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DE SILVA a. BABASINNO.0. R., Balapitiya, 3,548.
Hypothecary act'on—Procedure to be adopted on death■ of defendant—Improprietyof appointment of legal representat ive in such event—Civil Procedure Code,chapter XX I'. and s. 642.
In a hypothecary action, on the death of the defendant after actionbrought, the proper procedure to be adopted by the plaintiff it. not toobtain the appointment of a legal representative under section (142 of theCivil Procedure Code, but to obtain tlio appointment of an administratorunder chapter XXV. of that Code, who should be made defendant inthe stead of the original defendant.
LAINTIFF sued his father-in-law, the original defendant in
this case, for the recovery of a sum of Its. 300 due to theplaintiff on a mortgage bond, and prayed that the land speciallymortgaged to the plaintiff by his father-in-law " be declared bound■“ and executable under the judgment of this action on the footing
of the said mortgage.”
The original defendant filed answer denying his liability tothe plaintiff, but before the case came on for trial died intestate.His estate being under the value of Rs. 1,000, the Court below, onthe application of the plaintiff, and on the motion of some of theheirs who w-ere made respondents to the plaintiff’s application,appointed a legal representative under section 642 of the CivilProcedure Code to represent the estate of the deceased defendant,and thereafter dismissed the plaintiff’s case with costs, holdingthat, in accordance with the judgment reported in 2 S. C. C. 141an administrator should be appointed for the deceased’s estate.
The plaintiff appealed.
H. Jayawcrdena, for appellant.
Batco-, for respondent.
17th September, 1900. Boxser, C.J.—
It seems to me that this appeal w'as ill-advised. The plaintiffhas been wrong in the course he has taken He sued upon amortgage bond, which had been given to him by his father-in-lawto secure a loan of Rs. 250.
Before the action came up for trial the defendant died, andthereupon the plaintiff applied to the Court under section 642 ofthe Civil Procedure Code to appoint a person to represent thedeceased mortgagor, and a person was appointed.
But that section fias no reference to a case like this, where themortgagor dies while the action is pending; it refers to a ease
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where the mortgagor dies before action brought. The plaintiffought to have proceeded under the provisions of chapter XXV.,which deals with the case of a party dying while the action ispending.
The proper course in this case will be to get an administratorappointed and make him defendant in the stead of the deceaseddefendant. The action will go back for that purpose. Theplaintiff must pay the costs of this appeal.