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Present: Lascelles C.J. and Middleton J.July 20,1911
NUGARA v. PALAN1APPA CHETTY.
103—D. C. Colombo, 29,242.
Executors and administrators are personally liable for costs as againstopposing parties to actions—Civil Procedure Code, 8. 474.
An executor or administrator who is on the record as plaintiff ordefendant is liable personally for costs in the same way as any otherperson. The question whether he is entitled ultimately to recoverthe amount of the costs which he is ordered to pay from the estateis a totally different matter. As between the parties to the action,an executor or administrator is individually responsible for thecosts which he is ordered to pay.
rjIHE facts appear in the judgment.
Van Langenberg, for the appellant.—Under the English law anadministrator who is a defendant would be personally liable in costs,unless the Court makes an order to tin contrary. An express orderof Court would be necessary to make the estate liable. Section474 of the Civil Procedure Code suggests that the rule in Ceylon isdifferent. If the rule here be the same as the English rule, there isno necessity for specially enacting that an executor and adminis-trator would in actions brought by him be liable to pay the successfuldefendant’s costs, Unless the Court makes an order to the contrary.
The section makes special provision for an administrator who isplaintiff; it makes no provision for an administrator who is adefendant. The reason for the distinction is probably the factthat an administrator when defendant is forced into Court. Theadministrator is an officer of Court, and is different from an ordinarydefendant. Counsel cited Naidehamy . v. Silva,1 Edirishamy v. DeSilva,3 In re Rupesinghe.3
Bawa, for the respondent.—The law of administration is theEnglish law. See Edirishamy v. De Silva ;3 Civil Procedure Code,section 4 ; Morgan’s Digest, p. 71 ; 121—D. C. Batticaloa, 404.4Section 474 might have been inserted ip the Code as a warning toexecutors to prevent them from embarking on litigation rashly.
July 20,1911. Lascelles C.J.—
This is an appeal from an order made by the District Judge ofColombo, on an application by the second defendant for the recall
'(1896) 2 N. L. R. 289.*(1896) 2 N. L. R. 242.
31 s. a. c. m.* S. 0. Min., Feb. 28,1908.
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of the writ issued and the release of the property seized, on theground that he is not personally liable for the costs, but only in hiscapacity as administrator of the estate of Jansz. The learnedDistrict Judge has refused the application of the second defendant,and from the order of the District Judge the present appeal is now. brought. Now, the only section in the Civil Procedure Code whichrelates to the liability of trustees and executors to pay personallyany costs awarded against them is section 474. That section dealsonly with the case of actions brought by executors or administrators,and it enacts that, unless the Court otherwise orders, the trustee oradministrator is liable to pay the costs to the defendant in casejudgment is entered for the defendant. It is argued from the factthat the section only refers to the case where an executor or adminis-trator is the plaintiff ; that a different rule applies in a case where atrustee or executor is the defendant. I cannot agree to this rule.I think the probable reason of the enactment of section 474 is to besought in the necessity for some special warning against trusteesand executors embarking in rash actions. It is a well-settledprinciple that the English law of executors and administrators isapplicable where there is no local law in force, and the rule whichin such cases is in force in England is beyond all doubt. It maybe found clearly stated in Daniel's Chancery Practice, p. 117S, andin Williams on Executors, p. 1667.
An executor or administrator who is on the record as plaintiff ordefendant is liable personally for costs in the same way as any otherperson. The question whether he is entitled ultimately to recoverthe amount of the costs which he is ordered to pay from the estateis a totally different matter. As between the parties to the action,an executor or administrator is individually responsible for the costswhich he is ordered to pay. I think that the order of the DistrictJudge is correct in its result, and I would dismiss the appealwith costs.
I agree, and have nothing to add.
NUGARA v. PALANIAPPA CHETTY