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Present : I>e Sampayo and Porter J.J.
NAGALINGAM et al v. CHITT AMP ADAM et at.
58^-D. C. (Inty.) Jaffna, 10,298.
Assignment of decree—Order of statement—Application by assignee tobe substituted plaintiffs and to have order of abatement set aside—Civil Procedure Code, s. 404.
The decree in this case was assigned to the appellants after anorder of abatement was made. 'Ihey moved to be substitutedplaintiffs and to have the order of abatement set aside.
Held, that they had no status to make She application.
T HE facts appear from the judgment.
E. W. Jayawardene, for the appellants.
Hayley, for the respondents.
July 21, 1922. De Sampayo J.—
This is a somewhat peculiar case. In the action No. 9,104 of theDistrict Court of Jaffna, the plaintiff sued* the second defendanton a promissory note and obtained judgment. In execution ofthe decree, he seized a number of lands which were claimed by thefirst defendant upon a transfer made in his favour by the seconddefendant. The1 claim was upheld. Consequently the plaintiffbrought this action, which was instituted so long ago as February,1915, to have it declared that the deed executed by the seconddefendant in favour of the first defendant was in fraud of creditors,and to have it set aside. Sometime afterwards the plaintiff assignedthe decree in the previous action to the present appellants, andthey came into the present case and asked to be substituted asplaintiffs in place of the original plaintiff, and also to have an orderof abatement entered by the Court set aside. The order of abate-ment was made in these circumstances. On April 23, 1915, theCourt ordered this case to be put by in order to enable the plaintiffto seize and realize, if possible, some other property of the seconddefendant as judgment-debtor in the previous case. But later theCourt ordered the action to abate, as no steps had been taken for,over a year. The only question, so far as I am concerned, on thisappeal, is whether the appellants can bring themselves under anyprovisions of the Code entitling them to be substituted as plaintiffsin this case, and to have the order of abatement set aside. Mr.Jayawardene, for the appellants, refers us to section 404 of fcha
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Civil Procedure Code. But there are one or two difficulties in the 192&way of the appellants in seeking to come under that section. In £>e Samfayothe first place there was no assignment, creation, or devolution ^of any interest in this action by the plaintiff to the appellants. NagalingtmSecondly at the time of the assignment this action was not pending, v-as the order of abatement had already been made. I do notthink that section 404 helps the appellants. I think really theyhave mistaken their remedy in seeking to intervene in this^ action.
The District Judge, I think, was right in refusing the application,and I would dismiss the appeal with costs.
I agree. I will only add, that had there been any merit in thisapplication, the way in which it was framed made it impossiblefor the Judge to have granted the application. The appellantsasked, in the first place, to have the order of abatement rescinded;
•and secondly, that they be made parties to the action. They hadno status, not being parties to the action, and, therefore, on theapplication to set aside the order of abatement, they could not beheard, the Judge was right in refusing to grant the application.
NAGALINGAM et al. v. CHITTAMPALAM et al