fixed by the court is not amended within such time,

the plaint shall be rejected; but such rejection shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.

Where plaint presented to wrong court.

47. In every case where an action has been instituted in a court not having jurisdiction by reason of the amount or value involved, or by reason of the conditions made necessary to the institution of an action in any particular court by section 9 not being present, the plaint shall be returned to be presented to the proper court.

Order on rejection of plaint.

48. Every order returning or rejecting a plaint shall specify the date when the plaint was presented and so returned or rejected, the name of the person by whom it was presented and whether such person was plaintiff or registered attorney, and the fault or defect constituting the ground of return or rejection; and every such order shall be in writing signed by the Judge, and filed of record.

Memorandum of documents to be endorsed on plaint.


[8, Law 20 of 1977]

49.

(1) The plaintiff shall endorse on the plaint, or annex thereto, a memorandum of the documents, if any, which he has produced along with it; and if the plaint is admitted, shall present as many copies on unstamped paper of the plaint as there are defendants, translated into the language of each defendant whose language is not the language of the court; unless the court, by reason of the length of the plaint or the number of the defendants or for any other sufficient reason, permits him to present a like number of concise statements of the nature of the claim made, or of the relief or remedy required in the action, in which case he shall present such statements.

(2) If the plaintiff sues or the defendant or any of the defendants is sued in a representative capacity, such statement shall show in what capacity such plaintiff or defendant sues or is sued ; and the plaintiff may by leave of the court amend such statements so as to make them correspond with the plaint.

Such memorandum and copies or statements shall be examined by the Registrar of the court and signed by him if See finds them correct.

Plaintiff to produce with plaint document sued on.

50. If a plaintiff sues upon a document in his possession or power, he shall produce it in court when the plaint is presented, and document sued shall at the same time deliver the document on or a copy thereof to be filed with the plaint.

To annex list of other documents.

51. If he relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint.

And to state where document not in his possession is.

52. In the case of any such document not being in his possession or power, he shall, if possible, state in whose possession or power it is.

Action on lost negotiable instrument.

53. In the case of any action founded upon a bill of exchange, promissory note, cheque, or any negotiable instrument, if it be proved that the instrument is lost, and if an indemnity be given by the plaintiff, to the satisfaction of the court, against the claims of any other person upon such instrument, the court may make such decree as it would have made if the plaintiff had produced the instrument in court when the plaint was presented, and had at the same time delivered a copy of the instrument to be filed with the plaint.

Document not produced with plaint inadmissible afterwards without leave.


[9, Law 20 of 1977.]

54. A document which ought to be produced in court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint, and which is not produced or entered accordingly, shall not, without the leave of the court, be received in evidence on his behalf at the hearing of the action.

CHAPTER VIII
OF THE ISSUE AND SERVICE OF SUMMONS
Summons.


[10 Law 20 of 1977]

55.

(1) Upon the plaint being filed and the copies or concise statements required by section 49 presented, the court shall order summons in the form No. 16 in the First Schedule to issue, signed by the Registrar of the court, requiring the defendant to answer the plaint on or before a day to be specified in the summons. The summons, together with such copy or concise statement each translated into the language of the defendant where his language is not the language of the court, attached thereto, shall be delivered under a precept from the court in the form No. 17 in the said Schedule, or to the like effect, to the Fiscal of the court or to the Fiscal of a court of like jurisdiction within the local limits of whose jurisdiction the defendant resides, who shall cause the same to be duly served on the defendant, or on each defendant, if more than one, and shall as hereinafter provided, return the same and the execution thereof to the court, duly verified by the officer to whom the actual service thereof has been entrusted.

(2)

(a) Every party to an action, not appearing by a registered attorney, shall on or before the date specified in the summons deliver to the Registrar a memorandum substantially in the form No. 16A in the First Schedule setting out an address (hereinafter referred to as the ” registered address”) for the service on him of the notice under section 80 and any other legal document required to be served on a party under the provisions of this Ordinance unless otherwise provided. Every party shall with such memorandum tender to the Registrar stamps to the value required to cover cost of service of such notice by registered post.

(b) Where a party appears by a registered attorney the address of the registered attorney contained in his appointment shall be deemed to be the registered address of such party; and such registered attorney shall, on or before the date specified in the summons, tender to the Registrar stamps to the value required to cover cost of service by registered post, of the notice under section 80.

(c) The dispatch by registered post to the registered address of a party of the notice under section 80, and of any other legal document required to be served on him shall be deemed to be sufficient service.

(d) The Registrar shall keep and maintain a list of the registered addresses furnished to him under this subsection, which list shall be filed as part of the record of the case.

SERVICE
Personal service of summons, what is.

59.* Subject to the several provisions as to service hereinafter in Chapter XXIII contained, service of the summons shall be made by delivering or tendering to the defendant personally a duplicate thereof.

Service lo be personal if practicable ; otherwise as court may direct.

60. Whenever it may be practicable, the service of summons shall be made on the defendant in person ; but if, after reasonable exertion, the Fiscal is unable to effect personal service, he shall report such inability to the court in a fair-written return to the precept, having the summons attached thereto as an exhibit, and it shall be competent for the court, on being satisfied by evidence adduced before it that the defendant is within Sri Lanka, to prescribe any other mode of service as an equivalent for personal service :

Provided, however, that where such a return is made by the Fiscal in an action for the recovery of money due on the mortgage of immovable property, the court shall not under the preceding provisions of this section have the power to prescribe any other mode of service as an equivalent for personal service, but the following provisions shall apply whether or not the court is satisfied that the defendant is within Sri Lanka:-

(a) if the court is satisfied upon a certificate filed in that behalf by the registered attorney for the plaintiff that the mortgagor has not registered an address for service under section 30A, or if such an address having been registered the court is satisfied that the Fiscal was unable to effect service on such agent under section 64A, the court shall upon application made by the plaintiff, order that copies of the summons in such language as the court may consider appropriate shall be affixed by the Fiscal in at least three conspicuous places upon the mortgaged property and at the court-house, and may in its discretion direct such other acts or things to be done as the court may consider appropriate (including in a case where an address has been registered under section 30A, the sending of a copy of the summons by registered post to that address);

(b) service effected in the manner specified in paragraph (a) shall be deemed to be service on the defendant.

Substituted service to be as effectual as personal

61. The service substituted by order of the court shall be as effectual as if it had been made on the defendant personally.

Substituted service


[12 Law 20 of 1977]

62. Whenever service is substituted by order of the court, the court shall fix a day on or before which the defendant shall file his answer and comply with the other requirements of section 55.

When more defendants than one, service on each .

63. When there are more defendants when more than one, service of the summons shall be defendants made on each defendant.

Agents to accept service; partners and manager.

64. When a defendant has an appointed under section 30 empowered to accept service, service of summons on such agent shall be sufficient. And in the case of an action against partners relative to a partnership transaction, or to an actionable wrong in respect of which relief is claimable from the partners, as a firm, each partner is an agent so empowered of each other partner, as is also the person (if any) not being a partner, who has the management of the business of the partnership at the principal place of such business within the local limits of the court’s ordinary jurisdiction.

Nothing in the preceding provisions of this section shall be deemed to authorize summons in an action to recover moneys due on a mortgage of immovable property to be served on any agent appointed under section 30.

Service on agent in mortgage action.

64A. Where the mortgagor has registered the address of an agent under section 30A, service of summons may be made on such agent and shall be sufficient.

When defendant out of jurisdiction has manager within it.

65. In an action relating to any business or work against a person who does not reside within the local limits of the jurisdiction of the court from which the summons issued, service on any manager or agent who at the time of the service personally carries on such business or work for such person within such limits shall be deemed good service; and for the purpose of this section the master of a ship is the agent of his owner or chartered.

Service on agent in charge of immovable property.

66. In an action to obtain relief respecting or compensation for wrong to immovable property, if the service cannot be made on the defendant in person, and the defendant has no agent empowered to accept service, it may be made on any agent of the defendant in charge of the property.

Misdescription not to vitiate summons, &c.

67. No misnomer or misdescription of any person or place in any such summons, order, or process shall vitiate the same, provided that the person or place be therein described as he or it is commonly known, and provided that such misnomer or misdescription be not such as to mislead the party served therewith.

Service on defendant in jail.

68. If the defendant be in jail, the summons shall be delivered by the Fiscal to the officer in charge of the jail in which the defendant is confined, and such officer shall cause the summons to be served upon the defendant.

The summons shall be returned through the Fiscal to the court from which it is issued, with a statement of the service endorsed thereon, and signed by the officer in charge of the jail.

Service out of Sri Lanka. Application for, how made.

69. Service of a summons out of Sri Lanka may be allowed by the court in all cases in which the court has jurisdiction. Every application for an order for leave to serve such summons on a defendant out of Sri Lanka shall be by motion and shall be supported by evidence (by affidavit or otherwise) showing in what place or country such defendant is or may probably be found, and the grounds on which the application is made.

Order for, to prescribe mode of.


[13, Law 20 of 1977.]

70. Every order giving leave to effect to such service shall direct the mode of service, and direct that the defendant shall, on or before the date specified in such summons, file his answer and comply with the other requirements of section 55.

Form of summons

71. A summons under sections 69 and 70 shall be in the form No. 18 in the First Schedule.

CHAPTER IX
OF FILING ANSWER [§14, Law 20 of 1977.]
Judgment against defendant if he admits claim of the plaintiff.


[15, Law 20 of 1977.]

72. If the defendant admits the claim of the plaintiff, the court shall give judgment against admission so made. Such admission shall be the defendant according to the in writing, signed by the defendant and his signature attested by an attorney-at-law.

Answer to be in writing.


[15, Law 20 of 1977.]

73. If the defendant does not admit the plaintiffs claim, he shall himself, or his registered attorney shall on his behalf, deliver to the court a duly stamped written answer.

Requisites of answer.


[17, Law 20 of 1977.]

75.* Every such answer shall be distinctly written upon good and suitable paper, shall be duly stamped, shall be subscribed by the defendant or his duly 1977] constituted representative as in the case of a plaint is provided for the plaintiffs subscription, or if he is represented by a registered attorney, by such registered attorney, and shall contain the following particulars:-

(a) the name of the court, the number of the case, and the date of filing the answer;

(b) the name of the plaintiff;

(c) the name, description, and residence of the defendant;

(d) a statement admitting or denying the several averments of the plaint, and setting out in detail plainly and concisely the matters of fact and law, and the circumstances of the case upon which the defendant means to rely for his defence; this statement shall be drawn in duly numbered paragraphs, referring by number, where necessary, to the paragraphs of the plaint;

(e) when the defendant sets up a claim in reconvention the answer must contain a plain and concise statement of the facts constituting the ground of such claim which the defendant makes in reconvention. A claim in reconvention duly set up in the answer shall have the same effect as a plaint in a cross action so as to enable the court to pronounce a final judgment in the same action both on the original and on the cross claim; but it shall not affect the lien upon the amount decreed of any registered attorney in respect of the costs payable to him under the decree.

Jurisdiction of court to be specially traversed.

76. If the defendant intends to dispute the averment in the plaint as to the jurisdiction of the court, he must do so by a separate and distinct plea, expressly traversing such averment.

Rejection and amendment of answer.

77. If any answer is substantially defective in any of the particulars hereinbefore defined, or is argumentative or prolix, or contains matter irrelevant to the action, the court may, by an order to be endorsed thereon, reject the same or return it to the party by whom it was made, for amendment within a time to be fixed by the court, imposing such terms as to costs or otherwise as the court thinks fit.

If the answer is rejected or left un amended as ordered, the defendant shall be regarded as having failed to file answer.

The order so endorsed shall specify the ground of the rejection.

Copy of answer to be delivered to plaintiff or his registered attorney.


[18, Law 20 of 1977.]

78. A copy of the answer shall be served on the plaintiff, or each of the plaintiffs, if more than one, or his or their registered attorney.

CHAPTER X
OF THE REPLICATION AND FURTHER PLEADINGS
When replication may be allowed.


[19, Law 20 of 1977.]

79. Except in the case of a claim by a defendant in reconvention, no pleading after answer shall be tiled except by order of court on special motion to be made after due notice to the other side, and before the day appointed for the hearing of the action, upon such terms as to costs and the postponement of the hearing of the action as the court shall think fit. Such order shall not be made (except in the case of a claim in reconvention on the part of the defendant) unless the court is satisfied on such motion that the real issues between the parties cannot be conveniently raised without such further pleading. All pleadings after answer shall be subject to the rules prescribed by section 75 relative to the form and substance of the answer, so far as the same can be made applicable, and copies of such pleadings shall be served on the opposite party or his registered attorney.

CHAPTER XI
OF FIXING DAY OF TRIAL
Day of trial.


[20, Law 20 of 1977]

80.

(1) Forthwith on the expiration of the time allowed for the filing of the defendant’s answer, or, where a replication is permitted, on the last day of the time allowed for filing such replication, and whether the same is filed or not, the court shall appoint a day for the case to be called in order to fix the day of trial of the action and shall give notice thereof in writing by registered post to all parties who have furnished a registered address and tendered the cost of service of such notice as provided by subsection (2) of section 55.

(2) On the appointed day under subsection (1) of this section or where it appears to the court that the case is not ready for trial, on any later day to which the matter shall on that day have been postponed, the court shall fix the day of trial in open court.

(3) The court may subsequently on application made by either party and after hearing both parties, or after proof of notice of motion to the absent party, direct that the day for the hearing of any case shall be advanced or deferred.

A reasonable number of cases to be fixed for each day.

81. The court shall, in fixing the day of hearing, be careful not to appoint more cases for one day than there is a probability of the court getting through on that day.

Postponement.

82. When any case is in its turn called on for hearing upon the day appointed there for, the court may, for sufficient cause to be specified in its written order, direct that the hearing be postponed to a day which shall be fixed in the order, upon such terms as to costs or otherwise as the court shall think fit;

Provided that the court may in its discretion take and deal with a case out of its order in the cause list on any day for good reason to be adjudicated upon and recorded by the court before entering upon the case.

Un disposed of cases to be placed at the head of the roll.

83. (1) The cases in any day’s cause list not disposed of on that day, by reason of want of time, will be placed at the head of the next court-day’s cause list, unless the Judge directs otherwise.


[21, Law 20 of 1977]

(2) As soon as the cause list for any day is prepared, legibly-written copies of it in the language of the court and the language or languages of the parties shall be placed in some fit and conspicuous place outside the court-house, so that the suitors and all others interested may be enabled readily to be informed of the contents of the same.

CHAPTER XII
OF THE CONSEQUENCES AND CURE (WHEN PERMISSIBLE) OF DEFAULT IN PLEADING OR APPEARING [§ 22, Law 20 of 1977]
Default of defendant.


[23, Law 20 of 1977]

84. If the defendant fails to file his answer on or before the day fixed for the filing of the answer, or on or before the day fixed for the subsequent filing of the answer or having filed his answer, if he fails to appear on the day fixed (or the hearing of the action, and if the court is satisfied that the defendant has been duly served with summons, or has received due notice of the day fixed for the subsequent filing of the answer, or of the day fixed for the hearing of the action, as the case may be, and if, on the occasion of such default of the defendant, the plaintiff appears, then the court shall proceed to hear the case ex pane forthwith, or on such other day as the court may fix.

Procedure in ex parte trial.


[23, Law 20 of 1977]

85.

(1) The plaintiff may place evidence before the court in support of his claim by affidavit, or by oral testimony and move for judgment, and the court, if 1977] satisfied that the plaintiff is entitled to the relief claimed by him, either in its entirety or subject to modification, may enter such judgment in favour of the plaintiff as to it shall seem proper, and enter decree accordingly.

(2) Where the court is of opinion that the entirety of the relief claimed by the plaintiff cannot be granted, the court shall hear the plaintiff before modifying the relief claimed.

(3) Where there are several defendants of whom one or more file answer and another or others of whom fail to file answer, the plaintiff may move for judgment against such of the defendants as may be in default without prejudice to his right to proceed with the action against such of the defendants as may have filed answer. The provisions of this subsection shall apply notwithstanding that the defendants are jointly liable upon a bill of exchange, promissory note or cheque.

(4) The court shall cause a copy of the decree entered under this section to be served on the defendant in the manner prescribed for the service of summons. Such copy of the decree shall bear an endorsement that any application to set aside the decree under subsection (2) of section 86 shall be made to court within fourteen days of such service.

If defendant excuses his default, any order or judgment to be set aside.


[23, Law 20 of 1977]

86.*

(2) Where, within fourteen days of the service of the decree entered against him for default, the defendant with notice to the plaintiff makes application to and thereafter satisfies court, that he had reasonable grounds for such default, the court shall set aside the judgment and decree and permit the defendant to proceed with his defence as from the stage of default upon such terms as to costs or otherwise as to the court shall appear proper.


[3,53 of 1980]

(2A) At any time prior to the entering of judgment against a defendant for default, the court may, if the plaintiff consents, but not otherwise, set aside any order made on the basis of the default of the defendant and permit him to proceed with his defence as from the stage of default upon such terms as to costs or otherwise as to the court shall appear fit.

(3) Every application under this section shall be made by petition supported by affidavit.

Non-appearance of Plaintiff.


[23 Law 20 of 1977]

87.

(1) Where the plaintiff or where both the plaintiff and the defendant make trial, the court shall dismiss the plaintiffs action.

(2) Where an action has been dismissed under this section, the plaintiff shall be precluded from bringing a fresh action in respect of the same cause of action.

(3) The plaintiff may apply within a reasonable time from the date of dismissal, by way of petition supported by affidavit, to have the dismissal set aside, and if on the hearing of such application, of which the defendant shall be given notice, the court is satisfied that there were reasonable grounds for the non-appearance of the plaintiff, the court shall make order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the action as from the stage at which the dismissal for default was made.

No appeal against Judgment for default but order setting aside or refusing to set aside judgment appealable.


[23, Law 20 of 1977]

88.

(1) No appeal shall lie against any judgment entered upon default.

(2) The order setting aside or refusing to set aside the judgment entered upon default shall be accompanied by a judgment adjudicating upon the facts and specifying the grounds upon which it is made, and shall be liable to an appeal to the Court of Appeal.


[4,53 of 1980]

(3) The provisions of sections 761 and 763 shall, mutatis mutandis, apply to and in relation to the execution of a decree entered upon default, where an order refusing to set aside such decree has been made.

Where two or more defendants severally liable.

89. In the case of an action against two or more defendants alleged to be severally liable, where a summons is served upon any of them, the plaintiff may proceed against the person or persons served as if no other defendant were named in the summons. Where it is served upon all of them, the plaintiff may take judgment against one or more of them, where he would be entitled to judgment if the action was against him or them alone. Where judgment is so taken the plaintiff may proceed in the same action against the other defendants.

One of many defendants appearing, no decree for default need be passed against others.

90. In the case of an action where there are more defendants than one, the court shall not be obliged to pass a decree for default against a defendant for failing to appear at a stage of the action, provided that one defendant at least appears at that stage against whom the action must proceed,

CHAPTER XIII
OF MOTIONS
Motions.


[23, Law 20 of 1977.]

91. Every application made to the court in the course of an action, incidental thereto, and not a step in the regular procedure, shall be made by motion by the applicant in person or his counsel or registered attorney, and a memorandum in writing of such motion shall be at the same time delivered to the court.

Postponements, adjournments and extensions of time.


[25, Law 20 of 1977.]

91A.

(1) Where a day is fixed or time appointed for doing any act or taking any proceeding by a party to the action, the court may, from time to time, upon the motion of such party and, if sufficient cause is shown, fix another day or enlarge or abridge the time appointed, upon such terms, if any, as to it may seem proper.

(2) The day may be refixed or the time enlarged although the application for the same is not made until after the expiration of the day or time fixed or appointed.

(3) The court may, for sufficient cause, either on the application of the parties or of its own motion, advance, postpone or adjourn the trial to any other date upon such terms as to costs or otherwise as to it shall seem proper.

(4) Where a date is fixed on or before which an act has to be done by a party to the action or a return has to be made to a commission issued by the court, the case shall be called in open court on such date for the purpose of making an appropriate order in connection therewith or relating thereto.

CHAPTER XIV
OF THE JOURNAL
Journal.

92. With the institution of the action the court shall commence a journal entitled as of the action, in which shall be minuted, as they occur, all the events in the course of the action, i.e., the original application, and every subsequent step, proceeding, and order; each minute shall be signed and dated by the Judge, and the journal so kept shall be the principal record of the action.

CHAPTER XV
OF AMENDMENT
Amendments of pleadings.

93. At any hearing of the action, or any time in the presence of, or after reasonable notice to, all the parties to the action before final judgment, the court shall have full power of amending in its discretion, and upon such terms as to costs and postponement of day for filing answer or replication or for hearing of cause, or otherwise, as it may think fit, all pleadings and processes in the action, by way of addition, or of alteration, or of omission. And the amendments or additions shall be clearly written on the face of the pleading or process affected by the order; or if this cannot conveniently be done, a fair draft of the document as altered shall be appended to the document intended to be amended, and every such amendment or alteration shall be initialed by the Judge.

CHAPTER XVI
OF DISCOVERY, INSPECTION, PRODUCTION, IMPOUNDING, AND RETURN OF DOCUMENTS
Interrogatories.

94.

(1) Any party may at any time before hearing, by leave of the court to be obtained on motion ex parte, deliver through the court interrogatories in writing for the examination of the opposite party, or, where there are more opposite parties than one, any one or more of such parties, with a note at the foot thereof stating which of such interrogatories each of such persons is required to answer:

Provided that no party shall deliver more than one set of interrogatories to the same person without the permission of the court, and that no defendant shall deliver interrogatories for the examination of the plaintiff unless such defendant has previously tendered his answer, and such answer has been received and placed on the record.

(2) For the purposes of this Chapter, ” opposite party “, means a party between whom and the party interrogating an issue has been raised.

Service of interrogatories.

95. Interrogatories delivered under the last section shall be served on the registered attorney (if any) of the party interrogated, or in the manner hereinbefore provided for the service of summons, and the provisions herein contained with regard to service of summons shall, in the latter case, apply, so far as may be practicable.

Cost of unreasonable interrogatories to be borne by party in fault.

96. The court, in adjusting the costs of the action, shall at the instance of any party, inquire, or cause inquiry to be made, into the propriety of delivering such interrogatories; and if it thinks that such interrogatories have been delivered unreasonably, vexatiously, or at improper length, the costs occasioned by the said interrogatories, and the answers thereto, shall be borne by the party in fault.

Interrogatories to company, &c.

97. If any party to an action is a body corporate or a company, whether incorporated or not, or any other body of persons empowered by law to sue or be sued, whether in its own name or in the name of any officer or other person, any opposite party may apply to the court for an order allowing him to deliver interrogatories to any member or officer of such corporation, company, or body, and an order may be made accordingly.

When party may refuse to answer.

98. Any party called upon to answer interrogatories, whether by himself or by any such member or officer, may refuse to answer any interrogatory on the ground that it is scandalous or irrelevant, or is not put bona fide for the purposes of the action, or that the answer will tend to criminate himself, or that the matter inquired after is not sufficiently material at that stage of the action, or on any other like ground.

To be answered by affidavit.

99. Interrogatories shall be answered by affidavit to be filed in court within ten days from the service thereof, or within such further time as the court may allow.

Application for further answer.

100. If any person interrogated omits or refuses to answer or answers insufficiently any interrogatory, the party interrogating may apply to the court for an order requiring him to answer or to answer further, as the case may be. And an order may be made requiring him to answer or to answer further, either by an affidavit or by viva voce examination, as the court may direct:

Provided that the court shall not require an answer to an interrogatory which in its opinion need not have been answered under section 98.

Notice to admit genuineness of Documents.

101.

(1) Either party may, by a notice issued by order of court, to be obtained on motion ex parte within a reasonable time not less than ten days before the hearing, require the other party to admit (saving ail just exceptions to the admissibility of such document in evidence) the genuineness of any document material to the action.

(2) The admission shall also be made in writing, signed by the other party or his registered attorney, and filed in court.

(3) If such notice be not given, no costs of proving such document shall be allowed, unless the court otherwise orders.

(4) If such notice is not complied with within four days after its being served, and the court thinks it reasonable that the admission should have been made, the party refusing shall bear the expense of proving such document, whatever may be the result of the action.

Order for discovery of documents.

102.

(1) The court may, at any time during the pendency therein of any action, order any party to the action to declare by affidavit all the documents which are or have been in his possession or power relating to any matter in question in the action, and any party to the action may, at any time before the hearing, apply to the court for a like order.

(2) Every affidavit made under this section shall specify which, if any, of the documents therein mentioned the declaring objects to produce, together with the grounds of such objection.

Order for order production of documents.

103. The court may, at any time during the pendency therein of any action, the production by any party thereto or such of the documents in his possession or power relating to any matter in question in such action or proceeding as the court thinks right; and the court may deal with such documents when produced in such manner as appears just.

State required to make discovery or give inspection of documents under certain circumstances.


[26, Law 20 of 1977.]

103A.

(1) In any action to which the State is a party, the State may also be required to make discovery or give inspection of documents.

(2) The provisions of subsection (1) shall not prejudice the right of the State to withhold any document on the ground that in the opinion of the Minister in charge of the subject to which the document relates, the public interest would suffer by such disclosure.

Notice to produce documents for inspection.

104.

(1) Any party to an action may, at any time before or at the hearing thereof, by motion ex parte, obtain an order of court for notice to issue to any other party in whose pleadings or affidavits reference is made to any document, to produce such document for the inspection of the party giving such notice, or of his registered attorney, and to permit such party or registered attorney to take copies thereof.

(2) No party failing to comply with such notice shall afterwards be at liberty to put any such document in evidence on his behalf in such action, unless he satisfies the court that such document relates only to his own title, or that he had some other and sufficient cause for not complying with such notice.

Time and place of such production to be specified by party receiving notice.

105. The party to whom such notice is given shall, within ten days from the receipt thereof, deliver through the court to the party giving the same a notice stating a time within three days from such delivery at which the documents, or such of them as he does not object to produce, may be inspected at his registered attorney’s office or some other convenient place, and stating which, if any, of the documents he objects to produce, and on what grounds.

Otherwise, order for inspection to be made by court.

106. If any party served with notice under section 104 omits to give notice under section 105 of the time for inspection, or objects to give inspection, or names an inconvenient place for inspection, the party desiring it may apply to the court for an order of inspection.

Application for order to be supported by affidavit.

107. Except In the case of documents referred to in any pleading or affidavit of the party against whom the application is made, or disclosed in his affidavit of documents, such application shall be founded upon an affidavit showing-

(a) of what documents inspection is sought,

(b) that the party applying is entitled to inspect them, and

(c) that they are in the possession or power of the party against whom the application is made.

Court may reserve question as to discovery or inspection.

108. If the party from whom discovery of any kind or inspection is sought objects to the same or any part thereof, and if the court is satisfied that the right of such discovery or inspection depends on the determination of any issue or question in dispute in the action, or that for any other reason it is desirable that any such issue or question should be determined before deciding upon the right to the discovery or inspection, the court may order that the issue or question be determined first, and reserve the question as to the discovery or inspection.

Consequence of not complying with order under this Chapter.

109.

(1) If any party fails to comply with any order under this Chapter to answer interrogatories, or for discovery, production, or inspection, which has been duly served, he shall, if a plaintiff, be liable to have his action dismissed for want of prosecution, and if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not appeared and answered. And the party interrogating or seeking discovery, production, or inspection may apply to the court for an order to this effect, and the court may make such order accordingly.

(2) Any party failing to comply with any order under this Chapter to answer interrogatories, or for discovery, production, or inspection which has been served personally upon him, shall also be deemed guilty of the offence of contempt of court.

Court may inspect records of other courts.

110.

(1) The court may of its own accord, or in its discretion upon the application of any of the parties to an action, send for, either from its own records or from any other court, the record of any ‘other action or proceeding, and inspect the same.

(2) Every application made under this section shall (unless the court otherwise directs) be supported by an affidavit of the applicant or his registered attorney, showing how the record is material to the action in which the application is made, and that the applicant cannot, without unreasonable delay or expense, obtain a duly authenticated copy of the record or of such portion thereof as the applicant requires, or that the production of- the original is necessary for the purposes of justice.

(3) Nothing in this section shall be deemed to enable the court to use in evidence any document which by the law of evidence in force in Sri Lanka would be inadmissible in the action.

Parties to he ready with all documents at trial.

111. The parties or their registered attorneys shall bring with them and have in readiness at the hearing of the action, to be produced when called for by the court, all the documentary evidence of every description in their possession or power, on which they intend to rely, and which has not already been filed in court, and all documents which the court at any time before such hearing has ordered to be produced.

Document called for and not produced shall not be received afterwards.

112. No documentary evidence in the possession or power of any party which should have been, but has not been, produced in accordance with the requirements of section 111, shall be received at any subsequent stage of the proceedings, unless good cause be shown to the satisfaction of the court for the non- production thereof. And the court on receiving any such evidence shall record its reason for so doing.

Documents to be received by court.

113.

(1) The court shall receive the documents respectively produced by the parties at the hearing, provided that the documents produced by each party be accompanied by an accurate list thereof. Rejection of irrelevant or inadmissible documents.

(2) The court may at any stage of the action reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection.

No documents to be placed on record unless proved.

114.

(1) No document shall be placed on the record unless it has been proved or admitted in accordance with the law of evidence for the time being in force.

Proved documents to be marked and filed

(2) Every document so proved or admitted shall be endorsed with some number or letter sufficient to identity it. the. Judge shall then make an entry on the record to the effect that such document was proved against or admitted by (as the case may be) the person against whom it is used, and shall in such entry refer to such document by such number or letter in such a way as to identify it with the document so proved or admitted. The document shall then be filed as part of the record.

Documents which are not proved to be returned to parties.

(3) All documents produced at the hearing and not so proved or admitted shall be returned to the parties respectively producing them.

Court may order any document to be impounded.

115. Notwithstanding anything contained in section 114, the court may, if it sees sufficient cause, direct any document or book produced before it in any action to be impounded and kept in the custody of an officer of the court for such period and subject to such conditions as the court thinks fit.

when document admitted in evidence may be returned.

116.

(1) When an action has been disposed of, or when the time for preferring an appeal from the decree has elapsed, or if an appeal has been preferred, then after the appeal has been disposed of, any person, whether a party to the action or not, desirous of receiving back any document produced by him in the action, and placed on the record, shall, unless the document is impounded under section 115, be entitled to receive back the same:

Provided that a document may be returned at any time if the person applying for such return deliver to the proper officer a certified copy of such document to be substituted for the original;

Certain documents not to be returned.

And provided further, that no document shall be returned which by force of the decree has become void or useless.

Receipt for returned documents.

(2) On the return of a document which has been admitted in evidence, a receipt shall be given by the party receiving it, in a receipt book to be kept for the purpose.

Provisions as to documents apply to other material objects.

117. The provisions herein contained as to documents shall, so far as may be, apply to all other material objects producible as evidence.

TRANSLATIONS OF DOCUMENTS
Translations of documents.

118. No translation of any document tendered in evidence in any court shall be permitted to be read as a translation of such document, unless the same shall be signed by an interpreter of the Supreme Court, or the Court of Appeal, or by a Government sworn translator, or by a sworn translator or interpreter of some District Court, Family Court or Primary Court.

Who shall be deemed a translator.

119. No person other than an interpreter of the Supreme Court, or the Court of Appeal, or a Government sworn translator, or an interpreter of a District Court, or Family Court or Primary Court, shall be deemed to be a translator of any court unless he shall have received a certificate from the Judge of such court that he is competent to fulfill the duties of a translator, and shall have taken an oath before such Judge faithfully to perform the duties of his office.

Fees of translators.

120. No such translator as aforesaid shall be entitled to have or recover in respect of fees for any translation any sum of money in excess of the following rates, namely,:-


[27, Law 20 of 1977.]

For every folio of 120 words .. Rs. 1. 25

For every fractional part of a folio .. Rs. 1 25

CHAPTER XVII
OF WITNESSES AND DOCUMENTS [§28, Law 20 of 1977.]
Summonses to witnesses.

121.

(1) The parties may, after the summons has been delivered for service on the defendant, obtain, on application to the court or to such officer as the court appoints in that behalf, before the day fixed for the hearing, summonses to persons whose attendance is required either to give evidence or to produce documents.

Lists of witnesses and documents.


[29, Law 20 of I977.]

(2) Every party to an action shall, not less than fifteen days before the date fixed or the trial of an action, tile or cause to be filed in court after notice to the opposite party- (a) a list of witnesses to be called by such party at the trial, and (b) a list of the documents relied upon by such party and to be produced at the trial,

Payment of witness’s expenses.

122. The party applying for a summons shall, before the summons is granted, and within a period to be fixed by the court, pay into court, or give security for payment of, such a sum of money as appears to the court to be sufficient to defray the traveling and other expenses of the person summoned, in passing to and from the court in which he is required to attend, and for one day’s attendance:

Provided that in the case of a witness residing within four miles of the court at which his attendance is required, no such payment shall be made nor security given;

And provided further that the making of any such payment and the giving of any such security shall in no case be a condition precedent to the issue of a summons, but in every case (except the case of a witness residing within four miles from the court) where summons issues without such payment having been made or security given, the witness shall be informed on the face of the summons that such is the case, and that it is not obligatory on him to attend.

Witness’s expenses to be paid before he gives evidence.

123. The sum so paid into court, or so secured, shall at least be paid or tendered to the person summoned at the time when he is called on to give his evidence, if he demands the same.

Court may order a sufficient sum to be paid.

124. If it appears to the court or to such officer as it appoints in this behalf that the sum paid into court is not sufficient to cover such expenses, the court may direct such further sum to be paid to the person summoned as appears to be necessary on that account; and in case of default in payment, may, by writ issued to the Fiscal, order such sum to be levied by sequestration and sale of the movable property of the party obtaining the summons as is hereinafter provided; or the court may discharge the person summoned without requiring him to give evidence ; or may both order such levy and discharge such person as aforesaid.

Expenses of detention.

125. If it is necessary to detain the person summoned for a longer period than one day, the court may from time to time order the party at whose instance he was summoned to pay into court such sum as is sufficient to defray the expenses of his detention for such further period; and in default of such deposit being made, may, by writ issued to the Fiscal, order such sum to be levied by sequestration and sale of the movable property of the party at whose instance he was summoned ; or the court may discharge the person summoned without requiring him to give evidence; or may both order such levy and discharge such person as aforesaid.

Summons to specify time, place, and purpose of attendance.

126.

(1) Every summons for the attendance of a person to give evidence or produce a document shall specify the time and place at which he is required to attend and also whether his attendance is required for the purpose of giving evidence or to produce a document, or for both purposes; and any particular document which the person summoned is called on to produce shall be described in the summons with reasonable accuracy.

(2) If money has been deposited or security given for his expenses under the provisions of section 122, the summons shall contain a statement to that effect.

Summons to produce document.

127. Any person may be summoned to produce a document without being summoned to give evidence; and any person summoned merely to produce a document shall be deemed to have complied with the summons if he cause such document to be produced, instead of attending personally to produce the same.

Person in court may be required to produce a document.

128. Any person present in court may be required by the court to give evidence, or to produce any document then and there in his actual possession or power.

Service of summons.

129. Every summons to a person to give evidence or produce a document shall be served as nearly as may be in the manner hereinbefore prescribed for the service of summons on the defendant; and the rules contained in this Ordinance as to proof of service of summons on the defendant shall apply in case of all summonses served under this section.

Service must afford reasonable time for attendance.

130. The service shall in all cases be made a sufficient time before the time specified in the summons for the attendance of the person summoned, to allow him a reasonable time for preparation and for traveling to the place at which his attendance is required.

Procedure to be followed when summons cannot be served.

131.

(1) If the Fiscal returns to the court that the summons for the attendance of a person, either to give evidence or to produce a document, cannot be served, the court may take evidence touching the non-service.

And upon being satisfied that such evidence or production is material, and that the person for whose attendance the summons has been issued is absconding, or keeping out of the way for the purpose of avoiding the service of summons, the court may in its discretion either issue a warrant for the apprehension of such witness or may issue a proclamation requiring him to attend to give evidence, or produce the document, at a time and place to be named therein; and a copy of such proclamation shall be affixed on the outer door of the house in which he ordinarily resides.

Proclaimed Witness how dealt with.

(2) If he does not attend at the time and place named in such proclamation, the court may in its discretion, at the instance of the party on whose application the summons was issued make an order for the sequestration of the property of the person whose attendance is required, to such amount as the court thinks fit, not exceeding the amount of the costs of sequestration and of the fine which may be imposed under section 133.

If witness appears sequestration may be withdrawn.

132. If, on the sequestration of his ‘property, such person appears and satisfies the court that he did not abscond or keep out of the way to avoid service of the. summons, and that he had not notice of the proclamation in time to attend at the time and place named therein, the court shall direct that the property be released from sequestration, and shall make such order as to the costs of the sequestration as it thinks fit.

Procedure when witness fails to appear.

133. If such person does not appear, or appearing, fails to satisfy the court that he did not abscond or keep out of the way to avoid service of the summons, and that he had not notice of the proclamation in time to attend at the time and place named therein, the court may impose upon him such fine, in the case of the Primary Court not exceeding fifty rupees, and in the case of the District Court not exceeding two hundred rupees, as the court thinks fit, having regard to his condition in life and all the circumstances of the case; and may order the property sequestered, or any part thereof, to be sold for the purpose of satisfying all costs incurred in consequence of such sequestration, together with the amount of the said fine, if any:

Provided that if the person whose attendance is required pays into court the costs and the fine as aforesaid, the court shall order the property to be released from sequestration.

Court may summon and examine any person as witness.

134. Subject to the rules of this Ordinance as to attendance and appearance, if the court at any time thinks it necessary to examine any person other than a party to the action, and not named as a witness by a party to the action, the court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession, on a day to be appointed ; and may examine him as a witness, or require him to produce such document.

Person summoned must attend at time and place named in the summons.

135. Subject as last aforesaid, whoever is summoned to appear and give evidence in an action must attend at the time and place named in the summons for that purpose, and whoever is summoned to produce a document must either attend to produce it, or cause it to be produced, at such time and place.

When witness may depart.

136. No person so summoned and attending shall depart unless and until-

(a) he has been examined or has produced the document and the court has risen; or

(b) he has obtained the court’s leave to depart.

Witness may be arrested for non-compliance with summons.

137.

(1) If any person on whom a summons to give evidence or produce a document has been served fails to comply with the summons, or if any person so summoned and attending departs in contravention of section 136, the court may order him to be arrested and brought before the court: Provided that no such order shall be made when the court has reason to believe that the person so failing had a lawful excuse for such failure.

Non-compliance with summons without lawful excuse deemed to be contempt of court.

(2) When any person so brought before the court fails to satisfy it that he had a lawful excuse for not complying with the summons, he shall be deemed to be guilty of the offence of contempt of court, and punishable therefore.

Court may release arrested witness on bail.

138. If any person so apprehended and brought before the court cannot, owing to the absence of the parties or any of them give the evidence or produce the document which he has been summoned to give or produce, the court may require him to give reasonable bail or other security for his appearance at such time and place as it thinks fit, and on such bail or security being given may release him.

Procedure when witness absconds.

139. If any person so failing to comply with a summons absconds or keeps out of the way, so that he cannot be apprehended and brought before the court, the provisions of sections 131, 132, and 133 shall, mutatis mutandis, apply.

Court may pass decree against party refusing to give evidence.

140. If any party to an action being present in court refuses, without lawful excuse, when required by the court, to give evidence, or to produce any document then and there in his actual possession or power, the court may in its discretion either pass a decree against him, or make such other order in relation to the action as the court thinks fit, or may punish him as for a contempt of court.

Rules as to witnesses to apply to a party summoned to give evidence.

141.

(1) Whenever any party to an action is required to give evidence or produce a document, the rules as to witnesses contained in this Ordinance shall apply to him, so far as they are applicable.

(2) Nothing in this Chapter contained shall be deemed in any way to contravene or affect the provisions of the Proof of Public Documents Ordinance except in so far as the same may be hereby expressly repealed or modified.

Privilege from arrest of witness.

142. Any person duly and in good faith summoned or ordered to attend for the purpose of being examined in a case is privileged from arrest in a civil action or special proceeding while going to, remaining at, and returning from the place where he is required to attend.

CHAPTER XVIII
OF ADJOURNMENTS
Adjournments.

143.

(1) The court may, if sufficient cause be shown, at any stage of the action grant time to the parties, or to any of them, and may from time to time adjourn the hearing of the action.

(2) In all such cases the court shall fix a day for the further hearing of the action, and may make such order as it thinks fit with respect to the costs occasioned by the adjournment:

Provided that, when the hearing of evidence has once begun, the hearing of the action shall be continued from day to day until all the witnesses in attendance have been examined, unless the court finds the adjournment of the hearing to be necessary for reasons to be recorded and signed by the Judge.

Non-appearance of a party on the adjourned day.

144. If on any day to which the hearing of the action is adjourned, the parties or any of them fail to appear, the court may proceed to dispose of the action in one of the modes directed in that behalf by Chapter XII, or make such other order as it thinks fit.

Default of party to carry out purpose of adjournment.

145. If any party to an action, to whom time has been granted, fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the action, for which time has been allowed, the court may, notwithstanding such default, proceed to decide the action forthwith.

CHAPTER XIX
OF THE TRIAL
Determining of issues.

146.

(1) On the day fixed for the hearing of the action, or on any other day to which the hearing is adjourned, if the parties are agreed as to the question of fact or of law to be decided between them, they may state the same in the form of an issue, and the court shall proceed to determine the same.

(2) If the parties, however, are not so agreed, the court shall, upon the allegations made in the plaint, or in answer to interrogatories delivered in the action, or upon the contents of documents produced by either party, and after such examination of the parties as may appear necessary, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to record the issues on which the right decision of the case appears to the court to depend.

(3) Nothing in this section requires the court to frame and record issues when the defendant makes no defence.

Trial of issues of law first.

147. When issues both of law and of fact arise in the same action, and the court is of opinion that the case may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the . issues of fact until after the issue of law have been determined.

Adjournment for evidence.

148. If the court is of opinion that the issues cannot be correctly framed without the examination of some person not before the court, or without the inspection of some document not produced in the action, it may adjourn the framing of the issue to a future day to be fixed by the court, and may compel the attendance of such person or the production of such document by summons or other process.

Amendment of Issues.

149. The court may, at any time before passing a decree, amend the issues or frame additional issues on such terms as it thinks fit.

Party having right to begin to state his

150. The party having the right to begin shall state his case, giving the substance of the facts which he proposes to establish by his evidence.

Explanation 1

Rules as to right to begin

The plaintiff has the right to begin unless where the defendant admits the facts alleged by the plaintiff, and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin.

Explanation 2

The case enunciated must reasonably accord with the party’s pleading, i.e., plaint or answer, as the case may be. And no party can be allowed to make at the trial a case materially different from that which he has placed on record, and which his opponent is prepared to meet. And the facts proposed to be established must in the whole amount to so much of the material part of his case as is not admitted in his opponent’s pleadings.

Party having right to begin to produce his evidence.

151. After stating his case in person, or by his registered attorney or counsel, the same party shall produce his evidence, calling his witnesses and by questions eliciting from each of them the relevant and material facts to which such witness can speak of his own observation.

Explanation

The questions should be simple, and so framed as to obtain from the witnesses, as nearly as may be in a chronological order, a narrative of all the facts relevant to the matter in issue between the parties which he has witnessed- i.e., which he has in any manner directly observed or perceived, and no others. And on any disputed point the questions should not be such as to lead, or suggest, the answer; nor such as to induce a witness, other than an expert, to state a conclusion of his reasoning, an inference of fact, or a matter of belief, in the place of describing what he actually observed.

Also, a general request to a witness to tell what he knows, or to state the facts of the case, is, as a rule, not to be permitted, because it gives an opening for a prepared story.

Nothing in this explanation operates to prevent a witness from stating hearsay, or giving any opinion, where the hearsay or opinion is a relevant fact in the case.

Cross-examination.

152. After the examination-in-chief by the party who called the witness, the cross-examination of the same witness, if required, shall in like manner be effected by the opposite side, only that in this case leading questions may be put.

Re-examination.

153. Then shall follow re-examination by the first side if required, for the purpose of enabling the witness to explain such answers given by him on cross-examination as may have left facts imperfectly stated by him, and to add such further facts as may have been suggested and made admissible by the cross-examination

Explanation

During the course of the examination, cross-examination, and re-examination, the court ought not, as a general rule, to interfere, except when necessary for the purpose of causing questions to be put in a clear and proper shape, of checking improper questions and of making the witness give precise answers. At the end of it, however, if it has been reasonably well conducted, the court ought to know fairly the position of the witness with regard to the material facts of the case, and it should then put such questions to the witness as it may consider necessary to possess itself of all the detailed relevant facts to which the witness can speak from personal observation, or which bear upon his trustworthiness.

Tender of documents in evidence.

154.

(1) Every document or writing which a party intends to use as evidence against his opponent must be formally tendered by him in the course of proving his case at the time when its contents or purport are first immediately spoken to by a witness. If it is an original document already filed in the record of some action, or the deposition of a witness made therein, it must previously be procured from that record by means of, and under an order from, the court. If it is a portion of the pleadings, or a decree or order of court made in another action, it shall not generally be removed there from, but a certified copy thereof shall be used in evidence instead. Records of other actions not to be admitted in bulk.

(2) It shall not be competent to the court to admit in evidence the entire body of proceedings and papers of another action indiscriminately. Each of the constituent documents, pleadings, or processes of the former action, which may be required in the pending action, must be dealt with separately as above directed. Documents admitted to be read aloud in court.

(3) The document or writing being admitted in evidence, the court, after marking it with a distinguishing mark or letter by which it should, when necessary, be ever after referred to throughout the trial, shall cause it, or so much of it as the parties may desire, to be read aloud.

Explanation

If the opposing party does not, on the document being tendered in evidence, object to its being received, and if the document is not such as is forbidden by law to be received in evidence, the court should admit it.

If, however, on the document being tendered the opposing party objects to its being admitted in evidence, then commonly two questions arise for the court:-

Firstly, whether the document is authentic- in other words, is what the party tendering it represents it to be; and

Secondly, whether, supposing it to be authentic, it constitutes legally admissible evidence as against the party who is sought to be affected by it.

The latter question in general is matter of argument only, but the first must be supported by such testimony as the party can adduce. If the court is of opinion that the testimony adduced for this purpose, developed and tested by cross-examination, makes out a prima facie case of authenticity and is further of opinion that the authentic document is evidence admissible against the opposing party, then it should admit the document as before.

If, however, the court is satisfied that either of those questions must be answered in the negative, then it should refuse to admit the document.

Whether the document is admitted or not it should be marked as soon as any witness makes a statement with regard to it; and if not earlier marked on this account, it must, at least, be marked when the court decides upon admitting it.

Procedure to be followed before witness is asked to identify document.

155. Before a witness is allowed to, in any way, identify a document, he should generally be made, by proper questioning, to state the grounds of his knowledge with regard to it.

Illustration

If the witness is about to speak to the act, or factum, of signature he should first be made to explain concisely the occurrences which led to his being present on the occasion of the signing; and if he is about to recognize a signature on the strength of his knowledge of the supposed signer’s handwriting, he should first be made to slate the mode in which this knowledge was acquired.

Cross-examination as to knowledge.

156. The questioning for this purpose should be effected by the party who is seeking to prove the document; and the opposing party, if he desires to do so, should be allowed to interpose with cross-examination on this point before the document is shown to the witness.

Court examination as to Knowledge.

157. It is the duty of the court, in the Court to see event of a witness professing to be able to witness thus tested recognize or identify writing, always to take care that his capacity to do so is thus tested, unless the opposite party admits it.

And to decide on his competency.

158. If on the examination effected for this purpose it appears to the court that the witness was not in tact present at the time Of signing, or is not reasonably competent to identify the handwriting, then the court shall not permit him to give his testimony on the matter of the signature.

Signature by a mark how proved.

159.

(1) The signature of a person, which purports or which appears by the evidence to have been written by the pen of another, is not proved until both the fact of the writing and the authority of the writer to write the name on the document as a signature is proved.

(2) Subsection (1) applies to the case where the signature is a mark explained by the name written adjacent thereto.

Proof in the case of an illiterate person.

160. In the case of an illiterate person, who cannot read, it must also be proved that at the time when his name was written on, or his mark put to, the document, he understood the contents of it:

Provided that where the name of such illiterate person shall have been written on, or his mark put to, any document for the purpose merely of attesting the signature of another, it shall not be necessary to prove that he understood the contents of such document, but it shall be sufficient to prove that he was aware of the purpose for which this name was so written or his mark so put, and that the person whose signature he purports to attest was known to him.

Case of documents whose execution need not be proved.

161. When the document purports on the face of it to be so old that proof of the actual execution is not required by law, it is not proved until sufficient evidence has been given to prove both that it comes into court from the proper custody, and that it has continued to be in proper custody throughout the period during which it can be reasonably accounted for.

Copy of absent original how proved.

162. When the document, the admission of which is objected to, is put forward as the copy of an absent original, it is not proved until both such evidence as is sufficient to prove the correctness of the copy, and also such evidence as would be sufficient to prove the original, had it been tendered instead of the copy, has been given.

Note.- The question whether a copy document is admissible in evidence between the parties in the place of the original is quite distinct from the question whether the document (original or copy) is admissible as evidence relevant to the issue under trial.

When rebutting evidence is admissible.

163. When the party beginning has stated his case and adduced his evidence in accordance with the foregoing rules, then the opposing party or parties (if there are more than one, who have distinct cases) shall in person, or by registered attorney or counsel, state his or their case or cases (and in the latter event in succession), and when the case of each opposing party has been so stated each such party shall adduce in order his evidence, oral and documentary, and the same shall be received and dealt with precisely as in the case of the party beginning, who shall then be entitled to reply. But where there are several issues, the burden of proving some of which lies on the other party or parties, the party beginning may at his option either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the opposing party or parties; and in the latter case the party beginning may produce evidence on those issues after the other party or parties has or have produced all his or their evidence, and such other party or parties may then reply specially on the evidence so produced by the party beginning, but the party beginning will in that case be entitled to reply generally on the whole case.

Court may question witness at any time.

164. The court may at any time, whether before or after the examination of a witness by the respective parties or during such examination, put and interpose such questions as it may consider conducive to the attainment of truth and justice. And the answers to such questions shall be made to appear on the face of the record as having been given to the court.

Court may recall Witness.

165. The court may also in its discretion recall any witness, whose testimony has been taken, for further examination or cross-examination, whenever in the course of the trial it thinks it necessary for the ends of justice to do so.

When may court permit departure from above Rules.

166. The court may for grave cause, to be recorded by it at the time, permit a departure from the course of trial prescribed in the foregoing rules.

Evidence of witness to be given orally in open court .

167. The evidence of the witnesses shall be given orally, as above prescribed, in open court in the presence and under the personal direction and superintendence of the Judge.

Witness to be examined on oath, or affirmation.

168. Witnesses professing to be Christians or Jews, who have discretion to understand the nature of an oath, shall be examined upon oath, unless they state that, according to their religious tenets or on other grounds they object to the taking of an oath, in which case they shall be examined on affirmation. Witnesses not professing to be Christians or Jews shall be examined on affirmation. The same rule shall apply to affidavits. And except when hereinafter otherwise expressly provided, the oath or affirmation shall be administered in open court.

Evidence of witness how taken down.


[30,Law 20 of 1977.]

169. The evidence of each witness shall be taken down in writing by the Judge, or in his presence and hearing and under his personal direction and superintendence. The evidence shall be taken down ordinarily in the form of a narrative.

Any particular question and answer may be taken down.

170. The court may of its own motion or on the application of any party take down or cause to be taken down any particular question and answer, or any objection to any question, if there appear to the court any special reason for so doing.

The objection to question which is allowed and the decision of court thereon may be taken down.

171. If any question put to a witness be objected to, and the court allows the same to be put, the Judge may in his discretion take down in writing the question, the answer, the objection, and the name of the party making it, together with the decision of the court thereon.

The objection to question disallowed and the decision of court thereon to be taken down.

172. If on objection made the court refuses to allow the question to be put, the Judge shall, on the request of the questioner, take down in writing the question, the objection, and the name of the party making it, together with the decision of the court thereon.

Court may record remarks on demeanour of witness.

173. The court may record such remarks as it thinks material respecting the demeanour of any witness while under examination.

Witnesses may be kept out of court.

174. The witnesses on either side or on both or all sides shall, on motion of any of the parties, be kept out of court and of hearing, except the witness immediately under examination; nor shall any witness, who shall remain in court or within hearing after order made to that effect, be permitted to give evidence, unless in the case of a witness called to prove some fact which has incidentally become essential in the course of the trial, and the necessity of which could not reasonably have been anticipated. And every witness who has been examined shall be kept separate from, and shall be allowed no communication with, those who still remain to be examined :

Provided that it shall be lawful for the court in its discretion to allow any witness to be examined, if it shall think such examination conducive to the attainment of truth or justice, notwithstanding that such witness shall have remained in court or within hearing contrary to such order aforesaid.

No witness to be called or document to be produced unless included in list of witnesses or documents.

175.

(1) No witness shall be called on behalf of any party unless such witness shall have been included in the list of witnesses previously filed in court by such party as provided by section 121:

Provided, however, that the court may in its discretion, if special circumstances appear to it to render such a course advisable in the interests of justice, permit a witness to be examined, although such witness may not have been included in such list aforesaid,

Provided also that any party to an action may be called as a witness without his name having been included in any such list.


[31,Law20 of 1977]

(2) A document which is required to be included in the list of documents filed in court by a party as provided by section 121 and which is not so included shall not, without the leave of the court, be received in evidence at the trial of the action :

Provided that nothing in this subsection shall apply to documents produced for cross examination of the witnesses of the opposite party or handed over to a witness merely to refresh his memory.

Court may forbid indecent or scandalous questions.

176. The court may forbid any questions or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the court, unless they relate to facts in issue or to matters necessary to be known in order to determine whether or not the fact in issue existed.

Court shall forbid insulting questions.

177. The court shall forbid any question which appears to it to be intended to insult or annoy, or which, though proper in itself, appears to the court needlessly offensive in form.

Evidence de been esse.

178.

(1) If a witness is about to leave the jurisdiction of the court, or if other sufficient cause is shown to the satisfaction of the court why his evidence should be taken immediately, the court may upon the application of either party or of the witness, at any time after the institution of the action and before trial, take the evidence of such witness in manner hereinbefore provided.

(2) Where such evidence is not taken forthwith, and in the presence of the parties, such notice as the court thinks sufficient of the day fixed for the examination shall be given to the parties.

(3) The evidence so taken may be read at any hearing of the action, provided that the witness cannot then be produced.

Evidence taken on affidavit or on commission.

179. The court may at any time, for sufficient reason, order that any particular factor facts may be proved by affidavit, or by depositions taken on commission, instead of by the testimony of witnesses given viva voce before it, or that the affidavit, or deposition taken on commission, of any witness may be read at the hearing of the action on such conditions as the court shall think reasonable ;

Provided that when it appears to the court that either party bona fide desires the production of a witness before the court for cross-examination viva voce, and that such witness can be so produced, an order shall not be made authorizing the evidence of such witness to be given otherwise than viva voce.

Court may examine witness viva voce notwithstanding affidavit or commission.

180. In the event of an order having been made for the proof of facts by affidavit, or by deposition taken on commission, the court may, nevertheless, at the instance of either party order the attendance of the declarant or deponent at the hearing of the action for viva voce cross-examination, if he is in Sri Lanka and can be produced.

What statements may affidavit contain.

181. Affidavits shall be confined to the statement of such facts as the declarant is able of his own knowledge and observation to testify to, except on interlocutory applications in which statement of his belief may be admitted, provided that reasonable grounds for such belief be set forth in the affidavit.

Petitions cannot be converted to affidavits.

182. A petition stating facts of observation and belief is not converted into an affidavit by the addition of a verifying clause, an affirmation or oath, to the effect that the statements in the petition are true.

Who may administer oaths.

183. In the case of any affidavit under this Chapter –

(a) any court, or Magistrate, or Justice of the Peace; or

(b) any officer whom the Minister in charge of the subject of Justice may appoint for the purpose (and who shall be styled ” Commissioner for Oaths “) may administer the oath to the declarant.

CHAPTER XX
JUDGMENT AND DECREE
Judgment when pronounced.

184.

(1) The court, upon the evidence which has been duly taken or upon the facts admitted in the pleadings or otherwise, and after the parties have been heard either in person or by their respective counsel or registered attorneys (or recognized agents), shall, after consultation with the assessors (if any), pronounce judgment in open court, either at once or on some future day, of which notice shall be given to the parties or their registered attorneys at the termination of the trial.

(2) On the day so fixed, if the court is not prepared to give its judgment, a yet future day may be appointed and announced for the purpose.

Judge may pronounce judgment written by predecessor.

185. A Judge may pronounce a judgment written by his predecessor, but not pronounced,

Judgment to be in writing and to be dated and signed in open court.


[32, Law 20 of 1977.]

186. The judgment shall be in writing and shall be dated and signed by the Judge in open court at the time of pronouncing it.

Validation in certain circumstances of judgments pronounced by successors in office of Judges.


[2, 3 of I960.]

186A. Where a Judge pronounces a judgment written by his predecessor but not pronounced as provided in section 185, such judgment shall, if such predecessor was a judicial officer within the meaning of Article 114(6) of the Constitution at the time such judgment was written, not be deemed to be invalid by reason only of the fact that such predecessor had no jurisdiction to write such judgment.

Requisites of Judgment.

187. The j judgment shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision; and the opinions of the assessors (if any) shall be prefixed to the j judgment and signed by such assessors respectively.

Decree.

188. As soon as may be after the judgment is pronounced, a formal decree bearing the same date as the judgment shall be drawn up by the court in the form No. 41 in the First Schedule or to the like effect, specifying in precise words the order which is made by the judgment in regard to the relief granted or other determination of the action. The decree shall also state by what parties and in what proportions costs are to be paid, and in cases in the Primary Courts shall state the amount of such cost. The decree shall be signed by the Judge.

Amendment of Judgments, decrees and orders.

189.

(1) The court may at any time, either on its own motion or on that of any of the parties, correct any clerical or arithmetical mistake in any judgment or order or any error arising therein from any accidental slip or omission, or may make any amendment which-is necessary to bring a decree into conformity with the judgment.

(2) Reasonable notice of any proposed amendment under this section shall in all cases be given to the parties or their registered attorneys.

Requisites of decree relating to immovable property.


[33, Law 20 of 1977-]

190. Where the decree relates to immovable property the property affected thereby shall be described therein by the boundaries and in such other manner by reference to surveys or otherwise as may secure, as far as possible, correctness of identification ; and the description shall be in such form as to enable such decree to be registered under the Registration of Documents Ordinance.

Requisites of decree relating to movable property.

191. When the action is for movable property, if the decree be for the delivery of such property, it shall also state the amount of money to be paid as an alternative, if delivery cannot be had.

At what rate may interest on money be decreed.


[5, 53 of 1980.]

192.

(1) When the action is for a sum of money due to the plaintiff, the court may, in the decree order interest according to the rate agreed on between the parties by the instrument sued on, or in the absence of any such agreement at the rate of twelve per centum per annum to be paid on the principal sum adjudged from the date of the action to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the action, with further interest at such rate on the aggregate sum so adjudged, from the date of the decree to the date of payment, or to such earlier date as the court thinks fit.

(2) When such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the court shall be deemed to have refused such interest, and a separate action therefore shall not lie.

When may court decree specific performance.

193. When the action is for damages for breach of contract, if it appear that the defendant is able to perform the contract, the court, with the consent of the plaintiff, may decree the specific performance of the contract within a time to be fixed by the court, and in such case shall award an amount of damages to be paid as an alternative if the contract is not performed.

When may court decree payment by instalments.

194. In all decrees for the payment of money, except money due on mortgage of movable or immovable property, the court may order that the amount decreed to be due shall be paid by instalments, with or without interest, and the court may in its discretion impose such terms as it may think fit as to giving security for the payments so to be made:

Provided always that on failure to pay the first or any other instalment, the whole amount or any balance then due shall on such failure become immediately payable;

Provided also, that if the party ordered to pay by instalments shall appeal against the decree, and the appeal shall be decided against him, his right to pay by instalments shall cease, and the whole amount shall be immediately payable, unless the Court of Appeal or the Supreme Court, as the case may be, give express direction to the contrary;

Provided also, that no appeal shall lie against the refusal of the court to make an order for payment by instalments.

Decree when set-off or claim in reconvention is allowed.

195. If the defendant shall have been allowed to set off any demand against the claim of the plaintiff, the decree shall state what amount is due to the plaintiff and what amount (if any) is due to the defendant, and the mandatory part of the decree shall be for the recovery of any balance which shall on that statement appear to be due to either party. The decree of the court with respect to anything awarded to the defendant on any matter on which the defendant obtains judgment by set-off or in reconvention, shall be to the same effect, and be subject to the same rules, as if such thing had been claimed by the defendant in a separate action against the plaintiff.

Decree when claim in respect of mesne profits from date of action is allowed.


[6, 53 of 1980.]

196. When the action is for the recovery of the possession of immovable property, yielding rent or other profit, the court may, whenever the prayer of the plaint asks for damages in respect of mesne profits or rent, provide in the decree for the payment of money in lieu of mesne profits or rent in respect of such property from the date of the institution of the action until the delivery of possession to the party in whose favour the decree is made, with interest thereon at such rate not exceeding twelve per centum as the court thinks fit.

Explanation

” Mesne profits ” of property mean those profits which the person in wrongful possession of such property actually received, or might, with ordinary diligence, have received therefrom.

Mesne profits prior to date of action.

197. When the action is for the recovery of possession of immovable property and for mesne profits which have accrued thereon during a period prior to the institution of the action, the court may either determine the amount and make an order for the payment thereof additional to and embodied in the decree itself, or may pass a decree for the property and reserve the inquiry into the amount of mesne profits to be entered upon after the execution of the decree for the property, as may appear most convenient.

Interlocutory order for accounts.

198. When the action is for an account of any property and for its due administration under the decree of the court, the court, before making the final decree between the parties, shall order such accounts and inquiries to be taken and made, and give such other directions, as it thinks fit.

Administration by. the court.

199. In the administration by the court of the property of any person who dies after this Ordinance comes into force, if such property proves to be insufficient for the payment in full of his debts and liabilities, the same rules shall be observed as to the* respective rights of secured and unsecured creditors, and as to debts and liabilities provable, and as to the valuation of annuities and future and contingent liabilities respectively as may be in force for the time being with respect to the estates of persons adjudged insolvent. And all persons who in any such case would be entitled to be paid out of such property may come in under the decree for its administration and make such claims against the same as they may respectively be entitled to by virtue of this Ordinance.

Decree in action for preemption &c.

200. When the action is to enforce a right of pre-emption in respect of a particular sale of property, and the court finds for the plaintiff, if the amount of purchase money has not been paid into court, the decree shall specify a day on or before which it shall be so paid, and shall declare that on payment of such purchase money, together with the costs (if any) decreed against him, the plaintiff shall obtain possession of the property, but that if such money and costs are not so paid on or before such day or any extension thereof which shall have been allowed for good cause shown, the action shall stand dismissed with costs.

Interlocutory order in action for dissolution of partnership

202*. When the action is for the dissolution of partnership, the court before making its decree may pass an order fixing the day on which the partnership shall stand dissolved, and directing such accounts to be taken and other acts to be done as it thinks fit.

Suit for account between principal and agent.

203. When the action is for an account of pecuniary transactions between principal and agent, and in all other actions not hereinbefore provided for, where it is necessary in order to ascertain the amount of money due to or from any party that an account should be taken, the court shall before making its decree pass an order directing such account to be taken as it thinks fit.

Decree or order postponing hearing.

204. When a decree or order made at the hearing of the action is such as to have the effect of postponing the further hearing and the final determination of the action, as for instance a decree for the taking of accounts, or an order for the issue of a commission to take evidence, or of a commission to divide by metes and bounds, it shall specify the time at which the further hearing of the action shall be proceeded with.

Any person entitled to certified copies of decree and judgment.

205. Upon being paid such fee as the court shall from time to time determine, the Registrar of the court shall at all times furnish to any person applying for the same, and supplying the necessary stamp, copies of the proceedings in any action, or any party thereof, or upon such application and production of such stamp shall examine and certify to the correctness of any such copies made by such person.

Decree or copy to be primary evidence of decision.

206. The decree or such certified copy thereof shall constitute the sole primary evidence of the decision or order passed by the court.

Decrees must be decisive, and must not direct non-suit.

207. All decrees passed by the court shall, subject to appeal, when an appeal is allowed, be final between the parties; and no plaintiff shall hereafter be non-suited.

Explanation

Every right of property, or to money, or to damages, or to relief of any kind which can be claimed, set up, or put in issue between the parties to an action upon the cause of action for which the action is brought, whether it be actually so claimed, set up, or put in issue or not in the action, becomes, on the passing of the final decree in the action, a res adjudicate, which cannot afterwards be made the subject of action for the same cause between the same parties.

CHAPTER XXI
OF COSTS
Costs.

208. Under the denomination of costs are included the whole of the expenses necessarily incurred by either party on account of the action and in enforcing the decree passed therein, such as the expense of stamps, of summoning the defendants and witnesses, and of other processes, or of procuring copies of documents, fees and charges of counsel and registered attorneys, such just and reasonable charges as appear to have been properly incurred in procuring evidence and the attendance of witnesses, and expenses of commissioners either in taking evidence or in local investigations, or in investigations into accounts; and all of other expenses of procuring and adducing necessary evidence.

Court always to have Power to give or reserve costs.

209. When disposing of any application or action under this Ordinance, whether of regular or of summary procedure, the court may, unless elsewhere in this Ordinance otherwise directed, give to either party the costs of such application or action, or may reserve the consideration of such costs for any future stage of the proceedings; any order for the payment of costs only is a decree for money within the provisions of section 194 as to payment by instalments.

Court shall direct by whom costs to be paid.

210. The decree or order shall direct by whom the costs of each party are to be paid, and whether in whole or in what part or proportion.

Court may apportion costs.

211. The court shall have full power to give and apportion costs of every application and action in any manner it thinks fit, and the fact that the court has no jurisdiction to try the case is no bar to the exercise of such power:

Provided that if the court directs that the costs of any application or action shall not follow the event, the court shall state its reasons in writing.

Set-off costs.

212. The court may direct that the costs of payable to one party by another shall be set off against a sum which is admitted or is found in the action to be due from the former to the latter. But such direction shall not affect the lien upon the amount decreed of any registered attorney in respect of the costs payable to him under the decree.

Court may give interest on costs.


[7, 53 of 1980]

213. The court may give interest on costs at any rate not exceeding twelve per centum per annum, and may direct that costs, with or without interest, be paid out of, or charged upon, the subject-matter of the action.

Costs to be taxed.

214. All bills of costs, whether between party and party or between registered attorney and client, shall be taxed by the Registrar of the court according to the rates specified in the Second Schedule; and if either party is dissatisfied with this taxation, the matter in dispute shall be referred to the court for its decision, and the decision of the court in review of taxation of costs shall (except when it is the decision of the Court of Appeal) be liable to an appeal to the Court of Appeal.

Action for costs by registered attorney.

215. No registered attorney shall commence or maintain any action for the recovery of any fees, charges, or disbursements at law until the expiration of one month or more after he shall have delivered unto the party charged therewith, or left with him at his dwelling house or last known place of abode, a bill of such fees, charges and disbursements subscribed by such registered attorney. And after such delivery or service thereof, either the registered attorney or party charged therewith may obtain an appointment from the taxing officer for the taxation thereof; and if either party shall fail to attend, and the taxing officer is satisfied that such party has received due notice of the appointment, the taxation shall proceed in his absence.

Registered attorney to bear costs of taxation in what case.

216. If more than one-sixth of the amount of any bill of costs is disallowed by the taxing officer, the registered attorney shall bear the expense of taxation.

CHAPTER XXII
OF EXECUTIONS
Classification of decrees.

217. A decree or order of court may command the person against whom it operates-

(A) to pay money;

(B) to deliver movable property;

(C) to yield up possession of immovable property;

(D) to grant, convey, or otherwise pass from himself any right to, or interest in, any property;

(E) to do any act not falling under any one of the foregoing heads ; or it may enjoin that person-

(F) not to do a specified act, or to abstain from specified conduct or behaviour, or it may, without affording any substantive relief or remedy-

(G) declare a right or status.

And the method of procedure to be followed, when necessary, by the person party to the action in whose favour the decree or order is made, hereinafter called the “decree-holder” or “judgment-creditor “, in order to enforce satisfaction or execution of the decree in each case respectively by the person party to the action against whom the decree is made, hereinafter called ” the judgment-debtor “, is that which is next hereinafter specified according to the above distinguishing heads.

(A)
EXECUTION OF DECREE TO PAY MONEY
Power of creditor to seize and sell debtor’s property in satisfaction decree for payment of money.

218. When the decree falls under head (A) and is unsatisfied, the judgment-creditor has the power to seize, and to sell or realize in money by the hands of the Fiscal, except as hereinafter mentioned, all saleable property, movable or immovable, belonging to the judgment-debtor, or over which or the profits of which the judgment-debtor has a disposing power, which he may exercise for his own benefit, and whether the same be held by or in the name of the judgment-debtor or by another person in trust for him or on his behalf;


Provided that the following shall not be liable to such seizure or sale, namely-

Excepted property.

(a) the necessary wearing apparel, beds, and bedding of the judgment- debtor, or of his wife and children;


[35, Law 20 of 1977.]

(b) tools, utensils, and implements of trade or business, and, where the judgment-debtor is an agriculturist, his implements of husbandry and such cattle and seed grain as may in the opinion of the court be necessary to enable him to earn his livelihood as such; and such quantity of paddy as may, in the opinion of the court, be necessary for the purpose of providing for the support of himself and his family until the next harvest;


[35, Law 20 of 1977.]

(c) professional instruments and library necessary for the carrying on of the judgment-debtor’s profession or business to the value of one thousand rupees;

(d) books of accounts ;

(e) mere rights to sue for damages;

(f) any right of personal service ;


[2, 24 of 1961.]

(g) the stipend, the cost of living allowance and the special living allowance of a naval, military, air force, civil or political pensioner of the Government;


[35. Law 20 of 1977.]

(h) so much of the salary and allowances of a state officer as does not in the aggregate exceed five hundred rupees per month ;

(i) the pay and allowances of persons to whom the articles of war apply ;

(j) the wages of labourers and domestic servants;

(k) an expectancy of succession by survivorship or other merely contingent or possible right of interest;


[35, Law 20 of 1977.]

(l) a right to future maintenance and all maintenance, alimony and costs ordered in matrimonial suits or maintenance actions;


[35, Law 20 of 1977.]

(m) so much of the salary or wages and allowances of an employee other than a state officer as does not in the aggregate exceed five hundred rupees per month;


[35, Law 20 of 1977.]

(n) any house which is not mortgaged as security for the payment of the whole or part of the sum referred to in such decree and which is the actual residence of the judgment-debtor at the time of the execution of such decree and has been such residence from the time of the institution of the action in which such decree has been entered together with such extent of land appurtenant thereto as the court may consider necessary for its enjoyment;


[2, 24 of 1961.]

(o) the amount standing to the credit of an employee’s individual account in the Employees’ Provident Fund established under the Employees’ Provident Fund Act, or in any other provident fund established for the benefit of employees in any employment.

Explanation

The particulars mentioned in clauses (g), (h), (i), (j), (m) and (o) are exempt from sequestration or sale, whether before or after they are actually payable.

Examination of judgment-debtor as to debts owing to him.

219.

(1) The party entitled to enforce any decree for the recovery or payment money may apply to the court for an order that the debtor (or, in the case of a him. corporation, that any officer thereof) be orally examined before the court on oath or affirmation, as to whether any and what debts are owing to the debtor, and whether the debtor has any and what other property or means of satisfying the decree; and the court may thereon make an order for the attendance and examination on oath or affirmation of such debtor or of any other person whom it thinks necessary, and for the production by such debtor or person of any books or documents.

(2) If a debtor for whose attendance an order has been made under this section fails to comply with such order, the court may, on its own motion or on the application of the party entitled to enforce the decree, issue a warrant for the arrest of such debtor:

Provided the court may make it a condition of the issue of such warrant that the person applying for it shall deposit such sum as the court may deem reasonable for the subsistence of the debtor from the time of his arrest until he can be brought before the court, and for the purpose of defraying any other expenditure that may be incurred in executing such warrant.

Application need not to be supported by affidavit

220. It shall not be necessary to support any such application by affidavits of the applicant’s belief that any debts are owing to the debtor, or that he has any other property or means of satisfying the decree.

Costs.

221. The costs of any such application and of any proceedings arising there out or incidental thereto shall be in the discretion of the court.

Execution of decree against legal representative of a deceased person.

222.

(1) If the decree is against a party as the legal representative of a deceased person, and is for money to be paid out of the property of the deceased, it may be executed by the attachment and sale of any such property in the hands or under the control of the party against whom the decree is made.

(2) If no such property can be found, and the judgment-debtor fails to satisfy the court that he has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment-debtor to the extent of the property not duly applied by him, in the same manner as if the decree had been against him personally.

(3) An application to execute a decree against the judgment-debtor as provided in subsection (2) shall be made, by petition supported by affidavit of the judgment- creditor setting out the material facts, to which application the judgment-debtor shall be made respondent. The court shall after inquiry, if satisfied that the decree should be executed against the judgment-debtor personally, grant such application.

Seizure and sale to be effected under order of court.

223. For the purpose of effecting the required seizure and sale in any case the Fiscal must be put in motion by application for execution of decree to the court which made the decree sought to be enforced.

Application therefore.

224. The application for execution of the decree shall be in writing, signed by the applicant or his registered attorney, and shall contain the following particulars :-

(a) the number of the action;

(b) the names of the parties;

(c) the date of the decree;

(d) whether any appeal has been preferred from the decree;

(e) whether any, and what, adjustment of the matter in dispute has been made between the parties subsequently to the decree;

(f) whether any, and what previous applications have been made for execution of the decree, and with what result, including the dates and amounts of previous levies, if any;

(g) the amount of the debt or compensation, with the interest, if any, due upon the decree, or other relief granted thereby;

(h) the amount of costs, if any, awarded;

(i) the name of the person against whom the enforcement of the decree is sought;

(j) the mode in which the assistance of the court is required, whether by the delivery of property specifically decreed, by the arrest and imprisonment of the person named in the application, or by the attachment of his property, or otherwise as the nature of the relief sought may require.

Court to satisfy itself as to conformity of application. When application should be refused by the court.

225.

(1) Upon the application for execution of the decree being made, the court shall satisfy itself by reference, if necessary, to the record of the action in which the decree or order sought to be executed was passed, that the application is substantially in conformity with the foregoing directions, and that the applicant is entitled to obtain execution of the decree or order which is the subject of the application. If the court is not satisfied in these respects it shall refuse to entertain the application, unless and until amended in the particulars in which the court considers it faulty and defective, and with the view to its being so amended the court shall point out these particulars to the applicant;

Provided that the court may make the requisite amendment then and there, if it is consented to by the applicant and is such as to admit of being conveniently so affected; and

Provided further that every such amendment shall be attested by the signature of the Judge making it.

(2) In the event of the court refusing to entertain the application, the order of refusal, stating the date both of the application and of the order, and the name of the applicant, and specifying the grounds of refusal, shall be endorsed on the application, and the same shall be filed of record in the action.

Writ of execution.

(3) If the court is satisfied in the respects above indicated, it shall direct a writ of execution to issue to the Fiscal in the form No. 43 in the First Schedule.

Duties of Fiscal on receiving writ.

226.

(1) Upon receiving the writ, the Fiscal or his deputy, or other officer, shall within forty-eight hours after delivery to him of the same, if the debtor shall be a person residing within five miles of the office of the Fiscal or Deputy Fiscal-or if residing beyond five miles, within an additional forty-eight hours for every five miles or part thereof-repair to his dwelling house or place of residence and there require him, if present, to pay the amount of the writ.

(2) If by reason of the debtor’s absence no demand for the payment is made, or, in the event of any such demand, when made not being complied with, the Fiscal shall forthwith proceed to seize and sell, or otherwise realize in money, such unclaimed property of the judgment-debtor as may be pointed out and surrendered to him for the purpose by the judgment-debtor, or in default thereof such property of the Judgment-debtor as may be pointed out by the judgment-creditor, or such property as is specified in the writ according to the rules next hereinafter contained:

Provided that when the debtor is out of Sri Lanka it shall not be necessary to require him to pay the amount of the writ before the execution is carried into effect.

Mode of Seizure
Seizure of movable property in possession of debtor to be manual. Disposal of property seized until sale.

227. If the property sought to be seized and sold, or otherwise realized in satisfaction of the decree to be executed is movable property in the possession of the judgment-debtor, other than the property mentioned in the first proviso to section 218, the seizure shall be manual. The Fiscal, Deputy Fiscal, or other officer may at his discretion permit the owner or possessor of the property or the writ-holder to take charge of the property until the time of sale, on giving security to the satisfaction of such officer that he will in the meantime safely and securely keep the same; or such officer may upon the necessary expenses therefore being advanced or secured to him by the debtor or the writ-holder, keep the property in his own custody or in the custody of one of his subordinates, or cause the same to be removed to some fit place of security. If such security is not given or such expenses are not advanced or secured, the Fiscal, Deputy Fiscal, or other officer shall make a special return thereof to the court, and shall not be responsible for the due custody of the property so seized. The expenses of keeping the property in such custody or of removing the same when certified by the Fiscal shall, if not paid by the debtor, be a first charge on the proceeds of the property seized or sequestered, provided that the court may, if it thinks fit, reduce the amount of expenses so certified as aforesaid: Provided that when the property seized is Proviso as to subject to speedy and natural decay, or perishable property. when the expense of keeping it in custody will exceed its value, the Fiscal may sell it at once. The Fiscal, Deputy Fiscal, or other officer may at his discretion permit the owner or possessor of the property or the writ-holder to take charge of the property until the time of sale, on giving security to the satisfaction of such officer that he will in the meantime safely and securely keep the same; or such officer may upon the necessary expenses therefore being advanced or secured to him by the debtor or the writ-holder, keep the property in his own custody or in the custody of one of his subordinates, or cause the same to be removed to some fit place of security. If such security is not given or such expenses are not advanced or secured, the Fiscal, Deputy Fiscal, or other officer shall make a special return thereof to the court, and shall not be responsible for the due custody of the property so seized. The expenses of keeping the property in such custody or of removing the same when certified by the Fiscal shall, if not paid by the debtor, be a first charge on the proceeds of the property seized or sequestered, provided that the court may, if it thinks fit, reduce the amount of expenses so certified as aforesaid:

Provided that when the property seized is Proviso as to subject to speedy and natural decay, or perishable property. when the expense of keeping it in custody will exceed its value, the Fiscal may sell it at once.

As to attachment of negotiable instrument.

228. If the property is a negotiable instrument not deposited in a court, nor in the custody of a public officer, the instrument shall be seized and brought into court and held subject to the further orders of the court.

Seizure of debts, shares, and movable property not in possession of debtor and not deposited in court to be by written notice of prohibition.

229. In the case of-

(i) a debt not secured by a negotiable instrument,

(ii) a share in the capital of any public company or corporation,

(iii) other movable property not in the possession of the judgment-debtor, except property deposited in, or in the custody of, any court, or in the custody of a public officer,

the sequestration or seizure shall be made by a written notice signed by the Fiscal, prohibiting-

(a) in the case of the debt, the creditor from recovering the debt, and the debtor from making payment thereof until the further order of the court from which the writ of execution authorizing the seizure issues;

(b) in the case of the share, the person in whose name the share may be standing from transferring the same or receiving any dividend thereon ;

(c) in the case of the other movable property except as aforesaid, the person in possession of the same from giving it over to the judgment-debtor.

A copy of such order shall be affixed to some conspicuous part of the court-house, and another copy of the same shall be delivered or sent by post, in the case of the debt to the debtor, in the case of the share to the proper officer of the company or corporation, and in the case of the other movable property (except as aforesaid) to the person in possession of the same.

Judgment-debtor’s debtor may be summoned, or execution may issue against him.

230.

(1) A debtor prohibited under clause (a) of last preceding section may, upon the application of the judgment-creditor, be summoned by the court to show cause, on a day fixed in the summons, why he should not pay to the judgment-creditor the debt due from him to the judgment-debtor, or so much thereof as may be sufficient to satisfy the judgment. If such debtor does not dispute the debt due or claimed to be due from him, and fails within such time as may be allowed him by the court to pay into court the amount due from him to the judgment-debtor, or an amount equal to the judgment, or if he does not appear upon summons, then the court may order execution to issue, and it may issue accordingly, to levy the amount due from such debtor, or so much thereof as may be sufficient to satisfy the judgment.

(2) The costs of any application and of any proceedings arising from, or incidental to, any such application as aforesaid shall be in the discretion of the court.

Payment by him to be discharge as against judgment- debtor.

231. Payment made by, or execution levied upon, such debtor in manner him to be a provided in the last preceding section shall against be a valid discharge to him as against the judgment-debtor to the amount paid or levied, although such proceeding may be set aside or the judgment in respect of which any payment or levy is made may be reversed.

Seizure of property deposited in any court. Question of priority.

232.

(1) If the property is deposited in, or in the custody of, any court or public officer, the seizure shall be made by a notice to such court or officer, requesting that such property and any interest or dividend becoming payable thereon may be held subject to the further orders of the court from which the writ of execution authorizing the seizure issues :

Provided that, if such property is deposited in, or is in the custody of, a court, title or any question of title or priority arising between the judgment-creditor and any other person, not being the judgment-debtor, claiming to be interested in such property by virtue of any assignment, attachment, or otherwise, shall be determined by such court.

(2) Upon such notice being received by any court a memorandum thereof shall be made in the journal of the action in which or to the credit of any party to which, the money is deposited, or is in the custody of the court.

Explanation

Money in an appropriate bank account to the credit of an action, or to the credit of any party to an action, is within the meaning of this section, money deposited in, or in the custody of, the court in which the action is.

Notice by Fiscal.

233. The notice necessary to effect seizure under section 229 and 232 may be signed and served by the Fiscal under the authority of the writ of execution alone.

Seizure of a money decree in favour of judgment-debtor.

234.

(1) If the property is a decree for money passed in favour of the judgment- debtor by the court which passed the decree sought to be executed, the seizure shall be made by an order of the court directing the proceeds of the former decree to be applied in satisfaction of the latter decree.

(2) If the property is a decree for money passed by any other court, the seizure shall be made by a notice in writing to such court signed by the Registrar of the court which passed the decree sought to be executed, requesting the former court to stay the execution of its decree until such notice is cancelled by the court from which it was sent. The court receiving such notice shall stay execution accordingly, unless and until-

(a) the court which passed the decree sought to be executed cancels the notice, or

(b) the holder of the decree sought to be executed applies to the court receiving such notice to execute its own decree. On receiving such application the court shall proceed to execute the decree and apply the proceeds in satisfaction of the decree sought to be executed.

Seizure of any other decrees.

235. In the case of all other decrees the seizure shall be made by an order of the court which passed the decree sought to be executed to the holder of the decree sought to be seized, prohibiting him from transferring or charging the same in any way, and when such decree has been passed in any other court, also by sending to such court a like notice in writing to abstain from executing the decree sought to be seized until such notice is cancelled by the court from which it was sent. Every court receiving such notice shall give effect to the same until it is so cancelled.

Alienation by debtor subsequent to seizure void as against claims enforceable under seizure.

236. When a seizure of any negotiable instrument, debt, share, money, decree or any other movable property has been effected and made known in manner hereinbefore provided, any private alienation of the property seized, whether by sale, gift, mortgage, or otherwise, and any payment of the debt or dividend or delivery of the share to the judgment-debtor during the continuance of the seizure, shall be void as against all claims enforceable under the seizure.

Seizure of immovable by written notice of prohibition.

237.

(1) If the property is immovable, the seizure shall be made by a notice signed by the Fiscal prohibiting the judgment- debtor from transferring or charging the property in any way, and all persons from receiving the same from him by purchase, gift, or otherwise.

Publication of such notice .

(2) The notice shall specify the parties to the action, the judgment-debtor, the dates of judgment and seizure, and the name, situation, and boundaries of the land seized, and shall be proclaimed at some place on or adjacent to such property by beat of tom or other customary mode, and a copy of the notice shall be affixed by the Fiscal to a conspicuous part of the property and of the court-house and of the Fiscals office. But in no case shall the Fiscal enter upon actual possession of the immovable property so seized, or receive the rents and profits thereof, unless expressly directed so to do by order made under Chapter L.

Effect of publication of seizure and registration of notice of seizure.

238. When a seizure of immovable property is effected under a writ of execution and made known as provided by section 237 and notice of the seizure is registered before the 1st day of January, 1928, in the book formerly kept under section 237 or is registered on or after the 1st day of January, 1928, under the Registration of Documents Ordinance, any sale, conveyance, mortgage, lease, or disposition of the property seized, made after the seizure and registration of the notice of seizure and while such registration remains in force is void as against a purchaser from the Fiscal selling under the writ of execution and as against all persons deriving title under or through the purchaser.

When seizure must be ordered to be withdrawn.

239. If the amount decreed with costs and all charges and expenses resulting from the seizure of any property is paid into court, or if satisfaction of the decree is otherwise made through the court, or if the decree is set aside or reversed, an order shall be issued on the application of any person interested in the property, for the withdrawal of the seizure.

List to be made of property seized.

240. As soon as any property shall be seized by the Fiscal, Deputy Fiscal, or other officer, a list of such property shall forthwith be made and signed by himself or the person seizing the same, and shall be given to the judgment-debtor and to any person claiming to be in possession of the property seized, and copies thereof shall be also deposited in the Fiscals office and annexed to the return to the writ.

Claims to Property seized
Claims to property seized to be reported by Fiscal and investigated by court.

241. In the event of any claim being preferred to, or objection offered against the seizure or sale of, any immovable or movable property which may have been seized in execution of a decree or under any order passed before decree, as not liable to be sold, the Fiscal or Deputy Fiscal shall, as soon as the same is preferred or offered, as the case may be, report the same to the court which passed such decree or order; and the court shall thereupon proceed in a summary manner to investigate such claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects, as if he were a party to the action;

Provided always that when any such claim or objection is preferred or offered in the case of any property so seized outside the local limits of the jurisdiction of the court which passed the decree or order under which such seizure is made, such report shall be made to, and such investigation shall thereupon be held by, the court of the district or division within the local limits of which such seizure was made, and the proceedings on such report and investigation with the order thereon shall, at the expiry of the appealable time, if no appeal has been within that time taken therefrom, but if an appeal has been taken, immediately upon the receipt by such court of the judgment or order in appeal, be forwarded by such court to the court which passed the decree or order, and shall be and become part of the record in the action;

Provided, further, that in every such case the court to which such report is made shall be nearer to the place of seizure than, and of co-ordinate jurisdiction with, the court which passed the decree or order.

Claim to be made at earliest opportunity.

242. The claim or objection shall be made at the earliest opportunity, and if the property to which the claim or objection applies shall have been advertised for sale, the sale may (if it appears to the court necessary) be postponed for the purpose of making the investigation mentioned in section 241:

Provided that no such investigation shall be made if it appears to the court that the making of the claim or objection was designedly and unnecessarily delayed with a view to obstruct the ends of justice.

Claimant to adduce evidence.

243. The claimant or objector must on such investigation adduce evidence to show that at the date of the seizure he had some interest in, or was possessed of, the property seized.

Discretion of court to release the property claimed.

244. If upon the said investigation the court is satisfied that, for the reason stated in the claim or objection such property was not, when seized, in the possession of the judgment-debtor, or of some person in trust for him or in the occupancy of a tenant or other person paying rent to him, or that being in the possession of the judgment-debtor at such time, it was so in his possession, not on his own account or as his own property, but on account of or in trust for some other person, or partly on his own account and partly on account of some other person, the court shall release the property wholly, or to such extent as it thinks fit, from seizure and make such order as to payment of fees and charges already incurred by the Fiscal as it may deem fit.

When may court disallow the claim.

245. If the court is satisfied that the property was, at the time it was seized, in possession of the judgment-debtor as his own property, and not on account of any other person or was in the possession of some other person, in trust for him, or in the occupancy of a tenant or other person paying rent to him, the court shall disallow the claim.

Court may continue seizure subject to mortgaged or lien.

246. If the court is satisfied that the property is subject to a mortgage or lien in favour of some person not in possession, seizure subject and thinks fit to continue the sequestration or seizure, it may do so subject to such mortgage or lien.

Action by party claiming right.

247. The party against whom an order under section 244, 245, or 246 is passed may institute an action within fourteen days from the date of such order to establish the right which he claims to the property in dispute, or to have the said property declared liable to be sold in execution of the decree in his favour ; subject to the result of such action, if any, the order shall be conclusive.

Punishment as well as damages may be awarded for groundless claim.

248. Whenever it shall appear to a competent court, and be so found and declared in any judgment pronounced by it in any action instituted by or against any person claiming any property pointed out or seized in execution, that such claim is altogether groundless, and wilfully preferred only to defeat or delay the execution, every such claimant shall, in addition to his liability to pay costs and damages, be liable to a fine not exceeding fifty rupees, and such fine shall be recovered as a fine imposed by a court in a criminal case.

Seizure of partnership property for debt of partner, other partner may apply for release.

249. When a Fiscal has seized property of a partnership before or after its dissolution, upon a writ of execution against the interest therein of any partner made by virtue of ah execution against his individual property, any other partner or former partner having an interest in the property may, at any time before the sale, apply to the court from which the writ of execution issued, upon an affidavit showing the facts, for an order directing the Fiscal to release the property and to deliver it to the applicant.

Undertaking to be given by applicant.

250. Upon such an application the applicant must give an undertaking, with at least two sureties, approved by the Judge, to the effect that he will account to the purchaser upon the sale to be made by virtue of the execution of the interest of the judgment-debtor in the property seized, in like manner as he would be bound to account to an assignee of such an interest; and that he will pay to the purchaser the balance which may be found due upon the accounting, not exceeding a sum specified in the undertaking, which must be not less than the value of the interest of the judgment-debtor in the property seized by the Fiscal as fixed by the Judge.

Undertaking, to whose benefit it.

251. Where property of a partnership has been released upon an undertaking as prescribed in the last two sections, if the execution by virtue of which the levy was made is set aside or is satisfied without a sale of the interest levied upon, the undertaking ensures to the benefit of each judgment-creditor of the same judgment-debtor then having an execution in the hands of the Fiscal having authority to levy upon that interest, as if it had been given to obtain a release from a seizure made by virtue of such an execution.

Interest of judgment- debtor may be sold.

252. Where property of a partnership has been so released, the interest of the judgment-debtor therein may be sold by the Fiscal, and the purchaser upon the sale acquires all that interest as if he was an assignee thereof.

Of the Sale and Disposition of the Property seized: (I) Of Sales Generally
Coin or currency notes to seize how dealt with.

253. If the property seized is coin or currency notes the Fiscal shall deal with it in the manner hereinafter directed in respect of money received by the Fiscal on the sale of property sold at the execution sale.

How may decree of court, seized be realized.

254. When the property seized is a decree of court the judgment-creditor at whose instance the seizure is made shall be deemed the assignee thereof under assignment as of the date of the seizure, made by the person against whom he is executing the writ of execution, so far as that person’s interest extends, and he may realize the decree in the manner hereinafter provided for the execution of a decree by an assignee thereof.

Procedure in case of other property sized by fiscal.

255. In the case of all other property seized by the Fiscal he shall proceed to the sale thereof in the manner following :-

Notice of sale: I. For movable property.

I.-In all cases of movable property the Fiscal or Deputy Fiscal shall cause notice of sale thereof to be given by beat of tom-tom or in such other manner as to secure publicity thereto, both at the place of sale and also where the seizure shall have been made, and such notice shall not be less than three days and not exceeding fourteen days before the day of sale, unless the time be enlarged by any order of court, and shall specify, as fairly and accurately as under the circumstances is reasonably practicable-

(a) the property to be sold ;

(b) the action in which, and

(c) the place, and

(d) day, and

(e) hour at which the sale is to take place;

(f) the amount of money for the levy of which the writ issued.

II.-For immovable property.


[36, Law 20 of 1977.]

II.-In all cases of immovable property the like notice of sale shall be given as is hereinbefore required in sales of movable property, and the Fiscal, Deputy Fiscal, or other officer shall also cause to be made three copies of the notice of sale in the language of the court, and, where the language of the court is also Tamil, three translations into that language, one of each of which he shall cause to be posted at the court-house whence the execution issued, in some conspicuous part of the town or village in which the land is situate, and on some conspicuous spot on the property for sale, each of which publications shall be made ten days at the least before such sale takes place.

Advertisement where property exceeds five thousand rupees in value.


[37, Law 20 of 1977.]

256. Whenever the property seized under one writ shall exceed the value of five thousand rupees, the Fiscal, Deputy Fiscal or other officer shall, in addition to the notice hereinbefore required, advertise the sale thereof, enumerating briefly the goods for sale, the nature and situation of the land, and the time and place of the sale, in a local daily newspaper or in such other manner as the court may direct having regard to the value of the property and other relevant circumstances; and no such sale shall take place until it shall have been so advertised once at least twenty days prior to the sale. It shall be lawful to the execution-creditor or debtor to require the publication of such sale to be made in any newspaper to be named by him, and all costs and charges attending such advertisements, particulars of which shall be always given by the Fiscal with his return, shall be paid in advance by the party requiring such publication.

Proceedings at the sale.

258*. Every sale shall be held by an officer of the Fiscal, or some other person duly authorized by the Fiscal or Deputy Fiscal by writing under his hand.


When the proceeds do not exceed the sum of seven thousand five hundred rupees, the Fiscal or Deputy Fiscal shall recover a fee of three per centum on the proceeds actually recovered on return thereof made to the court in respect of every sale and resale of movable property, and two per centum on the proceeds of sale of immovable property belonging to the debtor.

When the proceeds, whether of movable or immovable property, exceed that sum, the Fiscal or Deputy Fiscal shall recover a fee of one hundred and fifty rupees and of five rupees for every thousand rupees of the proceeds over and above the said sum of seven thousand five hundred rupees.


And in every case after the seizure of property and publication of sale thereof, in which the sale shall be postponed or stayed at the request or with the concurrence of the party suing out the writ, the Fiscal or Deputy Fiscal shall recover half of the above fees on the estimated value of such property from the party at whose instance the writ shall be stayed, and in default of immediate payment thereof the Fiscal shall certify the amount of such fees to the court whence the execution issued :

Provided, however, that such fee shall never exceed fifty rupees or the actual expenditure already incurred by the Fiscal towards carrying out the sale, whichever sum shall be the larger. The fees recovered under this section shall be brought to account and appropriated in such manner as the Secretary to the Treasury shall from time to time direct.

Court may in certain cases postpone sale.

259.

(1) If at any time prior to the sale of immovable property seized in execution the judgment-debtor can satisfy the court that there is reason to believe that the amount of the decree and of any unsatisfied judgment then in force against him may be raised by mortgage, or lease, or private sale of such property, or some part thereof, or of any other immovable property of the judgment-debtor, the court may on his application postpone the sale of such property for such period as it thinks proper to enable him to raise the amount, and shall make such order as to the payment of fees and charges due to the Fiscal as it may deem fit.

(2) In such case the court shall grant a certificate to the judgment-debtor, authorizing him, within a period to be mentioned therein, and notwithstanding anything contained in section 238, to make the proposed mortgage, lease, or sale;


Provided that all moneys payable under such mortgage, lease, or sale shall be paid into court and not to the judgment-debtor ;


Provided also that no mortgage, lease, or sale under this section shall become absolute until it has been confirmed by the court.

Deposit by purchaser.

260. On every sale of immovable property under this Chapter the person declared to be the purchaser shall pay immediately after such declaration, in every case where the price does not exceed one hundred rupees, the full amount of, but in every other case a deposit of twenty-five per centum on the amount of his purchase money to the officer conducting the sale, and in default of such deposit the property shall forthwith be put up again for sale.

Payment in full.

261. Where the price exceeds one hundred rupees the balance amount of the purchase money shall be paid by the purchaser on or before the thirtieth day after the sale of the property, or if the thirtieth day be a public holiday, then on the first office day after the thirtieth day.

Default in payment, consequence of.

262. In default of payment within the period mentioned in the last preceding section, the deposit, after defraying the expenses of the sale, shall be forfeited to, and shall go in reduction of the claim of, the Judgment-creditor, and the property shall be resold, and the defaulting purchaser shall forfeit all claim to the property and to any part of the sum for which it may subsequently be sold.

Fresh notification on resale.

263. Every resale of immovable property in default of payment of the purchase money within the period allowed for such payment shall be made after the issue of a fresh notification in the manner and for the period hereinbefore prescribed for the sale.

Bid by a co-sharer.

264. When the property sold in execution of a decree is a share of undivided immovable property, and two or more persons, of whom one is a co-sharer, respectively advance the same sum at any bidding at such sale, such bidding shall be deemed to be the bidding of such co-sharer.

Fiscal to satisfy himself as to bona fides of bidder.

265. The Fiscal or other officer conducting any sale of immovable property under this Chapter may, before accepting any bid at such sale, satisfy himself as to the bona fides of the bidder, and his ability to pay down the amount of deposit required ; and in the event of his not being so satisfied may refuse to accept any such bid, and shall continue the sale as if no such bid had been made.

Deficiency on resale to be purchaser on Fiscals certificates.

266. The second sale, taking place in consequence of such non-payment of balance of purchase money, shall be made in the manner hereinbefore prescribed for the first sale, and if the amount of the purchase money for which the property is sold at such second sale shall fall short of the amount for which the first sale was concluded, then the first purchaser and his sureties, if any, shall be held liable to pay the Fiscal the amount of this difference, and the Fiscal on non-payment thereof by such purchaser and his sureties within one week after demand made by him upon them respectively in writing, shall certify the amount of the said difference to the court whence the execution issued. And the like course shall be observed in respect of any subsequent sale rendered necessary by failure in payment of the purchase amount.

On highest bidder not making deposit, next highest may be declared purchaser; difference to be paid by highest bidder on Fiscals certificate.

267. If at the sale of immovable property the highest bidder on being declared the purchaser shall not forthwith pay down the amount of deposit required, and give good and sufficient security to the satisfaction of the Fiscal, Deputy Fiscal, or other officer for the payment of the residue, the next highest bidder may be thereupon declared the purchaser, and required to make such deposit and security as aforesaid ; and in the same manner the other bidders in rotation ; and each person failing to make such deposit and to give security as aforesaid may be held liable to pay the difference between the amount of his offer and the sum finally settled at the sale, and the Fiscal, on non-payment thereof by such persons respectively within one week after demand made by him upon them in writing, shall certify the amount of the said difference in each case to the court whence the execution issued:

Provided,-however, that in case of default of the highest bidder, instead of declaring the next highest bidder purchaser, the officer holding the sale may forthwith put up the property for sale anew, or adjourn the sale, in which latter case the property shall again be advertised as before.

Forfeiture of deposit.

268. If the price for which the property is finally sold at the second or any subsequent sale is not less than that of the first sale, then the money deposited by the purchaser at the first and other sales which preceded the final sale shall be paid to the execution-creditor in satisfaction portent of the judgment; and in the event of such judgment being so satisfied, and any surplus remaining, such surplus shall, after deducting any expenses consequent on the sale, be paid to the judgment-debtor.

Differences realized to augment the purchase money.

269. The differences between the biddings of any person failing to make the deposit and give the security required by section 267 and the sum finally settled at any such sale and between the amount of the final sale and those of previous sales shall, when realized, be paid by the Fiscal into the Government Agent’s office in augmentation of the purchase money of the final sale.

The amount certified by Fiscal to be recovered as by execution of decree. Cost of notice, publication, or proclamation.

270. The amount certified by the Fiscal to be payable to him for half fees under the provisions of section 258 and the amounts of the differences certified by the Fiscal and directed to be reported to the court by sections 266 and 267 shall, in the case of such half fees at the instance of the Fiscal and in the case of such differences respectively at the instance either of the Fiscal, or of the judgment-creditor, or of the judgment-debtor, be recoverable from the persons declared in those sections to be liable to pay the same, in the same way as if the certificate were a decree for money passed by the court to which it is returned against those persons; and the cost (to be fixed by the court) of any notice, publication, or proclamation required under any of the provisions of this Ordinance to be given or made by the Fiscal by beat of tom-tom or in any other manner whatsoever, shall in every instance, where provision for the payment thereof is not otherwise specially made, be prepaid by the person at whose instance or in whose interest the same is required.

No officer conducting sale to bid.

271. No officer having any duty to perform in connection with any sale under this Chapter shall either by himself or another bid for, acquire, or attempt to acquire any interest in any property sold at such sale.

Holder of decree may be or purchase.

272.

(1) A holder of a decree in execution of which property is sold may, with the previous sanction 01 and subject to such terms as to credit being given him by the Fiscal and otherwise as may be imposed by the court, bid for or purchase the property.

And purchase money may be set off against decree.

(2) When a decree-holder purchases, the purchase money and the amount due on the decree may, if the court thinks fit, be set off against one another, and the court in execution of whose decree the sale is made may enter up satisfaction of the decree in whole or in part accordingly.

Place of sale of immovable property.

273. In all cases the sale of immovable property shall be conducted on the spot, unless the court shall otherwise direct, or unless on application in writing to the Fiscal or his deputy the parties shall consent to its being conducted elsewhere.

(2) Of Sales of Movable Property
Sale of a negotiable instrument or a share in any public company .

274. If the property to be sold is a negotiable instrument or a share in any public company or corporation, the court may direct the Fiscal, instead of selling it by public auction, to make the sale of such instrument or share through a broker at the market rate of the day.

Sale of other movable property.

275.

(1) In the case of other movable property, the price shall be paid at the time of sale, and in default of payment the property shall forthwith be again put up for sale.

(2) On payment of the purchase money, the officer holding the sale shall grant a receipt for the same, and the sale shall become absolute.

What may vitiate sale.

276. No irregularity in publishing or conducting the sale of movable property shall vitiate the sale unless substantial damage has been caused to the person impeaching the sale thereby.

Delivery to purchaser.

277. When the property sold is a negotiable instrument or other movable property of which actual seizure has been made, the property shall be delivered to the purchaser.

Delivery where third party is in possession.

278. When the property sold is any movable property to which the judgment- debtor is entitled, subject to a right of possession of some other person, the delivery thereof to the purchaser shall be made by giving notice to the person in possession prohibiting him from delivering possession of the property to any person except the purchaser.

Delivery of unsecured debt or share.

279. When the property sold is a debt not secured by a negotiable instrument, or is a share in any public company or corporation, the assignment thereof shall be made by a certificate of sale in favour of the purchaser signed by the Fiscal, who shall forthwith, by a written notice, prohibit the creditor from receiving the debt or any interest thereon, and the debtor from making payment thereof to any person except the purchaser, or the person in whose name the share may be standing from making any transfer of the share to any person except the purchaser, or receiving payment of any dividend or interest thereon, and the manager, secretary, or other proper officer of the company from permitting any such transfer or making any such payment to any person except the purchaser.

Endorsement of negotiable instrument or share certificate.

280.

(1) If the endorsement or conveyance of the party in whose name a negotiable instrument or a share in any public company or corporation is standing is required to transfer such instrument or share, the Judge may endorse the instrument or the certificate of the share, or may execute such other document as may be necessary.

The endorsement or execution shall be in the following form or to the like effect:- ” A. B. by C. D.. Judge of the District Court of (or as the case may be), in an action by E. F. against A. B.”

(2) Until the transfer of such instrument or share the court may, by order, appoint some person to receive any interest or dividend due thereon, and to sign a receipt for the same; and any endorsement made, or document executed, or receipt signed as aforesaid, shall be as valid and effectual for all purposes as if the same had been made, or executed, or signed by the party himself.

In case of other movable property court may make vesting order.

281. In the case of any movable property not hereinbefore provided for, the court may make an order and execute such document as may be necessary vesting such property in the purchaser, or as he may direct; and such property shall vest accordingly.

(3) Of Sales of Immovable Property
Sale not absolute until after thirty days and confirmation by court.

282.

(1) The Fiscal shall report to the court every sale of immovable property made by him or under his direction within ten days after the same shall have been made. And no sale of immovable property; shall become absolute until thirty days have elapsed subsequent to the receipt of such report, and until such sale has been confirmed by the court.

and may be set aside for material irregularity.

(2) The decree-holder, or any person whose immovable property has been sold under this Chapter, or any person establishing to the satisfaction of the court an interest in such property, may apply by petition to the court to set aside the sale on the ground of a material irregularity in publishing or conducting it; but no sale shall be set aside on the ground of irregularity unless the applicant proves to the satisfaction of the court that he has sustained substantial injury by reason of such irregularity, and unless the grounds of the irregularity shall have been notified to the court within thirty days of the receipt of the Fiscals report.

(3) In every such application the purchaser shall be made respondent to the petition.

Order confirming the sale.

283.

(1) If no such application as is mentioned in the last preceding section is made within the thirty days, or if such application is made and the objection disallowed, the court shall at any time after the expiration of the thirty days, on the application of the decree-holder or of the purchaser, pass an order confirming the sale as regards the parties to the suit and the purchaser:

Provided that no order confirming the sale shall be made if it appear to the court that the judgment-debt was satisfied at the time that the writ of execution issued.

Order setting aside the sale.

(2) If such application is made, and if the objection is allowed, the court shall pass an order setting aside the sale.

When purchaser may apply to set aside sale.

284. The purchaser at any such sale may apply to the court by petition on summary procedure to set aside the sale, on the ground that the person whose property purported to be sold had no saleable interest therein, and the court may, on such application, make such order as it thinks fit:

Provided that both the judgment-debtor and the decree-holder are made respondents to the petition.

When purchaser may get back his purchase money.

285.

(1) When a sale of immovable property is set aside under sections 282, 283, or 284, when it is found that the judgment- debtor had no saleable interest in the property which purported to be sold, and the purchaser is for that reason deprived of it, the purchaser shall be entitled to receive back his purchase money from any person to whom the purchase money has been paid.

(2) An order for the repayment of the said purchase money may be made by the court on any application under sections 282, 283 or 284, provided that the person against whom the order is directed is party thereto, and such order may be enforced against such person under the rules provided by this Ordinance for the execution of a decree for money.

Conveyance to purchaser. Conveyance to contain sufficient map of the premises.

286. If the court shall have confirmed the sale and the purchaser shall have paid the full amount of the purchase money according to the conditions of sale, and shall have supplied the Fiscal or Deputy Fiscal with stamps of the proper amount required by law for the conveyance of the land sold to him (which stamps he shall be bound to supply when he pays the purchase money in full), and if the sale was not effected in execution of a decree specifically directing the sale, then the Fiscal or Deputy Fiscal shall forthwith make out and execute a conveyance in duplicate of the property according to the form No. 56 in the First Schedule, or such other form, or expressed in such terms, as the court may deem expedient, which conveyance shall be binding and of force, though not executed before a notary public.

The Fiscal or Deputy Fiscal shall deliver the original to the purchaser and transmit the duplicate to the Registrar of Lands for the district in which the land is situate, in like manner as now is or shall be required to be done by notaries in respect of deeds executed before them; and the Fiscal or Deputy Fiscal shall be entitled to recover for such conveyance-

(a) when the amount of purchase shall be under thirty rupees, a fee of fifty cents;

(b) when it shall exceed thirty rupees, a fee of one rupee;

(c) when it shall exceed one hundred rupees, a fee of one rupee and fifty cents;

(d) when it shall exceed two hundred rupees, a fee of two rupees and fifty cents; and

(e) when it shall exceed five hundred rupees, a fee of three rupees and seventy-five cents, and no more;

and such fee shall be brought to account and appropriated in such manner as the Secretary to the Treasury shall direct.

But if the sale was effected in execution of a decree specifically directing the sale, then the conveyance shall be made in conformity with the directions of the court contained in the decree:

Conveyance to contain sufficient map of the premises.


[2, 32 of 1957.]

Provided, however, that to all conveyances made by the Fiscal to complete a sale effected in execution of a decree of court, in the event of there being no diagram or map of the premises which are the subject of the conveyance already appended to a title deed thereof delivered to the purchaser there shall, if the purchaser so requires but not otherwise, be annexed a sufficient map exhibiting, when possible, some permanent physical feature of the ground; and the purchaser shall pay in advance the expense of preparing it in addition to the fee prescribed for the conveyance. Such diagram or map shall be prepared by a competent surveyor licensed by the Fiscal or Deputy Fiscal for that purpose, and such surveyor shall be an officer of the Fiscal within the meaning of section 325, and shall for the purposes of the Penal Code be deemed to be a public servant.

Court may order delivery of possession to purchaser.

287.

(1) When the property sold is in the occupancy of the judgment-debtor or of some person on his behalf, or of some person claiming under a title created by the judgment-debtor subsequently to the seizure of such property, and a conveyance in respect thereof has been made to the purchaser under section 286, the court shall on application by the purchaser, order delivery to be made by putting the purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property, and, if need be, by removing any person bound by the decree who refuses to vacate the same.

Order how to be enforced.

(2) An order for delivery of possession made under this section may be enforced as an order falling under head (C) section 217, the purchaser being considered as judgment-creditor.

Mode of delivery where property is in occupancy of person entitled to occupy.

288. When the property sold is in the occupancy of a tenant or other person entitled to occupy the same, and a conveyance in respect thereof has been made to the purchaser under section 286, the court shall order delivery thereof to be made by affixing a notice of the sale having taken place, in the language of the court, and, where the language of the court is also Tamil, in that language, in some conspicuous place on the property, and proclaiming to the occupant by beat of tom- tom, or in such other mode as may be customary, at some convenient place, that the interest of the judgment-debtor has been transferred to the purchaser, and the cost (to be fixed by the court) of such proclamation shall in every case be prepaid by the purchaser.

Right and title of judgment-debtor not divested by sale till confirmation and execution of Fiscals conveyance.

289. The right and title of the judgment- debtor or of any person holding under him or deriving title through him to immovable property sold by virtue of an execution is not divested by the sale until the confirmation of the sale by the court and the execution of the Fiscals conveyance, But if the sale is confirmed by the court and the conveyance is executed in pursuance of the sale, the grantee in the conveyance is deemed to have been vested with the legal estate from the time of the sale.

Fiscal may enter property sold.

290. The Fiscal, on the day of the sale. or at any time thereafter until the confirmation of the sale by the court and the execution of the Fiscals conveyance may at his discretion, and if provided with the necessary funds therefore by the purchaser or by the judgment-creditor, or debtor, himself or by his agent duly authorized in writing enter into possession of the immovable property sold by virtue of the execution, and retain possession of the same until the confirmation of the sale by the court and the execution of the conveyance in pursuance thereof.

Person in possession may use and enjoy until confirmation of sale.

291. The person in possession of immovable property sold by virtue of an execution may, until the confirmation of the sale by the court and the execution of the Fiscals conveyance, use and enjoy the same as follows, without being chargeable with committing waste;-

(1) He may use it and enjoy it in like manner and for the like purposes as it was used and enjoyed before the sale, doing no permanent injury to the property.

(2) He may make the necessary repairs to a building or other erection thereupon. But this provision does not permit an alteration in the form or structure of the building or other erection.

(3) He may use and improve the land in the ordinary course of husbandry, and may collect, gather, harvest, and store the crops and produce thereof, but shall not be entitled to them.

(4) He may apply any wood or timber on the land to the necessary reparation of a fence, building, or other erection which was thereupon at the time of the sale.

On confirmation and execution of conveyance, Fiscal to deliver possession to grantee.

292. On the sate being confirmed by the court and the conveyance executed in pursuance of the sale, the Fiscal or person in possession of the immovable property sold shall forthwith give possession of the same, together with all the crops and produce (if any) collected, gathered, harvested, and stored subsequent to the sale, to the grantee in the conveyance ; and if the sale is not confirmed, the Fiscal or his agent shall forthwith, if in possession, restore the judgment-debtor or any person holding under him to possession of the immovable property together with all the crops and produce (if any) collected, gathered, harvested, and stored whilst the Fiscal or his agent was in possession.

Judgment-debtor may be restrained from waste.

293. If at any time before the execution of the Fiscals conveyance the judgment- debtor, or any other person in possession of the property sold, commits, or threatens to commit, or makes preparations for committing waste thereupon, the court from which execution issued may, upon the application of the purchaser or his agent or attorney, and proof by affidavit of the facts, grant, without notice, an order restraining the wrongdoer from committing waste upon the property.

Punishment for committing waste.

294. If the person against whom such an order is granted commits waste in violation thereof after the service upon him of the order, the court, upon proof by affidavit of the facts, may grant an order requiring him to show cause at a time and place therein specified why he should not be punished for a contempt.

And for disobeying order.

295. If upon the return of the order to show cause it satisfactorily appears that the person required to show cause has violated the former order, the court may punish him in manner provided by law for the punishment of contempt’s of court.

Moneys paid to. and realized by, the Fiscal
Mode of payment to court by attorneys-at- attorneys-at- law and other persons.


[39, Law 20 of 1977.]

296. Whenever any person, whether acting for himself or as an attorney-at-law for any other person, has occasion to pay any sum of money into any court to the credit of any case, he shall deposit such sum of money to the credit of such case in the appropriate bank account.

Mode of payment to court by Fiscal


[39, Law 20 of 1977.]

297.

(1) Whenever the Fiscal receives or realizes a sum of money in the course of the execution of a decree or otherwise, he shall issue a receipt for “such sum to the person making payment, and shall forthwith deposit such sum of money to the credit of such case in the appropriate bank account.

(2) In this and the preceding section “appropriate bank account” means the bank account of the court to whose credit or under whose authority such money is paid, received, or realized.

Arrest and Imprisonment
Issue of warrant for arrest of debtor execution of decree for money.

298.

(1) Where, after the issue of a writ for the execution of a decree for the payment of money, the court is satisfied on the application of the judgment-creditor, after such inquiry as the court may deem necessary, that the judgment-debtor-

(a) is about to abscond or leave the jurisdiction of the court with intent to defraud the judgment-creditor or with intent to obstruct or delay the execution of the decree ; or

(b) is about to leave Sri Lanka under circumstances affording reasonable probability that the judgment-creditor will thereby be obstructed or delayed in the execution of the decree; or

(c) has, on or after the date of the institution of the action in which the writ of execution was issued, concealed, transferred or removed his property or any part thereof with intent to defraud the judgment-creditor or with intent to obstruct or delay the execution of the decree, or has, on or after such date, committed with the like intent any act of bad faith in relation to his property; or

(d) has been guilty of any act whereby any creditor, other than the judgment-creditor at whose instance the writ of execution was issued, has been given any undue, unreasonable or fraudulent preference; or

(e) has, at any time since the date of the decree, had sufficient means to pay the amount of the decree, or any part of that amount, and has refused or neglected to pay such amount or part thereof; or

(f) being a trustee or person acting in any other fiduciary capacity, has, when ordered to pay by a court, made default in the payment of any sum in his possession or under his control,

the court may, subject to the other provisions of this Chapter, issue a warrant for the arrest of the judgment-debtor and for his production in court with a view to his committal to jail in execution of the decree.

(2) A decree for the payment of costs only shall, for the purposes of the application of the provisions of subsection (1), be deemed to be a decree for the payment of money.

Issue of notice on debtor as alternative to warrant.

299. The court may, in its discretion, instead of issuing a warrant under section 298, issue a notice on the judgment-debtor calling upon him to show cause, on a date to be specified in the notice, why he should not be committed to jail in execution of the decree referred to in that section.

Application for warrant to be made by petition and affidavit.

300. Every application under section 298 shall be made by petition supported by affidavit; and it shall not be necessary to name the judgment-debtor as respondent to any such application.

No arrest for sum under Rs. 1,500.


[40 Law 20 of 1977.]

301. No warrant under section 298 or notice under section 299 shall be issued in decree inclusive of interest, if any, up to the date of the decree but exclusive of any further interest and of costs, is less than one thousand five hundred rupees.

Woman not liable to arrest in execution.

302. No warrant under section 298 or notice under section 299 shall be issued where the judgment-debtor is a woman; and no woman shall be arrested or committed to jail in execution of any decree for the payment of money or of costs.

Warrant to issue where debtor fails appear on notice.

303. Where a judgment-debtor to whom a notice under section 299 has been issued fails to appear on the day specified in the debtor fails notice, the court may issue a warrant for his arrest.

Execution of warrant of arrest.

304. Subject to the provisions of Chapter XXIII, a judgment-debtor for whose arrest a warrant has been issued under section 298 or section 303 may be arrested at any hour, and on any day, and in any place, and shall thereupon, as soon as practicable, be brought before the court,

Officer effecting arrest to release debtor on payment of amount of decree and costs of arrest.

305. Where a judgment-debtor who has been arrested on a warrant pays the amount of the decree in execution of which he is arrested, and the costs of the arrest, to the officer arresting him, such officer shall at once release him from custody.

Discharge of debtor where amount of decree and costs of arrest paid into court.

306. Where a judgment-debtor is brought before the court after arrest on a warrant or appears in court in pursuance of a notice issued under section 299, and either-

(a) pays into court the amount of the decree and, if he has been brought before the court under a warrant, the costs of the arrest, or

(b) gives security for the payment of the same to the satisfaction of the judgment-creditor,

The court shall release him from arrest or discharge him from such notice, as the case may be. If such payment is not made or if such security is not given, the court shall call upon the judgment-debtor to show cause why he should not be committed to jail.

Debtor who has no cause to show to be discharged or committed to Jail.

307. Where the judgment-debtor, on being called upon to show cause under section 306, has no cause to show, the court shall commit him to jail.

Debtor who has cause to show to be discharged or committed to Jail after inquiry.

308. Where the Judgment-debtor, on being called upon to show cause under section 306, proves to the satisfaction of the court-

(a) that any material allegation of fact, made in the affidavit of the judgment-creditor or given in evidence before the court prior to the issue of the warrant or notice, in consequence of which such warrant or notice was issued, was untrue or incorrect; or

(b) that for any other reason the warrant or notice should not have been issued, or was irregularly issued in the first instance ;

he shall, if under arrest, be released or, if he has appeared on notice, be discharged from such notice; but if he fails or is unable to furnish such proof the court shall commit him to jail.

Provided that if, on the date on which the Judgment-debtor is brought or appears before the court, the court is satisfied that a warrant for the arrest of the judgment-debtor may be issued on any ground other than that on which the warrant or notice was issued in the first instance, the court may commit the judgment-debtor to jail.

Written statement to be filed by debtor who desires to show cause.

309. Where a judgment-debtor contends that any material allegation of fact, made in the affidavit of the judgment-creditor or given in evidence before the court prior to the issue of the warrant or notice, is untrue or incorrect, he shall file in court a written statement specifying which of the allegations in such affidavit or in such evidence is impugned as untrue or incorrect; and where a judgment-debtor contends that the warrant or notice should not have been issued or was irregularly issued, he shall file in court a written statement of the grounds on which such contention is based.

Debtor to be committed to jail or to give security for appearance pending inquiry.

310.

(1) Where the judgment-debtor desires to show cause why he should not be committed to jail, the court may appoint a date for an inquiry and may, pending such inquiry, order the judgment-debtor to be detained in prison or take sufficient security from him that he will appear in court when called upon.

(2) A judgment-debtor who is not detained in prison pending the inquiry may be arrested on a warrant issued by the court at any time for the purposes of such inquiry or with a view to his committal to jail.

(3) The inquiry referred to in subsection (1) may be adjourned from time to time by order of the court.

Issue of warrant of committal to jail.

311. Where a judgment-debtor is committed to Jail, the court shall issue a warrant substantially in the form No. 61 m the First Schedule.

Debtor discharged under section 306 or section 308 not to be rearrested.

312. Where a judgment-debtor has been released after arrest on a warrant or discharged from a notice under section 306 or section 308, no further proceedings shall be taken as hereinbefore provided with a view to the committal to jail of that judgment-debtor in execution of the decree in respect of which such warrant or notice was issued.

Sufficient interim subsistence money to be deposited before arrest.

313. No judgment-debtor shall be arrested in execution of a decree unless and until the decree-holder pays into court such sum as the Judge thinks sufficient for the subsistence of the judgment-debtor from the time of his arrest until he can be brought before the court, and, where the writ is to be executed in another district, such further sum as the Judge thinks sufficient to cover the expenses of his transport to the court issuing the writ.

Subsistence allowance during imprisonment to be fixed on commitment.

314. And when a judgment-debtor is committed to jail in execution of a decree, the court shall fix for his subsistence such monthly allowance as he may be entitled to at rates to be fixed by order of Government from time to time, as occasion shall require,

Allowance to be paid monthly in advance.

315.

(1) The monthly allowance fixed by the court shall be supplied to the Fiscal by the party on whose application the decree has been executed by monthly payments in advance before the first day of each month.

(2) The first payment shall be made for such portion of the current month as remains unexpired before the judgment-debtor is committed to jail.

Power to vary allowance or additional payments.

315A.

(1) Where a judgment-debtor who has been committed to jail is, with the approval of the Commissioner of Prisons, either given any special diet on medical advice or admitted to any hospital for examination or treatment, and the monthly allowance fixed under section 314 for the subsistence of that judgment-debtor is insufficient to meet the cost of such special diet, examination or treatment, the court may by order, on application made by the Fiscal, and after hearing such representations as may be made by the party on whose application the decree has been executed and such other evidence as the court may deem necessary-

(a) vary the monthly allowance fixed under section 314, and specify the period during which the allowance so varied shall be payable, or

(b) fix such additional sum as may, in the opinion of the court, be necessary to meet the cost of such examination or treatment in hospital and all expenses incidental thereto or connected therewith, and may specify in that order the time and manner of payment of such additional sum.

(2) Any order made by the court under subsection (1) may at any time be varied or cancelled by the court by a further order, on application made by the Fiscal or by the party on whose application the decree has been executed, and after such inquiry as the court may deem necessary.

(3) The provisions of section 315 shall apply to the monthly allowance as varied under this section, in like manner as those provisions apply to the monthly allowance originally fixed by the court.

(4) Any additional sum for the payment of which an order is made under this section shall be supplied to the Fiscal by the party on whose application the decree has been executed, in the manner and at the time specified in the order of the court.

Disbursements by decree holder to be deemed costs.

316. Sums of money disbursed by the decree-holder under section 315 or section 315A shall be deemed to be costs in the action:

Provided that the judgment-debtor shall not be detained in jail or arrested on account of any sum so disbursed ;

Provided further, that where at the time of the discharge of the judgment-debtor from jail there remains any unexpended balance out of the sum so disbursed, such balance shall be repaid by the Fiscal to the decree-holder and shall not be deemed to be costs in the action.

When debtor entitled to be discharged from jail.

317.

(1) The judgment-debtor shall be discharged from jail-

(a) on the decree being fully satisfied ; or

(b) at the request of the person on whose application he has been imprisoned ; or

(c) on such person omitting to pay the allowance as hereinbefore directed ; or

(d) if the Judgment-debtor be declared an insolvent, and an order in insolvency is made by the District Court protecting him from arrest; or

(e) when the term of his imprisonment as limited by section 318 is fulfilled :

Provided that in the first, second, third, and fourth cases mentioned in this subsection the judgment-debtor shall not be discharged without the order of the court.

(2) A judgment-debtor discharged under this section is not thereby discharged from his debt, but he cannot be rearrested under the decree in execution of which he was imprisoned.

Limit of imprisonment.

318. No person shall be imprisoned in execution of a decree for a longer period than six months.

Endorsement on the warrant.

319. The Fiscal shall endorse upon the warrant of arrest the day on and the manner in which it was executed, and if the latest day specified in the warrant for the return thereof has been exceeded, the reason of the delay; or if it was not executed, the reason why it was not executed, and shall return the warrant with such endorsement to the court.

(B) DECREES FOR DELIVERY OF MOVABLE PROPERTY
Application for execution of decree for delivery of movable properly, how to be made. Form of writ.

320. If the decree is for any specific movable or for any share in a specific movable, application to the court for execution of the decree by seizure and delivery may be made by the judgment- creditor in the manner and according to the rules prescribed for execution of decrees under head (A) so far as the same are applicable; and if the court on such application is satisfied that the judgment- creditor is entitled to obtain execution of the decree, it shall direct a writ of execution to issue to the Fiscal in the form No. 62 in the First Schedule.

Fiscal to procure delivery thereunder.

321.

(1) Upon receiving the writ the Fiscal or his officer shall as soon as reasonably may be repair to the dwelling house or place of residence of the judgment- debtor, and there showing him the writ shall demand delivery of the movable or, if practicable, the share thereof specified therein, and on his failing to comply with his demand, the Fiscal or his officer shall, if possible, seize the said specific movable or share thereof, and deliver the same to the Judgment-creditor or to the person authorized by him to receive it.

Procedure on default.

(2) If the judgment-debtor fails to comply with the Fiscals demand, and if the Fiscal is unable to obtain for the judgment-creditor delivery of the specific movable or share thereof mentioned in the writ, then the court upon being satisfied of these facts may, on application made to it by the judgment-creditor by petition, to which the judgment-debtor is made respondent, direct a writ of execution by seizure and sale of the judgment-debtor’s property, or a warrant for the arrest of the judgment-debtor, or both, to issue to the Fiscal.

Amount to be levied and manner of execution.

322. The amount of money directed to be levied in the writ of execution by seizure and sale issuing under the preceding section shall be the amount of pecuniary loss as nearly as the court can estimate it, which is occasioned to the Judgment-creditor by reason of the judgment-debtor’s default in making delivery of the specific movable or share thereof according to the terms of the decree, and which the court shall award by way of compensation to the judgment-creditor by the order directing the writ to issue ; and the execution of this writ, and of the warrant of arrest issuing under the same section, shall be effected according and subject to the rules prescribed for the writ of execution and warrant of arrest issued for the enforcement of decrees falling under head (A).

(C) DECREES FOR POSSESSION OF IMMOVABLE PROPERTY
Application for execution of decree for delivery of immovable property, how to be made. Form of writ.

323. If the decree or order is for the recovery of possession of immovable property or any share thereof by the judgment-creditor, or if it directs the judgment-debtor to yield or deliver up possession thereof to the judgment-creditor, application to the court for execution of the decree may be made by the judgment-creditor in the manner, and according to the rules, prescribed for execution of decrees under head (A), so far as the same are applicable; and if the court on such application is satisfied that the judgment-creditor is entitled to obtain execution of the decree, it shall direct a writ of execution to issue to the Fiscal in the form No, 63 in the First Schedule.

Fiscal how to proceed thereunder.

324.

(1) Upon receiving the writ the Fiscal or his officer shall as soon as reasonably may ‘be repair to the ground, and there deliver over possession of the property described in the writ to the judgment-creditor or to some person appointed by him to receive delivery on his behalf, and if need be by removing any person bound by the decree who refuses to vacate the property:

Provided that as to so much of the property, if any, as is in the occupancy of a tenant or other person entitled to occupy the same as against the judgment-debtor, and not bound by the decree to relinquish such occupancy, the Fiscal or his officer shall give delivery by affixing a copy of the writ in some conspicuous place on the property and proclaiming to the occupant by beat of tom-tom, or in such other mode as is customary, at some convenient place, the substance of the decree in regard to the property; and

Provided also that if the occupant can be found, a notice in writing containing the substance of such decree shall be served upon him, and in such case no proclamation need be made.

(2) The cost (to be fixed by the court) of such proclamation shall in every case be prepaid by the judgment-creditor.

Resistance to Execution of Proprietary Decrees
Procedure in event of resistance to execution of writ or delivery of property.


[41, Law 20 of 1977.]

325.

(1) Where in the execution of a decree for the possession of movable or immovable property the Fiscal is resisted or obstructed by the judgment-debtor or any other person, or where after the officer has delivered possession, the judgment-creditor is hindered or ousted by the judgment-debtor or any other person in taking complete and effectual possession thereof, and in the case of immovable property, where the judgment-creditor has been so hindered or ousted within a period of one year and one day, the judgment-creditor may at any time within one month from the date of such resistance or obstruction or hindrance or ouster, complain thereof to the court by a petition in which the Judgment-debtor and the person, if any, resisting or obstructing or hindering or ousting shall be named respondents. The court shall thereupon serve a copy of such petition on the parties named therein as respondents and require such respondents to file objections, if any, within such time as they may be directed by court.


[9,53 of 1980]

(2) When a petition under subsection (1) is presented, the court may, upon the application of the judgment-creditor made by motion ex parte, direct the Fiscal to publish a notice announcing that the Fiscal has been resisted or obstructed in delivering possession of such property, or that the judgment-creditor has been hindered in taking complete and effectual possession thereof or ousted therefrom, as the case may be, by the judgment-debtor or other person, and calling upon all persons claiming to be in possession of the whole or any part of such property by virtue of any right or interest and who object to possession being delivered to the judgment-creditor to notify their claims to court within fifteen days of the publication of the notice-

(3) The Fiscal shall make publication by affixing a copy of the notice in the language of the court, and, where the language of the court is also Tamil, in that language, in some conspicuous place on the property and proclaiming in the customary mode or in such manner as the court may direct, the contents of the notice. A copy of such notice shall be affixed to the court-house and if the court so orders shall also be published in any daily newspaper as the court may direct,

(4) Any person claiming to be in possession of the whole of the property or part thereof as against the judgment- creditor may file a written statement of his claim within fifteen days of the publication of the notice on such property, setting out his right or interest entitling him to the present possession of the whole property or part thereof and shall serve a copy of such statement on the judgment-creditor. The investigation into such claim shall be taken up along with the inquiry into the petition in respect of the resistance, obstruction, hindrance or ouster complained of, after due notice of the date of such investigation and inquiry has been given to all persons concerned.

Punishment of person obstructing.


[10,53 of 1980.]

326.

(1) On the hearing of the matter of the petition and the claim made, if any, the court, if satisfied-

(a) that the resistance, obstruction, hindrance or ouster complained of was occasioned by the. judgment-debtor or by some person at his instigation or on his behalf;

(b) that the resistance, obstruction, hindrance or ouster complained of was occasioned by a person other than the judgment-debtor, and that the claim of such person to be in possession of the property, whether on his own account or on account of some person other than the judgment-debtor, is frivolous or vexatious; or

(c) that the claim made, if any, has not been established, shall direct the judgment-creditor to be put into or restored to the possession of the property and may, in the case specified in paragraph (a), in addition sentence the judgment-debtor or such other person to imprisonment for a period not exceeding thirty days,


[41, Law 20 of 1977.]

(2) Where any claim is established only to a share of any property, it shall be competent to the court in any order made under the preceding subsection to direct that the judgment-creditor be put into or restored to possession of the share of the property to which no claim has been established.


[41, Law 20 of 1977.]

(3) The court may make such order as to the costs of the application, the charges and expenses incurred in publishing the notice and the hearing and the reissue of writ as the court shall deem meet.

If resistance be made by bona fide claimant in possession, court to dismiss the petition.


[41, Law 20 of 1977.]

327. Where the resistance or obstruction or hindrance or ouster is found by court to have been occasioned by any person other than the judgment-debtor, claiming in good faith to be in possession of the whole of such property on his own account or on account of some person other than the judgment-debtor by virtue of any right or interest, or where the claim notified is found by the court to have been made by a person claiming to be in possession of the whole of such property on his own account or on account of some person other than the judgment-debtor, by virtue of any right or interest, the court shall make order dismissing the petition.

Court shall investigate dispute if bona fide claimant be dispossessed in effecting the execution.


[41, Law 20 of 1977.]

328. Where any person other than the judgment-debtor or a person in occupation under him is dispossessed of any property in execution of a decree, he may, within fifteen days of such dispossession, apply to the court by petition in which the judgment-creditor shall be named respondent complaining of such dispossession. The court shall thereupon serve a copy of such petition on such respondent and require such respondent to file objections, if any, within fifteen days of the service of the petition on him. Upon such objections being filed or after the expiry of the date on which such objections were directed to be filed, the court shall, after notice to all parties concerned, hold an inquiry. Where the court is satisfied that the person dispossessed was in possession of the whole or part of such property on his own account or on account of some person other than the judgment-debtor, it shall by order direct that the petitioner be put into possession of the property or part thereof, as the case may be.

Effect of order made under section 326 or section 327 or section 328.

329. No appeal shall lie from any order made under section 326 or section 327 or section 328 against any party other than the judgment-debtor. Any such order shall not bar the right of such party to institute an action to establish his right or title to such property.

How subsequent obstruction to be dealt with.


[11,53 of 1980.]

330. Any subsequent resistance or obstruction to the execution of the writ or hindrance to the possession or ouster of the judgment-creditor within a year and a day of the delivery of possession –

(a) by the judgment-debtor or any other respondent to the petition under section 325, or

(b) where a notice under subsection (2) of section 325 has been duly published, by any person whosoever, shall be punishable as a contempt of court.

DECREES FOR EXECUTION OF CONVEYANCE OR TRANSFER OF PROPERTY
Application for enforcement of decree for execution of any conveyance, how to be made.

331. If the decree is for the execution of a conveyance, or for the endorsement of a negotiable instrument, and the judgment- debtor neglects or refuses to comply with the decree, the decree-holder may prepare the draft of a conveyance or endorsement in accordance with the terms of the decree, and apply to the court by petition, not naming a respondent, to have the said draft served on the judgment-debtor.

Service of the draft conveyance on judgment-debtor. Objections to draft.

332.

(1) The court shall thereupon cause the draft and a copy of the petition to be served on the judgment-debtor in manner hereinbefore provided for serving a summons, together with a notice in writing stating that his objections, if any, thereto, shall be made within such time (mentioning it) as the court fixes in this behalf, and will come on before the court to be considered and determined on a day to be named in the notice for that purpose.

(2) The decree-holder may also tender a duplicate of the draft to the court for execution, supplying a stamp of the proper amount if a stamp is required by law.

(3) On proof of such service the court, or such officer as it appoints in this behalf, shall on the day appointed for the consideration of objections, if no objections are made, proceed to execute the duplicate so tendered, or may, if necessary, alter the same, so as to bring it into accordance with the terms of the decree, and execute the decree so altered.

Objections to draft.

But in the event of the judgment-debtor or any other party on that day objecting to the draft so served, provided the objections have been stated in writing and filed within the time fixed therefore, the court shall proceed to hear and determine such objections, and shall thereupon pass such order as it thinks fit, and execute, or alter and execute, the duplicate in accordance therewith.

Execution of the conveyance by the court.

333. The execution of a conveyance or the endorsement of a negotiable instrument by the court under the last preceding section may be in the following form: “C. D., Judge of the court of (as the case may be), for A. B., in an action by E. F. against A. B.”, or in such other form as the Supreme Court may from time to time prescribe, and shall have the same effect as the execution of the” conveyance or endorsement of the instrument by the party ordered to execute or, endorse the same, and such conveyance shall be binding and of force though not executed before a notary public. And the court shall deliver the original of such conveyance to the decree-holder, and shall transmit the duplicate to the Registrar of Lands for the district in which the land is situate, in like manner as now is or shall be required to be done by notaries in respect of deeds executed before them.

Meaning of conveyance m section 331 332, and 333.’

333A. In sections 331, 332, and 333 the expression conveyance ” includes ” contract or other document”.

(E) & (F) MANDATORY AND RESTRAINING DECREES
Application for enforcement of decrees, how to be made. Court may issue writ of execution by seizure and sale.

334. When a decree or order falling under either of the heads (E) or (F) has been passed, and the judgment-debtor has had an opportunity of obeying the decree or order, but has willfully failed to obey it, application to the court for execution or enforcement of the decree or order may be made by the judgment-creditor by petition to which the judgment-debtor shall be made respondent; and which shall set out the damage, if any, caused to the judgment-creditor by the disobedience of the judgment-debtor to the decree or order.

And if the court on the hearing of such application is satisfied that the judgment- creditor is entitled to obtain execution or enforcement of the decree or order, it shall direct a writ of execution by seizure and sale of the judgment-debtor’s property, or a warrant for the arrest of the judgment- debtor, or both, to issue to the Fiscal.

Amount to be levied under writ.

335. The amount of money directed to be levied on the writ of execution issuing under the preceding section shall be the amount of pecuniary loss, if any, as nearly as the court can estimate it, which is occasioned to the judgment-creditor by reason of the judgment-debtor’s default in obeying the decree or order, and which the court shall award by way of compensation to the judgment-creditor by the order directing the writ to issue. And the execution of this writ and of the warrant of arrest issuing under the same section shall be effected according, and subject, to the rules prescribed for the writ of execution and warrant of arrest issued for the enforcement of decrees falling under head (A).

GENERAL PROVISIONS
Discretion of court to issue execution.

336. The court may in its discretion refuse to issue execution at the same time against the person and property of the judgment-debtor in cases when the judgment-creditor is entitled to apply for both simultaneously.

When subsequent application may be made for execution of decree partly sat is tied.


[12,53 of 1980.]

337.

(1) No application (whether it be the first or a subsequent application) to execute a decree, not being a decree granting an injunction, shall be granted after the expiration of ten years from –

(a) the date of the decree sought to be executed or of the decree, if any, on appeal affirming the same; or

(b) where the decree or any subsequent order directs the payment of money or the delivery of property to be made on a specified date or at recurring periods, the date of the default in making the payment or delivering the property in respect of which the applicant seeks to execute decree.

(2) Nothing in this section shall prevent the court from granting an application for execution of a decree after the expiration of the said term of ten years, where the judgment-debtor has by fraud or force prevented the execution of the decree at some time within ten years immediately before the date of the application.


[12,53 of 1980.]

(3) Subject to the provisions contained in subsection (2), a writ of execution, if unexecuted, shall remain in force for one year only from its issue, but –

(a) such writ may at any time, before its expiration, be renewed by the judgment-creditor for one year from the date of such renewal and so on from time to time ; or

(b) a fresh writ may at any time after the expiration of an earlier writ be issued,

till satisfaction of the decree is obtained

Application by one of several decree-holders for execution of the decree for the benefit of all.

338.

(1) If a decree has been passed jointly in favour of more persons than one, any one or more of such persons, or his or their legal representatives, may apply for the execution of the whole decree for the benefit of them all, or, where any of them has died, for the benefit of the survivors and those claiming under the deceased. The application for this purpose shall be made by petition to which the co-decree-holders or their representatives as well as the judgment-debtor shall be respondents.


[42, Law 20 of 1977.]

(2) If the court sees sufficient cause for allowing the decree to be executed on an application so made, it shall pass such order as it deems necessary for protecting the interests of the persons who have not Joined in the application.

(3) For the purposes of this Chapter-

(a) “estate” means the gross value of the estate of the deceased ; and

(b) ” legal representative” means an executor or administrator or in the case of an estate below the value of twenty thousand rupees, the next of kin who have adiated the inheritance:

Provided, however, that in the event of any dispute arising as to who is the legal representative, the provisions of section 397 shall, mutatis mutandis, apply.

Application by assignee of a decree for execution thereof, how to be made.

339.

(1) If a decree is transferred by assignment in writing or by operation of law from the decree-holder to any other person, the transferee may apply for its execution by petition, to which all the parties to the action or their representatives shall be made respondents, to the court which passed it, and if on that application that court thinks fit, the transferee’s name may be substituted for that of the transferor in the record of the decree, and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder:

Provided that where the decree has been transferred by operation of law, the transferor need not be made respondent to the petition;

Provided also that where a decree against several persons has been transferred to one of them, it shall not be executed against the others.

(2) In the case where one decree of court is seized in execution of another decree, the judgment-creditor of the second decree is in the situation of assignee of the judgment-creditor of the decree which is seized, provided the latter person is identical with the judgment-debtor of the decree in execution of which the seizure is made.

Transferee bound by equities.

340. Every transferee of a decree shall hold the same subject to the equities (if any) which the judgment-debtor might have enforced against the original decree-holder.

Legal representative of deceased debtor, how made liable.

341.

(1) If the judgment-debtor dies before the decree has been fully executed, the holder of the decree may apply to the court which passed it, by petition, to which the legal representative of the deceased shall be made respondent, to execute the same against the legal representative of the deceased.

and extent of liability.

(2) Such representative shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and for the purpose of ascertaining such liability, the court executing the decree may on the application of the decree-holder compel the said representative to produce such accounts as it thinks fit.

Fiscal may adjourn sale.

342. The Fiscal may in his discretion adjourn a sale:

Provided that the date to which the sale is adjourned is published in the same manner as was the original notice of sale; and

Provided also that he report to the court in his return to the writ of execution, or sooner, the cause for which the adjournment was made.

Stay of proceedings adjournment of sale by court.

343.

(1) The court may for sufficient cause stay execution proceedings at stage thereof, and make order for adjournment of a sale.

(2) The application to the court to stay proceedings shall be made by petition, to which all persons interested in the matter of the execution shall be made parties, and no such order shall be made until after payment of all Fiscals fees then due.

All questions arising in execution to be determined by order of court and not by separate action.

344. All questions arising between the parties to the action in which the decree was passed, or their legal representatives, and relating to the execution of the decree, shall be determined by order of the court executing the decree, and not by separate action.

Procedure where there are cross decrees between the parties.

345.

(1) If cross decrees between the same parties for the payment of money be produced to the court, execution shall be taken out only by the party who holds a decree for the larger sum, and for so much only as remains after deducting the smaller sum, and satisfaction for the smaller sum shall be entered on the decree for the larger sum as well as satisfaction on the decree for the smaller sum.

(2) If the two sums be equal, satisfaction shall be entered up on both decrees.

Explanation

1.-The decrees contemplated by this section are decrees capable of execution at the same time and by the same court.

Explanation

2.-This section applies where either party is an assignee of one of the decrees and as well in respect of judgment-debts due by the original assignor as in respect of judgment-debts due by the assignee himself.

Explanation

3.-This section does not apply unless-

(a) the decree-holder in one of the actions in which the decrees have been made is the judgment-debtor in the other and each party fills the same character in both actions, and

(b) the sums due under the decrees are definite and unconditional.

Illustrations

(a) A holds a decree against B for one thousand rupees. B holds a decree against A for the payment of one thousand rupees in case A fails to deliver certain goods at a future day. B cannot treat his decree as a cross decree under this section.

(b) A and B, co-plaintiffs, obtain a decree for one thousand rupees against C; and C obtains a decree for one thousand rupees against B. C cannot treat his decree as a cross decree under this section.

(c) A obtains a decree against B for one thousand rupees. C, who is a trustee for B, obtain a decree on behalf of B against A for one thousand rupees. B cannot treat C’s decree as a cross decree under this section.

Procedure where parties recover different amounts under same decree.

346.

(1) When two parties are entitled under the same decree to recover from each other sums of different amounts, the party entitled to the smaller sum shall not take out execution against the other party; but satisfaction for the smaller sum shall be entered on the decree.

(2) When the amounts are equal, neither party shall take out execution, but satisfaction for each sum shall be entered on the decree.

Proceedings here one year hat. elapsed from date of decree.

347. In cases where there is no respondent named in the petition of application for execution, if more than one year has elapsed between the date of the decree and the application for its execution, the court shall cause the petition to be served on the Judgment-debtor, and shall proceed thereon as if he were originally named respondent therein:

Provided that no such service shall be necessary if the application be made within one year from the date of any decree passed on appeal from the decree sought to be executed or from the date of the last order against the party, against whom execution is applied for, passed on any previous application for execution.

Execution against surety.

348. Whenever a person has before the passing of a decree in an original action become liable as surety for the performance of the same or of any part thereof, the decree may be executed against him to the extent to which he has rendered himself liable in the same manner as a decree may be executed against a judgment-debtor, upon application made by the judgment-creditor to the court for that purpose by a petition to which the person sought to be made liable as surety shall be named respondent.

Decree-holder to certify payment to the court.

349.

(1) If any money payable under a decree is paid Out of Court, Or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree -holder, he shall certify such payment or adjustment to the court whose duty it is to execute the decree.

(2) The judgment-debtor may also by petition inform the court of such payment or adjustment, and apply to the court to issue a notice to the decree-holder to show cause on a day to be fixed by the court why such payment or adjustment should not be recorded as certified. And if after due service of such notice the decree-holder fails to appear on the day fixed, or having appeared fails to show cause why the payment or adjustment should not be recorded as certified, the court shall record the same accordingly.

(3) No such payment or adjustment shall be recognized by any court unless it has been certified as aforesaid.

Concurrence and preference.


[43, Law 20 of 1977.]

350.

(1) Money, which in the course of an action or in satisfaction of a decree has been paid into and received by the court shall be paid to the person entitled to the same, on his ex parte application.

(2) Where-

(a) before money realized in execution of a decree, other than money received or seized by the Fiscal from the judgment-debtor in payment of the amount of the writ before the sale in execution of any property belonging to him or being current coin or currency notes seized by the Fiscal, is paid to the decree-holder in the action in which the execution issued, or

(b) before money other than money realized in execution of a decree is paid to a judgment-creditor seizing such money,

notice is given to the court of any claim to such money-

(i) by a person claiming to be entitled to preferential payment by reason of any mortgage, charge or lien in his favour;

(ii) by a person holding a decree against the same judgment-debtor, whether entered by the same or another court; or

(iii) by the Fiscal in respect of claims of other writ-holders whose writs he had in his hands at the time of the sale in cases where a sale is carried out by him in execution,

the money shall first be paid to the persons, if any, entitled to receive payment preferentially, and shall next be rate ably distributed among the decree-holders in the action or the judgment-creditor seizing such money and all other decree-holders whose claims have been notified to court under paragraphs (ii) and (iii) above.

(3) Before the court makes order under the preceding subsection, notice shall be given to the parties to the action and all persons whose claims have been notified to court under that subsection that the court will on a day to be specified in the notice proceed to hear and determine the claims to the money in court.

(4) On the day so specified or on some other day to which the court may for sufficient cause adjourn the hearing, the court shall proceed to hear and adjudicate upon the claims made and make such order as the justice of the case may require, or the court may, if in its opinion any claim cannot be conveniently heard and adjudicated upon, refer the parties to a separate action and may continue to hold the money or any part thereof pending the decision of the separate action.

Where the same property seized in execution of decrees of more courts than one.

351. Where property not in the custody of any court has been seized in execution of decrees of more courts than one, the court which shall receive or realize such property and shall determine any claim thereto and any objection to the seizure thereof shall be the court of highest grade, or, where there is no difference in grade between such courts, the court under whose decree the property was first seized.

Where several decree-holders are entitled to share rate ably in proceeds of a sale of debtor’s property.

352.

(1) Whenever assets are realized by sale or otherwise in execution of a decree, and more persons than one have prior to the realization, applied to the court by which such assets are held for execution of decrees for money against the same judgment-debtor, and have not obtained satisfaction thereof, the assets, after deducting the costs of the realization, shall be divided rate ably among all such persons :

Provided that, when any property is sold which is subject to a mortgage or charge, or for any other reason remains subject to a mortgage or charge notwithstanding the sale, the mortgagee or incumbrancer shall not as such be entitled to share in any proceeds arising from such sale.

Share of such proceeds paid to wrong person may be recovered by action by person entitled.

(2) If all or any portion of the money realized in execution of a decree is in the distribution made under the last preceding section paid to a person not entitled to receive the same, any person who is so entitled may sue such person to compel him to refund the money.

Order for payment of money enforced as a decree.

353. Every order made by a court, in any action or proceeding between parties, for payment of money not being a fine, shall have the effect of a decree for the payment of money, and on default of payment according to its terms shall be enforceable upon the application of the party at whose instance it was made in like manner as a decree for money.

Fine imposed by civil court how to be levied.

354. In the event of an order being made by the civil court under the provisions of this Ordinance for the payment of a fine, and in the event of the fine not being paid into court at the time appointed therefore by the order, the amount of the said fine shall be levied by the Fiscal from the property of the person against whom the order was made; and the court shall forthwith, on the occurrence of the default, of its own motion issue its writ or precept to the Fiscal for this purpose.

CHAPTER XXIII
OF SERVICE OF PROCESS
Writs or warrants to be usually issued to the Fiscal for execution.


[44, Law 20 of 1977]

355. Writs or warrants to levy money, or to take any person in arrest, or to detain any person in custody, or to deliver possession of property, shall usually be directed to the Fiscal of the court issuing the writ or warrant; but any such writ or warrant may be issued to any grama seva niladhari, constable or officer of police. And where any such writ or warrant is issued by the Supreme Court, the Court of Appeal, or by any court within the local limits of whose jurisdiction the party against whom it is issued does not actually and voluntarily reside, or carry on business, or personally work for gain, or is not possessed of property sufficient to satisfy the same, such writ or warrant shall be issued to the Fiscal of a court within the jurisdiction of which such party does actually and voluntarily reside or carry on business, or personally work for gain, or is possessed of such property.

To whom may all purpose of court not being writs or warrant be directed.


[45, Law 20 of 1977]

356. All processes of court not being writs, or warrants directed to the Fiscal or other person for execution, and all notices and orders required by this Ordinance to be given to or served upon any person, shall, unless the court otherwise directs, be issued for service to the Fiscal of the court issuing such processes, notices, or orders under a precept of that court as is hereinbefore provided for the case of the summons to the defendant in an action. And the provisions of this Ordinance from section 59 to section 70, both inclusive, relative to the service of such summons shall apply, so far as is practicable, to the service of such processes, notices, and orders. Whenever it becomes necessary to serve any such processes outside the local limits of the jurisdiction of the court issuing them, it shall be competent to such court to issue such processes, notices and orders for service to the Fiscal of any other court of like jurisdiction within the local limits of the jurisdiction of which such processes, notices and orders have to be served.

Fiscal to executed and serve processes of court.

357. It shall be the duty of every Fiscal, upon receiving any writ, or warrant, or precept directed to him by any court, by himself or by his officers, to execute such writ or warrant, and to serve every process, notice, or order conveyed to him under such precept according to the exigency of the writ, warrant, or precept.

Proceedings against Fiscal for contempt, & c.


[46, Law 20 of 1977.]

358. All proceedings for attachment, contempt, or otherwise against a Fiscal or Deputy Fiscal for neglect or refusal to serve process or to comply with any order or direction of the court in connection therewith shall, where such Fiscal or Deputy Fiscal is the Fiscal or Deputy Fiscal of a court other than that of the court issuing such process, order, or direction, be referred by such court to the court to which such Fiscal or Deputy Fiscal is attached, and shall be dealt with by the latter court as if such neglect or refusal related to its own process or orders.

Grama seva niladhari or constable to execute or serve processes in his own limits only.

359. It shall be the duty of every grama seva niladhari, constable, or officer of police, upon receiving any writ or warrant or precept directed to him by any court, to execute such writ or warrant and to serve every process, notice, or order conveyed to him under such precept according to the exigency of the writ, warrant, or precept in any place within the district or division in which such grama seva niladhari, constable, or officer is empowered to act.

Endorsement of process by Fiscal.


[47, Law 20 of 1977]

360. It shall be competent to any Fiscal to whom any writ, warrant, or precept has been directed under the foregoing sections, and to the Fiscals officer to whom the Fiscal may have entrusted such writ, warrant, or precept for execution, to endorse thereon the name of any grama seva niladhari, constable, or officer of police; and such endorsement shall operate in the case of a grama seva niladhari, constable or officer of police to constitute the person whose name is endorsed an officer of the Fiscal for the purpose of executing such writ, or warrant, or precept.

Duty of every Fiscal to assist.


[48, Law 20 of 1977.]

361. Every Fiscal and Fiscals officer shall, and every grama seva niladhari, constable, or officer of police shall, within the local limits in which he is empowered to act, afford his aid and assistance to anyone charged under the foregoing sections with the duty of executing any writ or warrant, or of serving any process, notice, or order of court.

Every writ or process to be valid for the whole of Sri Lanka.


[ 49, Law 20 of 1977]

362. Every mandate, writ, warrant, precept, or other process issuing from the Supreme Court, the Court of Appeal, or from any District Court or Family Court or Primary Court shall have full force and validity in every place throughout Sri Lanka ; and every person charged under the foregoing sections with the duty of executing any such process shall be protected thereby from civil liability for loss or damage caused by, or in the course of, or immediately consequential upon, the execution of such process by him, or in the case of the Fiscal by his officers, except when the loss or damage for which the claim is made is attributable to any fraud, gross negligence, or gross irregularity of proceeding, or gross want of ordinary diligence or abuse of authority on the part of the person executing such process:

Provided that no action shall be maintainable against any person charged as aforesaid with the duty of executing any such process in respect to his execution thereof, unless previous notice in writing distinctly setting forth the grounds of such action shall have been given to him by or on behalf of the plaintiff one month at least before the commencement of such action, and unless such action shall be brought within nine months after the cause of action shall have arisen;

And provided further, that it shall be lawful for the person to whom such notice of action has been given at any time before the commencement of such action to tender amends to the party aggrieved, and if the same be refused to plead such tender, at the same time paying into court for the use of the plaintiff the amount so tendered, and if the court by its judgment in the action shall hold that the amount so tendered and paid into court is sufficient amends for the party aggrieved, the decree shall be passed in favour of the plaintiff for such amount, but he shall be condemned to pay all costs.

What acts not within last section.

363. The seizure or sale of property, which does not belong to the person whose property is authorized by a writ of levy to be seized and sold, shall not be deemed to be an act done by or in the course of, nor an immediate consequence of, the execution of such writ within the meaning of the first paragraph of the last preceding section. But no person charged as aforesaid shall be liable in damages for any such seizure or sale, if the same shall be shown to have been effected under the bona fide belief that the property did belong to the person whose property is authorized to be seized or sold.

Form of precept.

364. Unless otherwise in this Ordinance enacted the precept of the court to the Fiscal directing the service of any process, order, or notice, or other document, not amounting to a writ to levy money, or to take any person in arrest, or to detain any person in custody, or do deliver possession of property shall be in the form No. 17 in the First Schedule.

When process may not be served.

365. Process in civil cases, whether at the suit of the State or individuals, shall not be served or executed between the period of sunset and sunrise, nor on a public holiday, nor on any minister of religion, a bhikku or other priest or religious functionary while performing his functions in any place of public worship nor upon any individual of any congregation during the performance of public worship at any such place.

Outer door not to be forced.

366. The outer door of any dwelling house shall not be forced open in order seize the person under civil process issued at the suit of a private individual, excepting such person shall have escaped or shall have been rescued after having been duly arrested.

In effecting seizure of movable property inner door may be opened.

367. If the person executing any process under this Ordinance, directing or authorizing seizure of movable property, has obtained entrance into a house or other building, he may unfasten and open the door of any room in which he has reason to believe any such property to be.

Person executing process always to have writ with him or copy.

368. The person employed in carrying into effect any process of execution against either person or property shall always have with him the writ, warrant, or mandate of execution, or a copy of the same authenticated by the Fiscal or Deputy Fiscal, which shall, if required, be produced and shown to the party against whom, or against whose property, it is sought to be put in force.

Body of person to be arrested must be seized or touched.

369. In all civil cases where process of execution may issue against the person of a party, it shall be necessary, in order to constitute an arrest, that the body of the person to be arrested shall be actually seized or touched by the officer executing the process, unless such person express his acquiescence in the arrest without being so seized or touched.

Fiscals return of writ or precept.

370.

(1) Every Fiscal or Deputy Fiscal shall, on the receipt of any process, note thereon the day he received the same, and on the service or execution thereof the date and mode of such service or execution.

(2) When the writ of execution or precept for service has been carried into effect, or on the day appointed in the writ or precept for the return thereof, whichever date shall first occur, the Fiscal or Deputy Fiscal shall return the writ or precept to the court from which it issued with his report of what has been done under it.

Report to be accompanied by affidavit to be attached as an exhibit.

371. The report of the Fiscal or Deputy Fiscal constituting his return to the writ of execution or to the precept for service of any process shall be fair written and shall state concisely the mode in which the process has been served, or the steps which have been taken to effect service; and shall be accompanied by an affidavit made by the officer charged with the duty of executing the process, which affidavit shall set out the facts of the service effected or of the endeavour made by the officer to effect the service. The process and the affidavit shall be attached to the report as exhibits, and shall be referred to therein by means of a distinguishing letter or other mark put upon them, each initialed and dated by the Fiscal.

Power of Fiscal or other person to administer oath therefore.

372. The Fiscal or Deputy Fiscal, or other person specially appointed by the Minister in charge of the subject of Justice in that behalf, is hereby authorized to administer the oath or affirmation which is requisite to the making of the affidavit in the last section mentioned. And every officer who makes a false statement of fact in any such affidavit commits (in addition to any offence of which under the provisions of the Penal Code he may by so doing be guilty) an offence which is punishable as contempt of court.

PART II
OF SUMMARY PROCEDURE
CHAPTER XXIV
OF SUMMARY PROCEDURE
Summary procedure by petition.


[51, Law 20 1977.]

373. Every application to the court, or action, of summary procedure shall be instituted upon a duly stamped written petition presented to court by the applicant.

Form of petition.


[ 52, Law 20 1977.]

374. The petition shall be distinctly written upon good and suitable paper, and shall contain the following particulars :-

(a) the name of the court and date of presenting the petition;

(b) the name, description, and place of abode of the petitioner or petitioners;

(c) the name, description, and place of abode of the respondent or respondents;

(d) a plain and concise statement of the facts constituting the ground of the application and its circumstances, and of the petitioner’s right to make it. Such statement shall be set forth in duly numbered paragraphs;

(e) a prayer for the relief or order which the petitioner seeks.

If incidental to an action, petition to be entitled therein.

375. If the application is instituted in the course of, or as incidental to, a pending action, whether of regular or summary procedure, the petition shall be headed with a reference to its number in the court, and the names of the parties thereto, and shall be filed as part of the record of such action, and all proceedings taken and orders made on such petition shall be duly entered in the journal required to be kept by section 92.

Affidavits and exhibits to be attached to petition.

376. With the petition, and so far as conveniently can be attached thereto, shall be exhibited such affidavits, authenticated copy records, processes, or other documentary evidence as may be requisite to furnish prima facie proof of the material facts set out or alleged in the petition, or the court may in its discretion permit or direct the petitioner to adduce oral evidence before the court for this purpose, which shall be taken down by the court in writing.

If grounds are sufficient, order may be nisi, or interlocutory.

377. If the court is satisfied on the evidence exhibited or adduced that the material facts of the petition are prima facie established or is of opinion that on the footing of these facts the petitioner is entitled to the remedy, or to the order in his favour, for which the petition prays, or any part thereof, then the court shall accordingly make either-

(a) an order nisi, conditioned to take effect in the event of the respondent not showing cause against it on a day appointed by the order for that purpose; or

(b) an interlocutory order appointing a day for the determination of the matter of the petition, and intimating that the respondent will be heard in opposition to the petition if he appears before the court for that purpose on the day so appointed.

Order as to costs.

378. In the alternative (a) of section 377 the order nisi may comprise an order against the respondent, or any of the respondents, to pay the costs of the petitioner.

Form of order.

379. In either of the alternatives (a) and (b) of section 377 the order made shall be put into writing, and shall contain a prefatory recital of the petition, and of the exhibits and other evidence adduced in support thereof. And a copy of the order together with a copy of the petition shall be served upon the respondent by the Fiscal in Service on the manner and subject to the rules respondent hereinbefore prescribed for the service of the summons in a regular action.

If grounds are insufficient petition to be refused.

380. If the court is not satisfied on the evidence exhibited or adduced that the material facts of the petition are prima facie established or is of opinion that on the footing of those facts the petitioner is not entitled to the relief which he asks, then in either case the court shall refuse the petition.

Petition and order thereon to be filled.

381. The petition, with its exhibits, adduced evidence, and the order made thereon, shall be filed in court whether the order is in the alternative (a) or (b) of section 377, or is an order refusing the petition.

Non- appearance of petitioner on day appointed.

382. If on the day appointed in an order made under section 377 for the determination of the matter of the petition, the petitioner does not appear before the court either in person or by his registered attorney to support the petition, the court shall dismiss the petition, and shall have power to make such order for the payment of costs by the petitioner to the respondent as to the court shall seem just.

When court may take order nisi absolute.

383.

(1) If on such day the petitioner appears, and the respondent does not appear, and if the court is satisfied by the affidavit of the serving officer, stating the fact of the service, or by oral evidence, that the order has been duly served upon the respondent in time reasonably sufficient to enable him to appear, then if the order is an order nisi made under (a) of section 377, the court shall make it absolute, and shall pass no other order adverse to the respondent; but otherwise it shall make such order within the prayer of the petition as it shall consider right on the facts proved :

Provided, however, that in the latter case the court shall make no order to pay costs against the respondent, except in cases where the prayer of the petition expressly asks for the costs of the application, and the court thinks it fit that the respondent should pay them.

(2) Nothing in this section shall prevent the court from dismissing the petition at this stage in the absence of the respondent, if it sees reason to think that the order ought not to have issued in the first instance.

Proceedings where both parties appear.

384. If on such day both the petitioner and the respondent appear, the proceedings on the matter of the petition shall commence by the respondent in person, or by his registered attorney, stating his objections, if any, to the petitioner’s application; and the respondent shall then be entitled to read such affidavits or other documentary evidence as may be admissible, or by leave of the court to adduce oral evidence in support of his objections, or to rebut and refute the evidence of the petitioner:

Provided that no affidavit or other documentary evidence shall be so read without express leave of court, unless a copy of the document shall have been served on the petitioner or his registered attorney at least forty eight hours before the day when the matter of the petition comes on to be heard and determined; and the oral evidence shall be taken down in writing by the Judge.

Right to reply.

385. In the event of the respondent stating objections to the application, and not otherwise, and after the respondent’s evidence, if any, shall have been read or given, the petitioner shall be entitled by way of reply to comment upon the respondent’s case.

Additional evidence when admitted

386. When the respondent’s evidence has been taken, it shall be competent to the court, on the request of the petitioner, to adjourn the matter to enable the petitioner to adduce additional evidence; or, if it thinks necessary, it may frame issues of fact between the petitioner and respondent, and adjourn the matter for the trial of these issues by oral testimony. And on the day to which the matter is so adjourned, the additional evidence shall be adduced, and the issues tried in conformity with, as nearly as may be, the rules hereinbefore prescribed for the taking of evidence at the trial of a regular action.

Final order.

387. The court, after the evidence has been duly taken and the petitioner and respondent have been heard either in person or by their respective attorneys-at-law or recognized agents, shall pronounce its final order in the matter of the petition in open court, either at once or on some future day, of which notice shall be given in open court at the termination of the trial.

Endorsement on order nisi.

388.

(1) The final order so pronounced may be endorsed on the order nisi or on the interlocutory order, as the case may be.

(2) In the case of the order nisi, the final order, if endorsed, will be simpliciter either in the shape of ” order discharged ” or of ” order made absolute “:

Provided that an order nisi, if it consists of separable parts, may be discharged in part and made absolute in part; and nothing herein enacted shall prevent any order being made by consent of the petitioner and respondent on the footing of the order nisi.

(3) In the case of the interlocutory order, the court may make such order within the prayer of the petition as it shall consider right on the facts proved, and it may make any such order upon the petitioner and respondent for the payment of costs as to the court shall seem just.

Final order made on non-appearance of respondent, not appealable, but may be set aside.

389. No appeal by a respondent shall lie against any final order which has been made, in the case of the respondent’s non- appearance, on the footing of either an order nisi or an interlocutory order in the matter of a petition; but it shall be competent to the court, within a reasonable time after the passing of such order, to entertain an application in the way of summary procedure instituted by any respondent against whom such order has been made, to have such final order set aside upon the ground that the applicant had been prevented from appearing after notice of the order nisi or interlocutory order by reason of accident or misfortune, or that such order nisi or interlocutory order had never been served upon him. And if the ground of such application is duly established to the satisfaction of the court, as against the original petitioner, the court may set aside the final order complained of upon such terms and conditions as the court shall consider it just and right to impose upon the applicant, and upon the final order being so set aside, the court shall proceed with the hearing and determination of the matter of the original petition as from the point at which the final order so set aside was made.

Parties to an action of summary procedure.

390. In an application, or action, of summary procedure the persons, petitioning or respondent, are the parties to the action.

Journal in an action of summary procedure.

391. On the institution of an application of summary procedure which is not made in, or incidental to, any already pending action, the court shall commence and keep a journal entitled as of the matter of the application, according to the rules prescribed in section 92, and this journal so kept shall be the record of the matter of the application.

PART III
INCIDENTAL PROCEEDINGS
CHAPTER XXV
OF THE CONTINUATION OF ACTIONS AFTER ALTERATION OF A PARTY’S STATUS
On death of a party action does not abate if right to sue survives.

392. The death of a plaintiff or defendant shall not cause the action to abate if the right to sue on the cause of action survives.

On death of one out of more plaintiffs or defendants than one, if right to sue survive to or against the rest, action to proceed.

393. If there be more plaintiffs or defendants than one and any of them dies, and if the right to sue on the cause of action survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the court shall, on application in the way of summary procedure, make an order to the effect that the action do proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants.

If, on death of one of several plaintiffs, the right to sue survives to the rest jointly with legal representative of deceased, legal representative may be made plaintiff.

394.

(1) If there are more plaintiffs than one, and any of them dies, and if the right to sue does not survive to the surviving plaintiff or plaintiffs alone, but survives to him or them and the legal representative of the deceased plaintiff jointly, the court may cause the legal representative, if any, of the of deceased plaintiff to be made a party, and shall thereupon cause an entry to that effect to be made on the record and proceed with the action.


[53, Law 20 of 1977.]

(2) For the purposes of this Chapter –

” estate” means the gross value of the estate of the deceased ; and

” legal representative ” means an executor or administrator, or in the case of an estate below the value of twenty thousand rupees, the next of kin who have adiated the inheritance.

On death of sole plaintiff, legal representative may be substituted.

395. In case of the death of a sole plaintiff or sole surviving plaintiff the legal representative of the deceased may, where the right to sue survives, apply to the court to have his name entered on the record in place of the deceased plaintiff, and the court shall thereupon enter his name and proceed with the action.

If no application is made by legal representative action may be declared to abate.

396. If no such application be made to the court by any person claiming to be the legal representative of the deceased plaintiff, the court may pass an order that the action shall abate, and award to the defendant the costs which he may have incurred in defending the action, to be recovered from the estate of the deceased plaintiff; or the court may, if it think proper, on the application of the defendant, and upon such terms as to costs or otherwise as it thinks fit, pass such other order as it thinks fit for bringing in the legal representative of the deceased plaintiff or for proceeding with the action in order to a final determination of the matter in dispute, or for both those purposes,

In case of dispute, court to decide who is legal representative.

397. In the event of any dispute arising as to who is the legal representative of a deceased plaintiff, it is competent to the court either to stay the action until the question has been decided in another action, or to decide at once, as between the parties before it, who shall be admitted to be such legal representative for the purpose of prosecuting the action. And this question shall in such case be dealt with and tried by the court as an issue preliminary to the trial of the merits of the action.

Of substitution of legal representative of deceased defendant.

398.

(1) If there be more defendants than one, and any of them die before decree and the right to sue on the cause of action does not survive against the surviving defendant or defendants alone, and also in case of the death of a sole defendant, or sole surviving defendant, where the right to sue survives, the plaintiff may make an application to the court, specifying the name, description, and place of abode of any person whom he alleges to be the legal representative of the deceased defendant, and whom he desires to be made the defendant in his stead. The court shall thereupon, on being satisfied that there are grounds therefore, enter the name of such representative on the record in the place of such defendant, and shall issue a summons to such representative to appear on a day to be therein mentioned to defend the action, and the case shall thereupon proceed in the same manner as if such representative had originally been made a defendant, and had been a party to the former proceedings in the action:

Provided that the person so made defendant may object that he is not the legal representative of the deceased defendant, or may make any defence appropriate to his character as such representative.

(2) The legal representative of a deceased defendant may apply to have himself made a defendant in place of a deceased defendant, and the provisions of this section, so far as they are applicable, shall apply to the application and to the proceedings and consequences ensuing thereon.

Action not abated by marriage of female party.

399.

(1) The marriage of a female plaintiff or defendant shall not cause the action to abate, but the action may, notwithstanding, be proceeded with to Judgment; and where the decree is against a female defendant, it may thereupon be executed against her alone.

(2) If the case is one in which the husband is by law liable for the debts of his wife, the decree may, with the permission of the court, be executed against the husband also; and in case of judgment for the wife, execution of the decree may, with such permission, be issued upon the application of the husband where the husband is by law entitled to the subject-matter of the decree.

Effect of bankruptcy of plaintiff.

400. The bankruptcy or insolvency of a plaintiff in any action which his assignee might maintain for the benefit of his creditors shall not bar the action, unless such assignee declines to continue the action and to give security for the costs thereof, within such time as the court may order,

When assignee does not continue action.

401. If the assignee neglects or refuses to continue the action and to give such security within the time so ordered, the defendant may apply for the dismissal of the action on the ground of the plaintiffs bankruptcy or insolvency, and the court may dismiss the action and award to the defendant the costs which he has incurred in defending the same, to be proved as a debt against the plaintiffs estate.

When court itself may order action to abate.

402. If a period exceeding twelve months in the case of a District Court or Family Court, or six months in a Primary Court, elapses subsequently to the date of the last entry of an order or proceeding in the record without the plaintiff taking any steps to prosecute the action where any such step is necessary, the court may pass an order that the action shall abate.

No fresh action to be brought where action has abated; but court may set aside order.

403. When an action abates or is dismissed under this Chapter, no fresh action shall be brought on the same cause of action. But the plaintiff or the person claiming to be the legal representative of a deceased or insolvent plaintiff may, within such period of time as may seem to the court under the circumstances of the case to be reasonable, apply for an order to set aside the order for abatement or dismissal; and if it be proved that he was prevented by any sufficient cause from continuing the action the court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.

Continuation of action in other cases of assignment of party’s interest.

404. In other cases of assignment, creation, or devolution of any interest pending the action, the action may, with the leave of the court, given either with the consent of all parties or after service of notice in writing upon them, and hearing their objections, if any, be continued by or against the person to whom such interest has come, either in addition to or in substitution for the person from whom it has passed, as the case may require.

Applications under this Chapter how to be made.

405. The application under section 398 may be made ex parte, but in all other applications for the exercise of the discretion of the court under this Chapter all the parties to the action, not being the applicants, or such of them as may be affected by the order sought, must be made respondents on the face of the application.

CHAPTER XXVI
OF THE WITHDRAWAL AND ADJUSTMENT OF ACTION
Withdrawal and adjustment of action.

406.

(1) If, at any time after the institution of the action, the court is satisfied on the application of the plaintiff-

(a) that the action must fail by reason of some formal defect, or

(b) that there are sufficient grounds for permitting him to withdraw from the action or to abandon part of his claim with liberty to bring a fresh action for the subject-matter of the action, or in respect of the part so abandoned,

the court may grant such permission on such terms as to costs or otherwise as it thinks fit.

(2) If the plaintiff withdraw from the action, or abandon part of his claim, without such permission, he shall be liable for such costs as the court may award, and shall be precluded from bringing a fresh action for the same matter or in respect of the same part.

(3) Nothing in this section shall be deemed to authorize the court to permit one of several plaintiffs to withdraw without the consent of the others.

Permission to bring fresh action not to affect prescription.

407. In any fresh action instituted on permission granted under the last preceding section, the plaintiff shall be bound by the law of prescription or limitation in the same manner as if the first action had not been brought.

Adjustment of actions out of court.

408. If an action be adjusted wholly or part by any lawful agreement or compromise, or if the defendant satisfy the plaintiff in respect to the whole or any part of the matter of the action, such agreement, compromise, or satisfaction shall be notified to the court by motion made in presence of, or on notice to, all the parties concerned, and the court shall pass a decree in accordance therewith, so far as it relates to the action, and such decree shall be final, so far as relates to so much of the subject-matter of the action as is dealt with by the agreement, compromise, or satisfaction.

CHAPTER XXVII
OF PAYMENT OF MONEY INTO COURT
Payment of money into court.

409. The defendant in any action brought to recover a debt or damage may, at any stage of the action, deposit in court such sum of money as he considers a satisfaction in full of the plaintiffs claim.

Notice thereof.

410. Notice in writing of the deposit shall be given by the defendant to the plaintiff, and the amount of the deposit shall (unless the court otherwise directs) be paid out of court to the plaintiff on his application.

Interest on deposit not allowed to plaintiff after notice.

411. No interest shall be allowed to the plaintiff on any sum deposited by the defendant from the date of the receipt of such notice, whether the sum deposited be in full of the claim or fall short thereof.

Procedure where plaintiff accepts payment in part satisfaction of his claim.

412. If the plaintiff accepts such amount only as satisfaction in part of his claim, he may prosecute his action for the balance; and if the court eventually decides that the deposit by the defendant was a full satisfaction of the plaintiffs claim, the plaintiff must pay the costs of the action incurred after the deposit and the costs incurred previous thereto, so far as they were caused by excess in the plaintiffs claim.

Procedure where plaintiff accepts payment in full satisfaction of his claim.

413. If the plaintiff accepts such amount as satisfaction in full of his claim, he shall present to the court a statement to that effect, embodied in a motion for judgment, and the court shall pass judgment accordingly, and in directing by whom the costs of each party are to be paid the court shall consider which of the parties is most to blame for the litigation.

Illustrations

(a) A owes B one hundred rupees. B sues A for the amount, having made no demand for payment, and having no reason to believe that the delay caused by making a demand would place him at a disadvantage. On the plaint being filed, A pays the money into court. B accepts it in full satisfaction of his claim, but the court should not allow him any costs, the litigation being presumably groundless on his part.

(b) B sues A under the circumstances mentioned in illustration (a). On the plaint being filed. A disputes the claim. Afterwards A pays the money into court. B accepts it in full satisfaction of his claim. The court should also give B his costs of action, A’s conduct having shown that the litigation was necessary.

(c) A owes B one hundred rupees, and is willing to pay him that sum without action. B claims one hundred and fifty rupees, and sues A for that amount. On the plaint being filed, A pays one hundred rupees into court, and disputes only his liability to pay the remaining fifty rupees. B accepts the one hundred rupees in full satisfaction of his claim. The court should order him to pay A’s costs.

Money must be actually paid.

414. When a defendant by his answer or any party to an action by petition professes to pay money into court, or when a defendant by his answer sets up a tender of any sum of money before action brought, the answer or the petition shall not be received or filed by the court unless either the sum of money so professed to have been paid into court, or so alleged to have been tendered, is actually paid into court, or the requisite steps for the purpose are taken by the defendant or other party, as the case may be.

This Chapter to apply to any party.

415. The enactments of this Chapter shall apply, mutatis mutandis, to the case of payment of money into court made by any party to the action in satisfaction of the claim of any other party.

CHAPTER XXVIII
OF SECURITY FOR COSTS
Security for costs where plaintiff resident out of Sri Lanka.


[54, Law 20 of 1977.]

416. If at the institution, or at any subsequent stage, of an action, it appears to the court that a sole plaintiff is, or (when there are more plaintiffs than one) that all the plaintiffs are, residing outside Sri Lanka, the court may in its discretion, and either of its own motion or on the application of any defendants, order the plaintiff or plaintiffs, within a time to be fixed by the order, to give security for the payment of all costs incurred and likely to be incurred by any defendant.

Security for costs where defendant resident out of Sri Lanka.


[54, Law 20 of 1977.]

417. If at the institution, or at any subsequent stage, of an action, it appears to the court that the defendant, or (where there are more defendants than one) that any defendant, is residing outside Sri Lanka, the court may in its discretion, and either of its own motion or on the application of such defendant, order the plaintiff or plaintiffs, within a time to be fixed by the order, to give security for the payment of all costs incurred and likely to be incurred by such defendant.

If security not furnished when ordered, action may be dismissed.

418.

(1) In the event of such security not being furnished within the time so fixed, the court shall dismiss the action, unless the plaintiff or plaintiffs be permitted to withdraw therefrom under the provisions of section 406, or show good cause why such time should be extended, in which case the court may extend it.

Dismissal may be set aside.

(2) When an action is dismissed under this section the plaintiff may within thirty days, and after due notice in writing to the defendant, apply for an order to set the dismissal aside, and if it is proved to the satisfaction of the court that he was prevented by any sufficient cause from furnishing the security within the time allowed, the court shall set aside the dismissal upon such terms as to security, costs, or otherwise as it thinks fit, and shall appoint a day for proceeding with the action.

What amounts to residing out of Sri Lanka.


[55. Law 20 of 1977.]

419. Whoever leaves, or is about to leave, Sri Lanka under such circumstances as to afford reasonable probability that he will not be forthcoming whenever he may be called upon to pay costs, shall be deemed to be residing outside Sri Lanka within the meaning of section 416 or 417.

CHAPTER XXIX
OF COMMISSIONS A.-COMMISSIONS TO EXAMINE WITNESSES
Commission to examine sick person, & c, within jurisdiction.

420. Any court may in any action issue a commission for the examination on interrogatories or otherwise, and on oath or affirmation, of persons resident within the local limits of its jurisdiction who are from sickness or infirmity unable to attend the court, or of women who, according to the customs and manners of the country, ought not to be compelled to appear in public.

To whom may commission issue.

421. The commission for the examination of a person who resides within the local limits of the jurisdiction of the court issuing the same may be issued to any person whom the court thinks fit to execute the same.

Commission to examine in other cases.

422.

(1) Any court may in any action issue a commission for the examination of-

(a) any person resident beyond the local limits of its jurisdiction;

(b) persons who are about to leave such limits before the date on which they are required to be examined in court; and

(c) civil and military officers of Government who cannot in the opinion of the Judge attend the court without determent to the public service; and

(d) Women who, according to the customs and manners of the country, ought not to be compelled to appear in public.

To whom may commission issue.

(2) Such commission shall ordinarily be issued to any court, except the Supreme Court., the Court of Appeal and the High Court, within the local limits of whose jurisdiction such person resides, and which can most conveniently execute the same :

Provided that, under special circumstances, the commission may be directed to any person whom the court issuing the commission thinks fit to appoint.

When may court issue commission to examine person outside Sri Lanka.

423. When any court to which application is made for the issue of a commission for the examination of a person residing at any place not within Sri Lanka is satisfied that his evidence is necessary, the court may issue such commission.

Court to execute the commission.

424. Every court receiving a commission for the examination of any person shall examine him pursuant thereto.

Return thereof.

425. After the commission has been duly executed, it shall be returned, together with the evidence taken under it, to the court out of which it issued, unless the order for issuing the commission has otherwise directed, in which case the commission shall be returned in terms of such order; and the commission and the return thereto, and the evidence taken under it, shall (subject to the provisions of the next following section) be recorded in the action.

Evidence taken under commission when admissible.

426. Evidence taken under a commission shall not be read as evidence in the action without the consent of the party against whom the same is offered, unless-

(a) the person who gave the evidence is beyond the jurisdiction of the court, or dead, or unable from sickness or infirmity to attend to be personally examined ; or is a person whom the court, in accordance with the customs and manners of the country, sees reason to exempt from personal appearance in court ; or

(b) the court in its discretion, for good cause to be assigned by it, dispenses with the proof of any of the circumstances mentioned in the last preceding section and authorizes the evidence of any person being read as evidence in the action, notwithstanding proof that the cause for taking such evidence by commission has ceased at the time of reading the same.

Foreign courts to which provisions apply.


[56, Law 20 of 1977.]

427. The provisions hereinbefore contained as to the execution and return of commissions shall apply to commissions issued by the courts of any foreign country recognized by the Government of Sri Lanka.

B.-COMMISSIONS FOR LOCAL INVESTIGATIONS
Commission to make local investigation.

428. In any action or proceeding in which the court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, and the same cannot be conveniently conducted by the Judge in person, the court may issue a commission to such person as it thinks fit, directing him to make such investigation and to report to the court.

Return thereof.

429. The commissioner, after such local inspection as he deems necessary, and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing, subscribed with his name, to the court.

C-COMMISSIONS TO EXAMINE ACCOUNTS
Commission to examine accounts.

430. In any action in which an examination or adjustment of accounts is necessary, the court may issue a commission to such person as it thinks fit, directing him to make such examination.

Court to furnish instructions.

431. The court shall furnish the commissioner with such part of the proceedings of the action and such detailed instructions as appear necessary, and the instructions shall distinctly specify whether the commissioner is merely to transmit the proceedings which he may hold on the inquiry, or also to report his own opinion on the point referred for his examination.

GENERAL PROVISIONS
Evidence taken on commission shall be filed and recorded in the action.

432.

(1) The commission in every case within this Chapter shall be entitled as in the action, whether of regular or summary procedure, in which it issued, and on its return shall, with all the proceedings, evidence, and documents, if any, taken therein, be filed and recorded as of that action. Commissioner matters maybe examined personally.

Commissioner may be examined personally.

(2) The report of the commissioner or commissioners in each case within (B) and (C), and the evidence taken by a commissioner (but not the evidence without the report) shall be evidence in the action; but the court, or, with the permission of the court, any of the parties to the action, may examine the commissioner personally in open court touching any of the referred to him, or mentioned in his report, or as to the manner in which he has made the investigation or conducted his proceedings.

Court may order payment into court of expense.

433. Before issuing any commission under this Chapter the court may order such sum (if any) as it thinks reasonable for the expenses of the commission, to be paid into court by the party at whose instance or for whose benefit the commission is issued.

Powers of commissioners.

434. Any commissioner appointed under this Chapter shall have authority to administer an oath or affirmation, and may, unless otherwise directed by the order of appointment-

(a) examine the parties themselves and any witness whom they or any of them may produce, and any other person whom the commissioner thinks proper to call upon to give evidence in the matter referred to him:

(b) call for and examine documents and other things relevant to the subject of inquiry;

(c) at any reasonable time enter upon or into any land or building mentioned in the order.

Provisions of this Ordinance as to witnesses to apply.

435. The provisions of this Ordinance relating to the summoning, attendance, and examination of witnesses, and to the remuneration of, and penalties to be imposed upon, witnesses, shall apply to persons required to give evidence or to produce documents under this Chapter, whether the commission in execution of which they are so required has been issued by a court situate within, or by a court situate beyond, the limits of Sri Lanka.

Parties should appear before commissioner.

436. Whenever a commission is issued under this Chapter the court shall direct that the parties to the action shall appear before the commissioner in person or by their recognized agents or registered attorneys. If the parties do not so appear, the commissioner may proceed ex parte.

AFFIDAVITS
Evidence on affidavit.

437. Whenever any order has been made by any court for the taking of evidence on affidavit, or whenever evidence on affidavit is required for production in any application or action of summary procedure, whether already instituted or about to be instituted, an affidavit or written statement of facts conforming to the provisions of section 181 may be sworn or affirmed to by the person professing to make the statement embodied in the affidavit before any court or Justice of the Peace or Commissioner for Oaths within the local limits of whose jurisdiction he is at the time residing, and the fact that the affidavit appears to be entitled in an action in a competent court shall be sufficient authority to such court or Justice of the Peace or Commissioner to administer the oath or affirmation.

Affidavit to be duly entitled and to be signed by the declarant.

438. Every affidavit shall be entitled as in the court and action in which it is to be used, and shall be signed by the declarant in the presence of the court, Justice of the Peace, or Commissioner before whom it is sworn or affirmed.

Case of illiterate person.

439. In the event of the declarant being a blind or illiterate person, or not able to understand writing in the language of the court, the affidavit shall at the same time be read over or interpreted to him in his own language, and the jurist shall express that it was read over or interpreted to him in the presence of the court. Justice of the Peace, or Commissioner, and that he appeared to understand the contents; and also that he made his mark or wrote his signature in the presence of the court, Justice of the Peace, or Commissioner. And when a mark is made instead of a signature, the person who writes the marksman’s name against the mark shall also sign his name and address in the presence of the court. Justice of the Peace, or Commissioner.

Alteration of affidavit.

440. Every affidavit must be fairly written, and must exhibit no erasures or blotting or blanks; if any alteration is needed to be made in the original writing before it is sworn or affirmed to, every excision of a word, or letter, or figure shall be made by so drawing a line through it as to leave the word, letter, or figure still legible; and every added word, letter, or figure shall be added by interlineations, not by superposition or alteration; and every excision and interlineations shall be initialed by the Judge, Justice of the Peace, or Commissioner before whom the affidavit is affirmed or sworn.

CERTIFIED COPIES [§57, Law 20 of 1977.]
Issue of certified copies of statements or complaints made to, or of plans or sketches prepared by, police officers or inquirers and the production of such certified copies.


[58, Law 20 of 1977.]

440A.

(1) Where a party to any proceedings in a civil court requires for the purpose of such proceedings a certified copy of any complaint or statement made to a police officer, or an inquirer, whether in the course of any investigation or otherwise, or of any plan, or sketch prepared by a police officer, or an inquirer, on information furnished by any person or persons, such party shall, upon the payment by such party to the appropriate authority of the usual charges, be entitled to obtain a certified copy of such complaint, statement, plan or sketch, as the case may be; and the court, upon application made in that behalf, may direct the appropriate authority to issue such certified copy.

(2) Notwithstanding anything to the contrary in any other law, a certified copy of any complaint, statement, plan or sketch obtained under the preceding subsection by a party to any proceedings in a civil court, may, without the police officer or inquirer to whom the complaint or statement was made, or by whom the plan or sketch was prepared being called as a witness, be produced in such proceedings by such party in proof of the fact that the complaint or statement was made, or that the information on which the plan or sketch was prepared was furnished to such police officer or inquirer by any person or persons, if the person by whom the complaint or statement was made or every person who furnished the information on which the plan or sketch was prepared has deposed to the fact of having made such complaint or statement or of having furnished such information, as the case may be:

Provided however, that the court may of its own motion, or upon application made by any party to such proceedings, require the production of the book in which such complaint or statement was first recorded or the original of such plan or sketch, as the case may be, or require that the person to whom such complaint or statement was made, or by whom such plan or sketch was prepared, be summoned as a witness.

(3) In the preceding subsections-

” appropriate authority “-

(a) in relation to any information or statement recorded in an information book, kept by an officer in charge of a police station, means such officer;

(b) in relation to any plan or sketch prepared by a police officer attached to a police station, means the officer in charge of that police station; and

(c) in relation to any information or statement recorded in an information book kept by an inquirer for any area or any plan or sketch prepared by an inquirer for any area means the inquirer for such area;

” inquirer ” and ” police officer ” shall have the same meaning as in the Code of Criminal Procedure Act.

PART IV
ACTIONS IN PARTICULAR CASES
CHAPTER XXXI*
ACTIONS BY OR AGAINST THE STATE, OR MINISTERS, DEPUTY MINISTERS, OR PUBLIC OFFICERS
Actions by or against the state.


[60, Law 20 of 1977]

456.

(1) All actions by or against the state shall be instituted by or against (as the case may Attorney-General.

(2) In actions by the State instituted by the Attorney-General, instead of inserting in the plaint the name and description and place of abode of the plaintiff, it shall be sufficient to insert the words “the Attorney-General”.

(3) Attorney-General does not in this section include the Solicitor-General, the Additional Solicitor-General, a Deputy Solicitor-General, or any State Counsel.

Service of a process.

457. In any action to which the State is a party, all processes of court issuing against the State shall be served upon the Attorney-General.

Attorney- General to have reasonable time to appear.

458. The court, in fixing the day for the Attorney-General to answer to the plaint, shall allow a reasonable time for the necessary communication with the Government through the proper channels, and may extend the time at its discretion.

Service on public officer.

459. Where the defendant is a public officer, the court may send a copy of the summons to the head of the office in which the defendant is employed, for the purpose of being served on him, if it appear to the court that the summons may be most conveniently so served.

Public officer may apply for time to answer.

460. If the public officer on receiving the summons considers it proper to make a reference to the Government before answering to the plaint, he may apply to the court to grant such extension of the time fixed in the summons as may be necessary to enable him to make such reference and to receive orders thereon through the proper channel; and the court upon such application may extend the time for so long as appears to be requisite.

Attorney-General, Minister, Deputy Minister, and public officer entitled to notice.

461. No action shall be instituted against the Attorney-General as representing the State or against a Minister, Deputy Minister, or public officer in respect of an act purporting to be done by him in his official capacity, until the expiration of one month next after notice in writing has been delivered to such Attorney-General, Minister, Deputy Minister, or officer (as the case may be), or left at his office, stating the cause of action and the name and place of abode of the person intending to institute the action and the relief which he claims; and the plaint in such action must contain a statement that such notice has been delivered or left.

Procedure where no notice has been given under section 461.


[61, Law 20 of 1977]

461A.

(1) Where no notice as required by section 461 has been given prior to the institution of the action, and objection is taken prior to or in the answer that no such notice has been given, the court shall stay further proceedings of the action for a period of one month and may order the plaintiff to pay the defendant such costs as it thinks fit. Where proceedings are stayed under this subsection, the date immediately following the period of one month after the date of the institution of such action shall be deemed to be the date of institution of the action where such date is material for the purpose of determining whether the action is prescribed or not, and such action shall thereafter be proceeded with after such notice has been duly given.

(2) Where after the giving of such notice as required by section 461, the plaint fails to aver the fact of such notice having been given, the court shall permit an amendment of the plaint averring the giving of such notice and if a postponement or adjournment is occasioned in consequence thereof, the court may award such costs as it thinks fit.

(3) No such action as is referred to in section 461 shall be dismissed only for the reason that no notice prior to the institution of action had been given as required by the said section or that a statement that such notice of action has been duly delivered or left has not been averred in the plaint.

Writ against person or property in such action.

462. No writ against person or property shall be issued against the Attorney-General such action in any action brought against the State or in any action in which the Attorney-General is substituted as a party defendant under section 463.

When Attorney-General may intervene.

463. If the Attorney-General undertakes the defence of an action against a Minister, Deputy Minister, or public officer, the Attorney-General shall apply to the court, and upon such application the court shall substitute the name of the Attorney-General as a party defendant in the action.

Where Attorney-General docs not intervene action to proceed as against private party.

464. If such application is not made by the Attorney-General on or before the day fixed in the notice for the defendant to appear and answer to the plaint, the case shall proceed as in an action between private parties, except that the defendant shall not be liable to arrest, nor his property to attachment, otherwise than in execution of a decree.

Minister, Deputy minister or public officer need not appear in person.

465. In an action against a Minister, Deputy Minister, or public officer in respect of such act as aforesaid, the court shall exempt the defendant from appearing in person when he satisfies the court that he cannot absent himself from his duty without detriment to the transaction of any business of Parliament, or Cabinet of Ministers, or to the public service.

CHAPTER XXXIII*
ACTIONS BY AND AGAINST CORPORATIONS AND COMPANIES
Action by or against a corporation, or company.

470. In actions by or against any corporation, or by or against a board or other public body, or any company authorized to sue or be sued, the name and the style of the corporation, board, public body, or company, or of the officer (if any) in whose name any such corporation, board, public body, or company is authorized to sue and be sued, as the case may be, may be inserted as the name of the plaintiff or defendant; and the plaint or answer may be subscribed on behalf of the corporation, board, public body, or company by any member, director, secretary, manager, or other principal officer thereof who is able to depose to the facts of the case; and in any case in which such corporation, board, public body, or company is represented by a registered attorney, shall be subscribed by such registered attorney.

Service on corporation or company.

471. When the action is against a corporation, or against a board or other public body, or a company authorized to sue and be sued in the name of an officer or of a trustee, except in cases where a particular mode of service is directed by law, the summons may be served-

(a) by leaving it at the registered office (if any) of the corporation, board, public body, or company; or

(b) by giving it to the secretary or other principal officer of the corporation, board, public body or company; and the court may in such summons or by special order require the personal appearance of such secretary or other principal officer of the corporation, board, public body, or company who may be able to answer material questions relating to the action.

CHAPTER XXXIV
ACTIONS BY AND AGAINST TRUSTEES, EXECUTORS, AND ADMINISTRATORS
Actions against trustees, executors, and administrators

472. In all actions concerning property vested in a trustee, executor, or administrator, when the contention is between the persons beneficially interested in such property and a third person, the trustee, executor, or administrator shall represent persons so interested ; and it shall not ordinarily be necessary to make them parties to the action. But the court may, if it thinks fit, order them, or any of them, to be made such parties.

All executors & c, made parties.

473. When there are several trustees, should be executors, or administrators, they shall all be made parties to an action by or against one or more of them;

Provided that executors who have not proved their testator’s will, and trustees, executors, and administrators beyond the local limits of the Jurisdiction of the court, need not be made parties.

Executors and administrators liable in costs.

474. In every action brought by an executor or administrator in right of his testator or intestate, such executor or administrator shall, unless the court shall otherwise order, be liable to pay costs to the defendant in case of judgment being entered for the defendant, and in all other cases, in which he would be liable if such plaintiff were suing in his own right upon a cause of action accruing to himself; and the defendant shall have judgment for such costs, and they shall be recovered accordingly.

Husband of executor not to be made party.

475. Unless the court directs otherwise, the husband of a married executrix or administrator shall not be a party to an action by or against her in her representative capacity.

CHAPTER XXXV
ACTIONS BY AND AGAINST MINORS AND PERSONS UNDER OTHER DISQUALIFICATION
Action by minor.

476. Every action by a minor shall be instituted in his name by an adult person who in such action shall be designated in the plaint the next friend of the minor, and may be ordered personally to pay any costs in the action as if he were the plaintiff.

Next friend and guardian ad litem.

477. Every application to the court on behalf of a minor (other than an application under section 487) shall be made in his name by his next friend or his guardian for the action, and shall be so expressed to be made on the face of the application.

Procedure where no next friend.

478.

(1) If a plaint be filed by or on behalf of a minor without a next friend, the defendant may apply to have the plaint taken off the file, with costs to be paid by the registered attorney or other person by whom it was presented.

(2) Such application shall be made on summary procedure by the defendant; and the court after hearing the objections, if any, of the person against whom it is made, may make such order in the matter as it thinks fit.

Court may appoint guardian ad litem.

479. Where the defendant to an action is a minor, the court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the action for such minor, and generally to act on his behalf in the conduct of the case.

No order to affect minor not represented.

480. Every order made in an action or on any application before the court in or by which a minor is in any way concerned or affected without such minor being represented by a next friend or guardian for the action, as the case may be, may be discharged on application made on summary procedure for the purpose ; and, if the registered attorney of the party at whose instance such order was obtained knew, or might reasonably have known, the fact of such minority, it may on such application be discharged with costs to be paid by such registered attorney, provided he was duly made a respondent to the application.

Who may act as next friend.

481.

(1) Any person being of sound mind and full age may be appointed next friend of a minor, provided his interest is not adverse to that of such minor and he is not a defendant in the action.

(2) Such appointment shall be made after application by way of summary procedure supported by affidavit showing the fitness of the person proposed, and also that he has no interest adverse to the minor, and to such application the defendant shall be made respondent. And on the occasion of any such application being made the minor should appear personally in court unless prevented by good cause, such as extreme youth or illness.

On cause shown court may remove next friend.

482. If the interest of the next friend of a minor is adverse to that of such minor, or if he is so connected with a defendant whose interest is adverse to that of the minor as to make it unlikely that the minor’s interest will be properly protected by him or if he does not do his duty, or, pending the action, ceases to reside within Sri Lanka, or for any other sufficient cause, application may be made on summary procedure on behalf of the minor or by a defendant for his removal; and the court (if satisfied of the sufficiency of the cause assigned) may order the next friend to be removed accordingly.

Retirement of next friend.

483.

(1) Unless otherwise ordered by the court, a next friend shall not retire at his own request without first procuring a fit person to be put in his place, and giving security for the costs already incurred.

(2) The application for the appointment of a new next friend shall be on summary procedure supported by affidavit, showing the fitness of the person proposed, and also that he has no interest adverse to the minor, and to such application the defendant shall be made respondent.

Death or removal of next friend.

484. On the death or removal of the next friend of a minor further proceedings shall be stayed until the appointment of a next friend in his place.

Appointment of new next friend.

485. If the registered attorney of such minor omits, within reasonable time, to take steps to get a new next friend appointed, any person interested in the minor or the matter at issue may, on summary procedure, apply to the court for the appointment of one, making the defendant a respondent to the application; and the court may thereupon appoint such person as it thinks fit.

Minor’s right of election on coming of age.

486. A minor plaintiff, or a minor not a party to an action on whose behalf an application is pending, on coming of age, must elect whether he will proceed with the action or application.

Discharge of next friend on minors election to proceed with action.

487.

(1) If he elects to proceed with it, he shall apply for an order discharging the next friend, and for leave to proceed in his Own name.

(2) The title of the action or application shall, upon such order being made, be altered so as to read thenceforth thus: “A. B; late a minor, by C. D., his next friend, but now of full age “.

Procedure on election of sole plaintiff to abandon on payment of costs.

488. If he elects to abandon the action or application he shall, if a sole plaintiff or sole applicant, apply for an order to dismiss the action or application, on repayment of the costs incurred by the defendant, or respondent, or which may have been paid by his next friend.

Application to be ex party.

489. Any application under section 487 or section 488 may be made ex pane: and the affidavit of facts upon which it is based must satisfy the court that the late minor has attained his full age.

Procedure on election of a co-plaintiff to repudiate.

490.

(1) A minor CO-plaintiff on coming of age, and desiring to repudiate the action, must apply to have his name struck out as co-plaintiff; and the court, if it finds that he is not a necessary party, shall dismiss him from the action on such terms as to costs or otherwise as it thinks fit.

(2) The next friend as well as the defendant, shall be served with the petition of application as respondent, and it must be proved by affidavit that the late minor has attained his full age ; the costs of all parties of such application and of all or any proceedings theretofore had in the action shall be paid by such persons as the court directs. If the !ate minor be a necessary party to the action, the court may direct him to be made a defendant.

Procedure when ex-minor applies to have action dismissed as unreasonable or improper.

491.

(1) If any minor on attaining majority can prove to the satisfaction of the court that an action instituted in his name by a next friend was unreasonable or improper, he may, if a sole plaintiff, apply by way of summary procedure to have the action dismissed.

(2) Notice of the application shall be served on all the parties concerned, including the next friend, and the court, upon being satisfied of such unreasonableness or impropriety, may grant the application, and order the next friend to pay the costs of all parties in respect of the application and of anything done in the action.

Minor may in person sue for wages.

492. Nothing in the foregoing sections shall affect the right of any minor to prosecute any proceedings in a Primary Court for any money which may be due to him for wages or piecework, or for work as a servant, artificer, or labourer, in the same manner as if he were of full age.

Application for appointment of guardian ad litem.

493.

(1) An order for the appointment of a guardian for the action may be obtained upon application on summary procedure in the name and on behalf of the minor or by the plaintiff. Such application must be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in question in the action adverse to that of the minor, and that he is a fit person to be so appointed.

(2) On the occasion of such an application being made, the minor ought to appear personally in court unless prevented by good cause, such as extreme youth or illness, from doing so.

When officer of court may be appointed.

494. When there is no other person fit and willing to act as guardian for the action, the court may appoint any of its officers to be such guardian, provided that he has no interest adverse to that of the minor.

Co-defendant maybe appointed.

495. A co-defendant of sound mind and of full age may be appointed guardian for the action, if he has no interest adverse to that of the minor, but neither a plaintiff nor a married woman can be so appointed.

Court may remove guardian and litem.

496. If the guardian for the action of a minor defendant does not do his duty, or if other sufficient ground be made to appear, the court may remove him and may order him to pay such costs as may have been occasioned to any party by his breach of duty.

Death of guardian.

497. If the guardian for the action dies pending such action, or is removed by the court, the court shall appoint a new guardian in his place.

Procedure for execution of decree against minor heir.

498. When the enforcement of a decree or order is applied for against the heir or representative, being a minor, of a deceased party, a guardian for the action of such minor shall be appointed by the court, on an application of summary procedure duly made for this purpose, and the decree- holder shall then serve on such guardian notice of such application.

When court may allow next friend funds for suit.

499. No sum of money or other thing shall be received or taken by a next friend or guardian for the action on behalf of a minor at any time before decree or order, unless he has first obtained the leave of the court, and given security to its satisfaction that such money or other thing shall be duly accounted for to, and held for the benefit of, such minor.

Next friend may not compound action without leave of court.

500.

(1) No next friend or guardian for the action shall, without the leave of the court, enter into any agreement or compromise on behalf of a minor with reference to the action in which he acts as next friend or guardian.

(2) Any such agreement or compromise entered into without the leave of the court shall be voidable against all parties other than the minor.

This Chapter to apply to persons of unsound mind and mentally deficient persons.


[ 13, 53 of 1980.]

501.

(1) The provisions contained in this Chapter shall, mutatis mutandis, apply in the case of persons of unsound mind and mentally deficient persons, adjudged to be so under the provisions of this Ordinance or under any law for the time being in force.

(2) For the purposes of this section, ” persons of unsound mind and mentally deficient persons “, mean persons who have been so adjudged under the provisions of this Ordinance or under any law for the time being in force, or where there has been no such adjudication, persons of whom the court is satisfied, after inquiry, to be of unsound mind or mentally deficient and incapable of managing their own affairs.

Majority, what is.

502. For the purposes of this Chapter, a minor shall be deemed to have attained majority or full age on his attaining the age of twenty-one years, or on marriage, or on obtaining letters of venia aetatis.

CHAPTER XXXVI
ACTIONS BY AND AGAINST PERSONS IN THE NAVAL, MILITARY, OR AIR SERVICE
Actions by or , against persons in the naval, military or air force.

503.

(1) When any officer in the naval military, or air service or any sailor, soldier, or airman actually serving the Government in the capacity of a member of a naval, military, or air force is a party to an action, and cannot obtain leave of absence for the purpose of prosecuting or defending the action in person, he may authorize any person to sue or defend in his stead.

Authority to agent.

(2) The authority shall be in writing, and shall be signed by the party in the presence of-

(a) his commanding officer, or of the next subordinate officer if the party be himself the commanding officer; or

(b) where the party is serving in naval, military, or air force staff employment, the head or other superior officer of the office in which he is employed. Such commanding or other officer shall countersign the authority, which shall be filed in court.

(3) When so filed, the counter-signature shall be sufficient proof that the authority was duly executed, and that the party by whom it was granted could not obtain leave of absence for the purpose of prosecuting or defending the action in person.

Explanation 1

In this Chapter the expression ” commanding officer” means the officer in actual command for the time being of any ship, regiment, corps, detachment, or naval, military, or air depot to which the party belongs.

Agent may sue or defend in person.

504. Any person authorized by such party to prosecute or defend an action in his stead may prosecute or defend it in person in the same manner as such party could do if present; or he may appoint an attorney-at-law to prosecute or defend the action on behalf of such party.

Service of process in such cases.

505. Processes served upon any person authorized by any party under section 503, or upon any attorney-at-law appointed as aforesaid by such person to act for or on behalf of such party, shall be as effectual as if they had been served on the party in person or on his registered attorney ; and no process in the action shall be served upon such party personally without express order of court.

Copy of summons may commanding officer for service.

506.

(1) When any naval, military, or air officer or any sailor, soldier, or airman is a defendant, a copy of the summons shall be sent by the Fiscal to his commanding officer for the purpose of being served on him.

(2) The officer to whom such copy is sent shall cause it to be served on the person to whom it is addressed, if practicable, and shall return it to the Fiscal with the written acknowledgment of such person endorsed thereon.

(3) If from any cause the copy cannot be so served, it shall be returned to the Fiscal by whom it was sent, with information of the cause which has prevented the service.

Warrant of arrest may likewise be delivered for execution.

507.

(1) If, in the execution of a decree, a warrant of arrest or other process is to be executed within the limits of a cantonment, garrison, or naval, military, or air station, the officer charged with the execution of such warrant or other process shall deliver the same to the commanding officer.

(2) The commanding officer shall, if the person named therein is by law liable to arrest, back the warrant or other process with his signature, and shall in the case of a warrant of arrest cause such person, if within the limits of his command, to be arrested and delivered to the officer so charged.

CHAPTER XXXVII
ACTIONS OF ACCOUNT
Actions of account.

508. When the claim which is made in the plaint, or is set up in the answer, is such that the action cannot be disposed of, or a complete and final decree made in the matter thereof between the parties without the taking of accounts, or the making inquiry into facts, or the demarcation of land, or the realization of assets, as the case may be, it shall be competent to the court to adjudicate piecemeal upon the matters in issue, and in such adjudications to make interlocutory decrees or orders of a final character between the parties at hearings had by successive adjournments; and, in particular, to take any accounts, and to make an inquiry into facts separately from the remaining matter of the action on a day to be appointed for the purpose, and to issue the necessary directions or commissions for the demarcation of land or realization of assets, and to adjourn the hearing from time to time for further orders or directions, or for final determination, to such dates as may be necessary or convenient to enable the accounts to be taken, the inquiries made, and the demarcation of land or realization of assets, as the case may be, to be effected, in the interval.

Interlocutory order for taking accounts, & c.

509. In any such case the order of adjournment for the purpose of the accounts being taken, inquiries made, or commissions or directions issued, must adjudicate (either by consent or upon admissions of the parties, or upon other sufficient evidence) upon so much of the rights of, or of the fiduciary relations between, the parties, which are at issue in the action, as may suffice to give rise to the liability of the respective parties affected by the order to account, or may serve to render the inquiries, directions, or commissions thereby directed proper and necessary.

Form and scope of order.

510. Every order directing an account to be taken, or giving leave to a party to falsify or to surcharge an account, shall appoint a day for the filing of the account or of the document of falsification or surcharge, and also a subsequent time for the opposing party to file objections thereto, and again a later time for the hearing and determination of the issues between the parties arising out of the objections, and for the finding on the footing of such determination of the state of the account directed to be taken.

The taking of the accounts.

511. The account directed to be taken, before it is filed, must be verified on oath or affirmation by the accounting party. Objections to the account may be filed by any party concerned in the right taking of the accounts and may be directed as well to adding new entries or enhancing existing entries on the debit side of the accounting party, as to falsifying the account given by him in any particular. And the trial of the issues arising out of the objections to the account shall conform, as nearly as may be, in regard to the order and method of proceeding and the taking of evidence, to the rules hereinbefore laid down for the trial of a regular action.

Reasonable care to be taken in appointing the days for the purpose.

512. The day for filing the account directed to be taken, and the times for filing the objections thereto, and for the hearing and determination of the issues arising there out, shall respectively be fixed with a due regard to the circumstances of the matter and the situation of the parties therein, so that reasonable opportunity may be afforded to the accounting party to make out his account, to the opposing party to examine the same and to satisfy himself in respect to its correctness, and to all panics to prepare for trial.

Procedure where party makes default.

513. In the event of the accounting party not duly filing his account, and not satisfying the court that there is just cause for his default, the court shall proceed with the hearing of the matter of the account and adjudicate upon the same on the day appointed therefore by finding the actual state of the account directed to be taken upon such materials as may be furnished by the opposing party:

Provided, nevertheless, that any reasonable extension of time which may be bona fide required by any party, either for filing accounts or objections thereto, or for preparing for trial, may be granted by the court on such terms as it may think proper, if such extension of time be applied for at the earliest possible moment, upon materials showing good and sufficient ground, and upon notice to the other parties concerned.

What provision apply when an order is made in an action for an inquiry.

514. When an order is made in an action for an inquiry into facts, the foregoing rules shall, mutatis mutandis, apply to the making of the order, the filing of the state of facts and of the objections thereto, or counter state of facts, and to the trial of the issues arising there out respectively, so nearly as reasonably may be.

Adjournment of the hearing until after the accounts & c shall have been taken,.

515. When the hearing of an action is adjourned for the intermediate taking of accounts, making of inquiries, or execution of commissions , or of other directory orders, the interval of adjournment shall be adjusted with immediate reference to the proceedings prescribed by the foregoing rules for such interlocutory matter, so as to allow of its being conveniently completed before the resumption of the hearing so adjourned. And the order for adjournment shall include or comprehend the orders and directions requisite under these rules for the taking of the accounts or executing the other matters for which the adjournment is made:

Provided, nevertheless, that any reasonable extension of the time of adjournment which may seem to the court necessary, or which may be bona fide required by any party, in consequence of extension of time being granted for, or of delay in, or prolongation of, the proceedings of the interlocutory matters, or upon other good and sufficient ground shown by proper evidence, may be ordered by the court either on the day to which the hearing is adjourned, or upon any other day, provided reasonable notice of the application to the court for the extension of the time of adjournment be afforded to all parties.

CHAPTER XXXVIII
TESTAMENTARY ACTIONS
Deposit of the will of deceased.

516.

(1) When any person shall die leaving a will in Sri Lanka, the person in of whose keeping or custody it shall have been deposited, or who shall find such will after the testator’s death, shall produce the same to the District Court of the district in which such depository or finder resides, or to the District Court of the district in which the testator shall have died, as soon as reasonably may be after the testator’s death. And he shall also make oath or affirmation, or produce an affidavit (form No. 81, First Schedule) verifying the time and place of death, and stating (if such is the fact) that the testator has left property within the jurisdiction of that or any other, and in that event what, court, and the nature and value of such property; or, if such is the fact, that such testator has left no property in Sri Lanka.

The will so produced shall be numbered and initialled by the Probate Officer and deposited and kept in the record room of the District Court.

(2) In this section, “Probate Officer” means the Registrar of the District Court and includes any other officer generally or specially authorized by the court to exercise powers and perform the duties of a Probate Officer in testamentary proceedings.

Penalty on neglect.

517. Any person liable to produce any will to any court under the provisions of the last preceding section, who shall willfully omit to produce such will, or to furnish the information thereby required, shall be guilty of an offence, and liable to a fine not exceeding one thousand rupees.

Who may apply for probate or administration.


[65, Law 20 of 1977.]

518.

(1) When any person shall die leaving a will under or by virtue of which any property in Sri Lanka is in any way affected, any person appointed executor therein may apply to the District Court of the district within which he resides, or within which the testator resided at the time of his death, or within which any land belonging to the testator’s estate is situate, to have the will proved and to have probate thereof issued to him; also any person interested, either by virtue of the will or otherwise, in having the property of the testator administered, may apply to such court to have the will proved and to obtain grant to himself of administration of the estate with copy of the will annexed.

(2) If any person who would be entitled to administration is absent from Sri Lanka, a grant of letters of administration with or without the will annexed, as the case may require, may be made to the duly constituted attorney of such person.

Probate or administration compulsory where value of estate is or over twenty thousand rupees.


[2,24 of 1969]

519.

(1) Upon any such application being made, and, in every case in which the estate of the testator amounts to or exceeds in value twenty thousand rupees, whether any such application shall have been made or not, it shall be obligatory on the court to, and the court shall, issue probate of the will to the executor or executors named therein; or if there is no executor resident in Sri Lanka competent and willing to act, the court shall issue letters of administration with or without the will annexed, as the case may require, to some person who by the provisions of the last preceding section is competent to apply for the same, or to some other person who, in the opinion of the court, by reason of consanguinity, amount of interest, the safety of the estate, and probability that it will be properly administered, is a proper person to be appointed administrator; and in every such case letters of administration may be limited or not in manner hereinafter provided, as the court thinks fit.

(2) The grant of such letters shall be subject to the rules and regulations hereinafter provided with regard to such grants in other cases; and in the judgment by which such grant is made the court shall adjudicate upon the facts which constitute the grounds of the appointment.


[66, Law 20 of 1977.]

(3) For the purpose of this Chapter ” estate ” shall mean the gross value of the estate of the deceased.

When Public Trustee may be appointed.

520. Where there is no person fit and proper in the opinion of the court to be appointed administrator in manner in the last preceding section provided, or no such person is willing to be so appointed, and not in any other case, the court shall appoint the Public Trustee such administrator.

Requirements when Public Trustee applies for letters of administration.


[68, Law 20 of 1977.]

520A.

(1) Whenever the Public Trustee applies for letters of administration, it shall be sufficient if the petition presented for the grant of such letters states-

(a) the time and place of the death of the deceased to the best of the knowledge and belief of the petitioner;

(b) the names and addresses of the surviving next of kin of the deceased, if known;

(c) the full and true particulars of the property left by the deceased as far as he has been able to ascertain the same;

(d) particulars of the liabilities of the estate, if known.

(2) The Public Trustee shall not be required to file accounts of the property of the deceased unless the court otherwise directs.

Security.


[69, Law 20 of 1977.]

521. In every case in which it is found necessary, whether by reason of such executor as aforesaid not applying for probate, or by reason of there being no executor resident in Sri Lanka competent and willing to act, or by reason of no person who is competent under section 518 to apply for letters of administration so applying, that any such person as is in section 519 mentioned, should be appointed administrator, the court shall take from such person security for the due administration of the estate in manner in section 538 mentioned, and it shall not in any case be competent for the court to dispense with such security under the provisions of section 541.

Duties of public Trustee relating to the administration of estates.


[70, Law 20 of 1977]

522. Whenever the Public Trustee has obtained probate in respect of a will or grant of letters 01 administration in respect of the estate of a deceased person, he shall as far as practicable, comply with the provisions of this Chapter relating to the administration of estates:

Provided that the Public Trustee shall not be required-

(a) to take any oath as executor or administrator;

(b) to furnish any bond or security, but shall be subject to the same liability and dues as if he had given such bond or security;

(c) to make payment or secure the payment of assessed estate duty prior to his undertaking the administration of the estate, but shall eventually make such payment as required by the Estate Duty Ordinance or the Estate Duty Act, as the case may be;

(d) to affix stamps on any document at or about the time of the making of such document; but shall eventually make such payment as required by the Stamp Ordinance;

(e) unless the court otherwise directs, to tender final accounts.

To whom grant in either case should be made.

523. In the case of a conflict of claims to have the will proved and probate or grant of administration issued, the claim of an executor or his attorney shall be preferred to that of all others, and the claim of a creditor shall be postponed to the claim of a residuary legatee or devisee under the will. And in the like case of a conflict of claims for grant of administration where there is intestacy, the claim of the widow or widower shall be preferred to all others, and the claim of an heir to that of a creditor:


[71, Law 20 of 1977]

Provided, however, that the court may for good cause supersede the claim of the widow or widower.

Mode of application and proof in case of a will.

524.

(1) Every application to the District Court to have the will of a deceased person proved shall be made on petition by way of summary procedure, which petition shall set out in numbered paragraphs the relevant facts of the making of the will, the death of the testator, the heirs of the deceased to the best of the petitioner’s knowledge, the details and situation of the deceased’s property, and the grounds upon which the petitioner is entitled to have the will proved ; the petition shall also show whether the petitioner claims as creditor, executor, administrator, residuary legatee, legatee, heir, devisee, or m any and what other character.

(2) If the will is not already deposited in the District Court in which the application is made, it must either be appended to the petition, or must be brought into court and identified by affidavit, with the will as an exhibit thereto, or by parol testimony at the time the application is made.

Application to be made on affidavits

(3) Every person making or intending to make, an application to a District Court under this section to have the will of a deceased person proved, which will is deposited in another District Court, is entitled to procure the latter court to transmit the said will to the court to which application is to be made, for the purpose of such application. Also the application must be supported by sufficient evidence either in the shape of affidavits of facts, with the will as an exhibit thereto, or of oral testimony, proving that the will was duly executed according to law, and establishing the character of the petitioner according to his claim.

(4) The petitioner shall tender with the petition –

(a) the declaration of property referred to in section 30 of the Estate Duty Ordinance or in section 24 of the Estate Duty Act, as the case may be, in triplicate with a certified copy of the will for transmission by court to the Commissioner-General of Inland Revenue;

(b) draft order nisi;

(c) the requisite stamps for the order nisi and service thereof;

(d) draft notice of order nisi in the form No. 84A in the First Schedule ;

(e) proof of payment of the estimated charges to cover the cost of advertising the notice of order nisi in a local newspaper as hereinafter provided; and

(f) the consent in writing of such respondents as consent to his application.

Affidavit of no opposition.

525.

(1) If the petitioner has no reason to suppose that his application will be opposed by any person, he may file with his petition an affidavit to that effect, and may omit to name any person in his petition as respondent.


[73, Law 20 of 1977]

(2) The petitioner shall tender with the petition-

(a) the declaration of property referred to in section 30 of the Estate Duty Ordinance or in section 24 of the Estate Duty Act, as the case may be, in triplicate with a certified copy of the will for transmission by court to the Commissioner-General of Inland Revenue;

(b) draft order absolute;

(c) the requisite stamps for such order absolute;

(d) draft notice of order absolute in the form No. 84B in the First Schedule ; and

(e) proof of payment of the estimated charges to cover the cost of advertising the notice of order absolute in a local newspaper as hereinafter provided.

Court if satisfied with proof, to make order nisi declaring will proved.

526. Upon the application being made, if the court is of opinion that the evidence adduced is sufficient to afford prima facie proof of the due making of the will and of the character of the petitioner, it shall make an order nisi declaring the will to be proved, which order shall be served upon the respondent, if any, and upon such other person as the court shall think fit to direct, and shall come on for final hearing and disposal on a day to be named therein.

Order nisi to direct probate.

527. If the applicant claims as the executor or one of the executors of the will, and asks that probate may be issued to him, the order nisi shall declare that he is executor, and shall direct the issue of probate to him accordingly.

Grant of administration with the copy will annexed.

528. If the applicant claims in any other character than that of executor, and asks that the administration of the deceased’s property be granted to him, then the order nisi shall include a grant to the applicant of a power to administer the deceased’s property according to the will, with a copy of the will annexed.

When court may make order absolute in the first instance.

529.

(1) In the case of an application for probate if no respondent is named in the petition, the court may in its discretion make the order absolute in the first instance,


[74, Law 20 of 1977.]

(2) The notice of such order absolute shall be in the form No. 84B in the First Schedule and shall be advertised in the manner provided in section 532.

Mode of application and proof for grant of administration in absence of a will.


[75, Law 20 of 1977.]

530.

(1) When any person shall die without making a will or where the will cannot be found, every application for grant of administration of his property may be made to the District Court of the district within which the applicant resides, or within which the deceased resided at the time of his death or within which any land belonging to the deceased’s estate is situate. Every such application shall be made on petition by way of summary procedure, which petition shall set out in the numbered paragraphs prescribed by section 524, the relevant facts of the absence of the will, the death of the deceased, and the heirs of the deceased to the best of the petitioner’s knowledge; the petition shall also show the character in which the petitioner claims and the facts which justify his doing so. The application shall also be supported by sufficient evidence, to afford prima facie proof of the material allegations in the petition, and shall name the next of kin of the deceased as respondents.

(2)

(a) The petitioner shall tender with the petition-

(i) the declaration of property referred to in section 30 of the Estate Duty Ordinance or in Section 24 of the Estate Duty Act, as the case may be, in triplicate for transmission by court to the Commissioner-General of Inland Revenue.

(ii) draft order nisi;

(iii) the requisite stamps for the order nisi and service thereof;

(iv) draft notice of order nisi in the form No. 84A in the First Schedule, and (a) proof of payment of the estimated charges to cover the cost of advertising the notice of order nisi in a local newspaper as hereinafter provided.

(b) The petitioner may also tender with the petition the consent in writing of such respondents as consent to his application.

Court declaring petitioner’s order nisi for issue of grant.

531. Upon the application for grant of administration being made, if the court is of opinion that the material allegations of the petition are proved, it shall make an order nisi declaring the petitioner’s status accordingly, and making the grant prayed for, which order shall be served upon the respondent and upon such other persons as the court shall think fit to direct, and shall come on for final hearing and disposal on a day to be named therein.

Court to forward declaration made by me petitioner to the Commissioner-General of Inland Revenue.

531A.

(1) The court shall, upon receipt of the declaration referred to in section 30 of the estate Duty Ordinance, or in section 24 of the Estate Duty Act, as the case may be, forthwith forward to the Commissioner-General of Inland Revenue two copies of such declaration, and where the will has been filed, one copy of the will.

(2) The Assessor shall, within one year after the receipt by him of such particulars as may be necessary to assess the estate duty payable in respect of the estate of the deceased, determine the person or persons by whom the whole or part of such duty is payable and assess the estate duty payable in respect of the estate.

(3) On the payment of the estate duty assessed under the preceding subsection or on such. security as the Commissioner- General of Inland Revenue may deem sufficient being furnished for the payment of such estate duty, such Commissioner- General shall issue a certificate to that effect.

(4) Whenever it appears to an Assessor that the amount which any person is liable to pay as estate duty has been assessed under subsection (2) at less than the appropriate amount, the Assessor may make an additional assessment of the amount which such person is in the opinion of the Assessor liable to pay ; Provided that no such additional assessment shall be made after the expiry of two years from the date of grant of probate or letters of administration.

(5) Nothing in this section shall prevent the Assessor from acting under any such provisions of the Estate Duty Ordinance or of the Estate Duty Act, as the case may be, as are not inconsistent with the provisions of this section.

(6) In this section ” Assessor ” has the same meaning as in the Estate Duty Ordinance or in the Estate Duty Act, as the case may be.

Court to grant probate or letters of administration upon provisional certificate.


[76, Law 20 of 1977.]

531B. Notwithstanding the provisions of section 55 of the Estate Duty Ordinance, or of section 42 of the Estate Duty Act, as the case may be, the court may grant probate or letters of administration, as the case may be, upon production of a provisional certificate under the provisions of subsection (3) of section 531 A.

Notice of order nisi to be advertised.


[77, Law 20 of 1977.]

532. In all cases of application for the grant of the administration of the deceased’s property, whether with or without a will, the court shall, whether a respondent is named in the petition or not, direct notice of the order nisi in the form No. 84A in the First Schedule to be advertised twice in a local newspaper before the day of final hearing, the newspaper to be selected by the court with the object that the notice of the order nisi should come to the knowledge of all persons interested in the administration of the deceased’s property:

Provided that the court may in its discretion direct such other mode of advertisement in lieu of such publication as to it seems sufficient.

At final hearing on objection, court shall frame issues.

533. If on the day appointed for final hearing, or on the day to which it may have been duly adjourned the respondent or any person upon whom the order nisi has been directed to be served, or any person then appearing to be interested in the administration of the deceased’s property, satisfies the court that there are grounds of objection to the application, such as ought to be tried on viva voice evidence, then the court shall frame the issues which appear to arise between the parties, and shall direct them to be tried on a day to be then appointed for the purpose under section 386.

When order nisi shall be made absolute and. When discharged.

534. If at the final hearing, or on the determination of the issues thus framed, it shall appear to the court that the prima facie proof of the material allegations of the petition has not been rebutted, then the order nisi shall be made absolute, and probate or grant of administration with the will annexed, or grant of administration only, as the case may be, shall issue accordingly, subject to the conditions hereinafter prescribed. If, on the other hand, it shall then appear to the court that the prima facie proof of any material allegations in the petition has been rebutted, the order nisi shall be discharged, and the petition dismissed. And in the event of the respondent or objector having at such hearing or trial of issues established his right to have probate or grant of administration of the deceased’s estate issued to him instead of to the petitioner, then the court shall further make an order to that effect in his favour:

Provided, however, that the dismissal of the petition shall not be a bar to a renewal of the application by the petitioner as long as grant either of probate of the deceased’s will, or of administration of his property, shall not have been made, either on the occasion of this application or subsequently thereto, to some other person than the petitioner.

Procedure where a corporation is appointed executor under a will.


[78, Law 20 of 1977]

534A.

(1) Where a corporation is appointed executor under a will either alone or jointly with another person, the court may grant probate to such corporation either solely or jointly with such other person as the case may require, and the corporation may act as executor accordingly.

(2) Letters of administration may be granted to any corporation either solely or jointly with another person and the corporation may act as administrator accordingly.

(3) Any officer, authorized for the purpose by such corporation, may swear affidavits, take the oath of office, give security, and do any other act or thing, which the court may require, on behalf of the corporation and the acts of such officer shall be binding on the corporation.

Who may file a caveat. Effect thereof.

535. At any time after the filing of a petition in a District Court, asking to have the will of a deceased person proved, or that the grant of probate thereof or of administration of a deceased person’s property be made, and before the final hearing of the petition, it shall be competent to any person interested in the said will or in the said deceased person’s property or estate, though not a respondent on the face of the petition, to intervene, by filing in the same court a caveat against the allowing of the petitioner’s claim or a notice of opposition thereto, and any order nisi which may be made upon such petition shall be served upon such objector as if he had been originally named a respondent in the petition.

Power of District Court to recall or revoke probate or grant of administration

536. In any case where probate of a deceased person’s will has issued on an order absolute in the first instance, or a grant of administration of a deceased person’s property has been made, it shall be competent to the District Court to recall the said probate or grant of administration, and to revoke the grant thereof, upon being satisfied that the will ought not to have been held proved, or that the grant of probate or of administration ought not to have been made; and it shall also be competent to the District Court to recall the probate or grant of administration at any time upon being satisfied that events have occurred which render the administration thereunder impracticable or useless.

Applications therefore to be by petition.

537. All applications for the recall or revocation of probate or grants of administration shall be made by petition, in pursuance of the rules of summary procedure hereinbefore prescribed; and no such application shall be entertained unless the petitioner shows in his petition that he has such an interest in the estate of the deceased person as entitles him in the opinion of the court to make such application.

Inventory and valuation.

538.

(1) In every case where an order absolute has been passed by a District Court declaring any person entitled to have issued to him probate of a deceased person’s will, or grant of administration of a deceased person’s property, it shall be the duty of the said person, executor, or administrator, in whose favour such order is made, to take the oath of an executor or administrator according to the form prescribed in the First Schedule and thereafter to file in court, within a time to be appointed therefore in the order, an inventory of the deceased person’s property and effects, with a valuation of the same, such inventory and valuation to be verified on oath or affirmation by the said executor or administrator in the form No. 92 in the said Schedule, and where the court requires it to enter into a bond with two good and sufficient sureties in the form No. 90 in the said Schedule, for the due administration of the deceased person’s property.

Security.

(2) The bond so entered into shall render the sureties responsible in any suit brought for the administration of the deceased person’s property for all deficiencies, depreciation, or loss of that property attributable to the default of their principal, and liable to make good the same to the same extent and in like manner as if the said default were their own, subject, however, to the conditions of the bond in that behalf.


[79, Law 20 of 1977]

(3) Where a banking, insurance or other corporation approved by the court stands surety, no other surety shall be necessary, nor shall a mortgage or hypothecation of the property be required-

Limited probate and administration.

539. It is competent to the District Court to make a grant of probate or a grant of administration, limited either in respect to its duration, or in respect to the property to be administered there under, or to the power of dealing with that property which is conveyed by the grant, in the following cases ;-

(a) When the original will of the deceased person has been lost since the testator’s death, but a copy has been preserved, probate of that copy may be granted, limited until the original be brought into court.

(b) In the like event, and with the like limitation, if no copy has been preserved, probate of a draft will may be granted, or if in addition no draft is available, then probate of the contents or of the substance and effect of the will, so far as they can be established by evidence, may be granted.

(c) When the original will is in the hands of some person residing out of Sri Lanka, who cannot be compelled to give it up to the executor, and if the executor produces a copy, then probate of that copy may be granted, limited until the original be brought into court. If, however, the will has been duly proved out of Sri Lanka, probate may be granted to the executor on a proper exemplification of the foreign probate without any limitation in the grant.

(d) If the sole executor of a will resides, or if there- are more executors than one and all the executors reside, out of Sri Lanka, or such of the executors as reside in Sri Lanka decline to act, then the court may grant administration with copy of the will annexed to any person within Sri Lanka, as attorney of the executor or of the executors, who shall be appointed for that purpose by power of attorney, the grant so made being limited for the use and benefit of the principal until the executor or one of the executors comes in and obtains probate for himself. If the document admitted to proof in this case be a copy of or substitute for the original, on account of the original itself not being forthcoming by reason of one of the just-mentioned causes, the grant shall further be limited until the original is brought into court:

Provided also, that if the person applying for the grant is not the attorney of all the executors, where there are more than one. the grant of administration shall not be made to him until the remaining executors have declined to act.

(e) In the case of a will, and there being no executor within Sri Lanka willing to act, grant of administration with copy of the will annexed may be made to the attorney of an absent residuary legatee, or heir, limited until the principal shall come in and obtain administration for himself; or in the like case, the grant may be made to the guardian of a minor residuary legatee, within Sri Lanka, limited during the minority, or to the manager of the estate of a residuary legatee who is of unsound mind, within Sri Lanka, limited during the unsoundness of mind.

(f) In the case of intestacy, grants of administration of the deceased person’s property may be made, limited in like manner to the guardian of a minor heir or to the manager of the estate of an heir who is of unsound mind.

(g) The court may grant probate or administration limited to any particular property or for any particular purpose, in any case where it considers that a larger grant is unnecessary.


[80, Law 20 of 1977]

In all the foregoing cases, the material and relevant facts necessary to justify the court in making the limited grant must be set out in the petition of application, and must be established by prima facie evidence before the order is made, as is prescribed in sections 524 and 530.

Administration pendente lite.


[81, Law 20 of 1977]

539A. Where any legal proceeding touching the validity of the will of a deceased person or for obtaining, recalling or revoking grant of probate or letters of administration is pending, the court may, either on the ground of undue delay or otherwise, grant letters of administration to the estate of the deceased to an administrator limited for the duration of such proceeding; such administrator shall be subject to the immediate control of the court and act under its direction, and shall not have the right of distributing the estate.

Limited letters for sale of property of estate.


[81, Law 20 of 1977]

539B.

(1) Notwithstanding the provisions of section 55 of the Estate Duty Ordinance or of section 42 of the Estate Duty Act, as the case may be, where for the purpose of paying estate duty or for any other sufficient cause it becomes necessary to sell any property of the estate of a deceased person prior to the issue of probate or letters of administration the court may grant letters limited for the purpose of selling such property.

(2) Such property shall be specified in the grant and such grant shall expressly state that the letters are issued subject to the following conditions:-

(a) that the sale shall be, if by private treaty, at the price fixed by court, or if by public auction, either at an upset price or otherwise;

(b) that the net proceeds of sale shall be deposited in court within such time as the court may prescribe;

(c) that the administrator to whom the letters are issued is not empowered to execute any deed of conveyance of immovable property prior to the confirmation of sale by the court; and

(d) any other stipulation the court may in the circumstances deem fit to impose.

(3) Before making an order for grant of letters under this section the Commissioner- General of Inland Revenue and the respondents to the original petition for probate or letters of administration shall be given notice of the application and they or any other person interested in the estate shall be heard in opposition unless they or any of them shall have signified their assent to such sale.

Power of administration when not limited.

540. If no limitation is expressed in the order making the grant, then the power of administration, which is authenticated by the issue of probate, or is conveyed by the issue of a grant of administration, extends to every portion of the deceased person’s property, movable and immovable, within Sri Lanka, or so much thereof as is not administered, and endures for the life of the executor or administrator or until the whole of the said property is administered, according as the death of the executor or administrator, or the completion of the administration, first occurs.

Court may dispense with security.

541. In all cases of the issue of probate security shall not be required, unless for some special reason the court deems that security is absolutely necessary for the protection of the estate; and in cases where the grant of administration is limited in regard to the dealing with the property which is the subject thereof, it shall be within the discretion of the court to dispense with the giving of the bond under section 538 ; and in all cases the court may limit the amount secured by the bond to the value of the movable property, which appears to the court likely to come into the hands of the administrator and to be liable to misappropriation;

Provided that every order, dispensing with the bond or limiting the amount to be secured thereby in cases of administration or requiring security in cases of probate, shall adjudicate upon the facts upon which the court intends it to rest;


[82, Law 20 of 1977]

Provided further that in all cases of the issue of probate grant of administration to a sole beneficiary under a will or the sole heir in the case of intestacy or where all the heirs being suit juris consent thereto, security shall not be required.

Person dying intestate, death to be reported by next of kin.


[2, 24 of 1969.]

542. When any person shall die in Sri Lanka without leaving a will, it shall be the duty of the widow, widower, or next of kin of such person, if such person shall have left property in Sri Lanka amounting to or exceeding in value twenty thousand rupees, within one month of the date of his death to report such death to the court of the district in which he shall have so died, and at the same time to make oath or affirmation or produce an affidavit verifying the time and place of such death, and stating if such is the fact that the intestate has left property within the jurisdiction of that or any other, and in that event what, court, and the nature and value of such property.

Penalty for neglect.

543. Every person made liable to report any death under, or to furnish any information required by, section 542,
who shall wilfully omit to report such death or to furnish such information within the time therein prescribed therefore, shall be guilty of an offence, and liable to a fine not exceeding one thousand rupees-

Who may apply for administration in case of Intestacy.


[83, Law 20 of 1977]

544. In any case where a person is so reported to have died intestate, any person interested in having the estate of such intestate administered may apply to such court for grant- to himself of letters of administration; and the court shall have power, having regard, where there is a conflict of claims, to the provisions of section 523, to appoint such person administrator.

In event of no application, court may appoint some person to administer the estate. Compulsory, where the value of the estate is twenty thousand rupees or over.


[2, 24 of 1969.]

545. In case no such person shall apply for letters of administration, and it appears to the court necessary or convenient to appoint some person to administer the estate or any part thereof, it shall be lawful for the court in its discretion, and in every such case where the estate amounts to or exceeds in value twenty thousand rupees it shall be obligatory on such court, to appoint some person, whether he would under ordinary circumstances be entitled to take out administration or otherwise, to administer the estate, and all the provisions of sections 519 to 521, both inclusive, shall apply, so far as the same can be made applicable, to any such appointment.

Issue of letters ad colligenda.

546. If any person shall die leaving property in Sri Lanka, the Judge of the. court of any district in which such property shall be situate shall, on the facts being verified to his satisfaction and it being made to appear that there is not resident, within the local limits of his jurisdiction, some next of kin or other person entitled to administration of the estate of the person so dying, issue letters ad colligenda in the form No. 91 in the First Schedule to one or more responsible persons to take charge of such property until the same shall be claimed by some executor or administrator lawfully entitled to administer the same.

No action maintainable to recover property of testator or intestate of over twenty thousand rupees unless probate or administration has been taken out.


[ 84, law 20 of 1977.]

547. No action shall be maintainable for the recovery of any property, movable or immovable, in Sri Lanka belonging to or included in the estate or effects of any person dying testate or intestate in or out of Sri Lanka within twenty years prior to the date of institution of the action, where such estate or effects amount to or exceed in value the sum of twenty thousand rupees unless grant of probate or letters of administration shall first have been issued. In the event of any such property being transferred in any manner other than under the provisions of subsection (1) of section 539B of this Ordinance or under section 28 of the Estate Duty Ordinance or section 22 of the Estate Duty Act, as the case may be, without such probate or administration being so first taken out, every transferor or transferee of such property shall be guilty of an offence, and in addition to any penalty imposed under this Ordinance, it shall be lawful for the State to recover from such transferor and transferee or either of them, such sum as would have been payable to defray estate duty. The amounts so recoverable shall be a first charge on the estate or effects of such testator or intestate in Sri Lanka or any part of such estate or effects, and may be recovered by action accordingly.

Probate when executor is appointed for limited purpose.

548. When a person is appointed executor of a will for a particular purpose only of the will, and not executor of the will generally, probate will be granted to him limited for that purpose only.

Fresh grant, when allowed.

549. When a sole executor or a sole surviving executor to whom probate has been granted, or a sole administrator or a sole surviving administrator to whom a grant of administration has been made, dies leaving a part of the deceased’s property un administered, then a fresh grant of administration may be made in respect of the property left un administered according to the rules hereinbefore prescribed for a first grant.

Rectification of errors in grant.

550. Errors in names and descriptions, or in setting forth the time and place of the deceased’s death or the purpose in a limited grant, may be rectified by the court, and the grant of probate or letters of administration may be altered and amended accordingly.

Compensation of executors and administrators.

551. Compensation shall be allowed to executors and administrators by way of commission as well on property not sold but retained by the heirs, as on property sold by such executors and administrators, at such rate not exceeding three per centum, and on cash found in the estate and on property specially bequeathed, at such rate not exceeding one and a half per centum, as the court shall, after taking into consideration the circumstances of each particular case with reference to the trouble incurred by such executors or administrators, determine. In no case shall a larger sum than five thousand rupees be allowed to any executor or administrator as such compensation, unless it shall be made apparent to the court that such unusual trouble has fallen upon him as to entitle him, in the opinion of the court, to receive further remuneration.

Compensation of several executors.

552. Each executor or administrator shall be entitled to the full compensation allowed by law to a sole executor or administrator, unless there are more than three, in which case the compensation to which three would be entitled shall be apportioned among them all according to the services rendered by them respectively, and a like apportionment shall be made in alt cases where there shall be more than one executor or administrator. But where the will provides a specific compensation for an executor or administrator, he shall not be entitled to any allowance other than that so provided, unless he files in court a written renunciation of the specific compensation.

Filing of the account, and payment into court.


[85, Law 20 of 1977.]

553. Every executor and administrator shall file in the District Court, on or before the expiration of twelve months from the date upon which probate or grant of administration issued to him, or within such further time as the court may allow, a true and final account of his executorships or administration, as the case may be, verified on oath or affirmation, with all receipts and vouchers attached, and may at the same time pay into court any money which may have come to his hands in the course of his administration to which any minor or minors may be entitled.

Executor or administrator who fails to administer within the year liable for interest.

554. If any executor or administrator shall fail to pay over to the creditors, heirs, legatees, or other persons the sums of money to which they are respectively entitled, within one year after probate or administration granted, such executor or administrator shall be liable to pay interest out of his own funds for all sums which he shall retain in his own hands after that period, unless he can show good and sufficient cause for such detention.

When a certificate of heir ship may be applied for.


[86, Law 20 of 1977.]

554A. When any person shall die without leaving a will and leaving an estate under twenty thousand rupees in value, any heir of the deceased shall be entitled to apply to the District Court of the district within which he resides, or within which the deceased resided at the time of his death, or within which any property of the deceased’s estate is situate, for a certificate that he is an heir of the deceased.

Mode of application.


[86, Law 20 of 1977.]

554B. The application shall be made on petition by way of summary procedure setting out the relevant facts of the absence of the will, the death of the deceased, the value of the estate and the heirs of the deceased to the best of the petitioner’s knowledge, and the grounds upon which the petitioner claims to be an heir. The application shall be supported by sufficient evidence by way of affidavit to afford prima facie proof of the material allegations in the petition, and shall name the next of kin of the deceased as respondents.

Court if satisfied with proof to make order nisi


[86, Law 20 of 1977.]

554C. If the court is of opinion that the material allegations of the petition are proved, it shall make an order nisi declaring the petitioner’s heir ship, which order shall be served on the respondents and upon such other persons as the court shall think fit to direct, and shall come on for final hearing and disposal on a day to be named therein.

At final hearing on objection court shall frame issues.


[86, Law 20 of 1977.]

554D. If on the day appointed for final hearing, or on the day to which it may have been adjourned, the respondent or any person upon whom the order nisi has been directed to be served, or any person then appearing to be interested in the administration of the deceased’s property, satisfies the court that there are grounds of objection to the application, such as ought to be tried on viva vice evidence, then the court shall frame the issues which appear to arise between the parties, and shall try the same forthwith or on a day to be appointed for the purpose.

When order nisi shall be made absolute and when discharged.


[86, Law 20 of 1977.]

554E. If at the final hearing or on the determination of the issues thus framed, it shall appear to the court that the prima facie proof of the material allegations of the petition has not been rebutted, then the order nisi shall be made absolute, and a certificate of heir ship shall issue accordingly to the petitioner. If, on the other hand, it shall then appear to the court that the prima facie proof of any material allegations in the petition has been rebutted and that the petitioner has failed to establish his claim the order nisi shall be discharged, and the petition dismissed :

Provided that it shall be open to any of the respondents at such hearing of issues to establish his right to be an heir of the deceased and to have a certificate of heir ship issued to him, whether the petition is dismissed or not.

CHAPTER XXXVIIIA
INSOLVENT TESTAMENTARY ESTATES
When the estate of a deceased person is deemed to be insolvent.


[87, Law 20 of 1977.]

554F. The estate of a deceased person shall be deemed to be insolvent-

(i) If upon the basis of a valuation of his assets and liabilities as at the date of his death or at any time subsequent thereto, it appears that the assets are or will be insufficient to pay in full the funeral, testamentary and administration expenses relating to the estate, and the claims of creditors ; or

(ii) if owing to execution proceedings being taken against the deceased or his estate or the difficulty of realizing any of the assets of the estate, or because of disputed claims, or for any other sufficient reason, the estate should be administered as an insolvent estate for the benefit of all parties interested in the estate.

Where estate insolvent, applicant for probate, & c, to take steps to have it so declared.


[87, Law 20 of 1977.]

554G.

(1) Where an estate is deemed to be insolvent at the date an application for probate or letters of administration is made, the petitioner shall, in addition to the other averments required to be stated in the petition for probate or letters, set out the material facts upon which adjudication that the estate should be deemed to be insolvent is claimed, and shall contain detailed lists showing-

(a) the names of all persons who to the best of the petitioner’s knowledge and belief have claims against the estate;

(b) the last known place of abode or business of such persons;

(c) the sums claimed by each of such persons and whether or not the sums claimed are liquidated or unliquidated amounts; and

(d) whether or not the sums claimed or any part thereof are admitted by the petitioner.

(2) In the petition so filed, the persons who are required to be named as respondents to the application for probate or letters, shall be made respondents.

Where estate insolvent, executor or administrator to take steps to have it so declared.


[87, Law 20 of 1977.]

554H.