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Present : Sir C. P. Layard, Chief Justice, and Mr. Justice Grenier.CLARA FERNANDO v. ROSA FERNANDO.
D. G., Negombo, 603.
Application -for discovery of property by an administrator—Procedure—Citation—Security—Civil Procedure Code, chapter LIV.
The procedure to be adopted in an application by an adminis-trator for discovery of property belonging to the intestate's estateunder chapter LTV. of the Civil Procedure Code indicated.
PPEAL from an order of the District Judge directing theappellants to deliver certain property to the respondent as
administratrix of the estate of her deceased husband.
H. J. C. Pereira and H. A. Jayewardene, for appellant.
Domhorst, K. C., and E. W. Jayewardene, for respondent.
Cur. adv. vult.
12th August, 1903. Layabd C. J.—
In this case the Court seems to have misunderstood the procedurelaid down in chapter LTV. of the Civil Procedure Code. The res-pondent is the administratrix of the intestate husband’s estate.The appellants are persons in whose possession the administratrixalleges was certain property which had belonged to the intestate andwhich the respondent claims as his legal personal representative.She therefore presented a petition under section 712 of the CivilProcedure Code, and cited the appellants to appear before the court.The first mistake appears to have been made in the citation issued.The object to be authorized by issue of a citation under section 712is the discovery of property, so that section explicitly provides for acitation to attend the inquiry, and that the person cited should benoticed that he would be examined for the purpose of such dis-covery. The citation issued in this case is silent as to the personalattendance of the appellants, and thereby calls upon them to appearto show cause why they should not deliver certain articles io theadministratrix. Sections 712 and 713 show that the respondentsshould have ieen simply cited as witnesses, for section 713 providesthat persons so cited need not take notice of the citation unless itis accompanied with payment and tender of the sum required bylaw to be paid or tendered to a witness subpoenaed to attend atrial in a civil court. To assist the applicant for a citation andthe Court that issues it, the Code actually provides a form of citation.(Form No. Ill in schedule. A.) That form explicitly calls upon theperson cited to appear “ personally ” and. to answer in court tothe application of the person applying for the citation. I cannot
3J. N. A 99412 (8/50)
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1903. imagine why, when a form is expressly provided which is in accord-August 12. ance with the express terms of an enactment, persons should go outLayabd C.J. of their way to draft a form inconsistent with the terms of theenactment. The appellants, I gather from the record, did in pur-suance of the citation personally attend the court. The court,however, instead of recording their appearance, records that theircounsel and proctor appeared and proceeded to deal with the caseas if it was an ordinary trial. The appellant's counsel took somefrivolous objection to the procedure, which was properly over-ruled.But neither appellant’s counsel nor respondent’s counsel appearsto have in any way assisted the judge by inviting his attentionto the proper procedure to be adopted under chapter LIV. of theCode. Now, section 714 clearly lays down that upon the attend-ance of a person in obedience to citation issued at the request ofan administrator under section 712, the first thing to be done is toexamine such person fully and at large respecting the property ofthe intestate, or of which the intestate was in possession at thetime of, or within two years preceding, his death. The proceedings,however, in this case began by the evidence of the administratrixbeing recorded without any demand on the part of appellant’sor respondent’s counsel. When a procedure is clearly and explicitlylaid down as is in section 712, I cannot see that there is any justi-fication for a departure from it. If the person cited puts in anaffidavit, in which he swears that he is the owner of the property,the District Judge is bound to dismiss the proceedings as section714 enacts. In this case no such affidavit was put in by theappellants, the persons cited, so the District Judge should, afterhaving recorded their examination and such further evidence asmight have been produced by either party, have acted as providedby section 716. Instead of doing this, after a sort of trial theDistrict Judge proceeds to reserve judgment, and some sevendays after hearing the evidence orders certain property referred toin list A to be delivered to the respondents by the appellants. Itis obvious that the procedure to be adopted under chapter LIY. isa very summary one, for section 716 thereby provides that if itappears to the Court from the examination of the person cited bythe administratrix and other testimony (if any), that there is reasonto suspect that property of the intestate is withheld or concealed bythe person cited, the Court shall, unless such person gives (securityby a bond entered into with the administratrix with such suretiesand such penalty as the Court approves for the delivery of theproperty, or in default of such delivery for the payment of thevalue thereof to the administratrix and of all damages which may
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be awarded against the obligor for withholding the same, whenever 1903.
it shall be determined in an action brought by the administratrix, August 12.
that it belongs to the estate of her husband’s intestate, make a T.AV7ttn~r:.J.
decree reciting the grounds thereof requiring the person cited to
deliver possession of the property to the administratrix. In the
event of such security being given, and after payment within a time
to be fixed therefor of any costs which the Court may award to the
administratrix, the proceedings shall be dismissed. I gather from
the judgment of the District Judge that it appeared to him from
the examination of appellants and the other testimony adduced
before him that there was reason to suspect that certain property
of the respondent’s intestate was withheld by the appellants. The
order made by him, ’however, cannot stand as it is, and it must be
set aside, and the case remitted to the District Judge to make such
an order as is contemplated by section 716. In such order he must
fix a reasonable time for the appellants to give security. As
counsel for both parties appear to me to be responsible for the
error in procedure in the District Court, the administratrix and
the persons cited by her (the appellants in this case) must each
bear their own costs of the proceedings in the District Court.
The appellants are entitled to their costs of this appeal.
Grenier, A. J.—
I agree. The procedure laid down in a case of this kind is so plainand simple that it seems inconceivable to me why it was not follow-ed, as it should have been followed. The sections prescribing theprocedure are taken from the New York Code of Civil Procedurerelating to testamentary proceedings, and are admirably adapted forthe speedy and effectual discovery and conservation, for purposesof administration, of property belonging- to an intestate estatewhich happens to be in the hands of a third party.
CLARA FERNANDO v. ROSA FERNANDO