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Present : Lascelles C.J. and Ennis J.
SIVAKAMIPILLAI v. MANONMANI et at.
155—D. C. Colombo, 38,383.
Order directing plaintiff to perfect letters of administration before aspecified date—Action to be dismissed otherwise—May Court grantan extension of time to perfect letters?—Power of Court to vary theorder.
Where a Court ordered the plaintiff in a case to have the propertyclaimed by him duly administered before a certain date, and statedin .his order that if the letters of administration were not perfectedby that date the plaintiff's action would be dismissed—
Held, that the order was in substance an order adjourning thehearing of the case, and that there was – no reason to prevent theJudge from afterwards granting a' further adjournment if he thoughtfit to do 80.
fJlHE facts are set out in the judgment.
Sampayo, K.C. (with him Gurusamy), for the plaintiff, appellant.—The District Judge had the power to give a further extension of timefor perfecting the letters of administration if he was satisfied thatthere was no fault on the part of the plaintiff. This is not a caseof an application for varying or setting aside ah order or decree.We asked the District Judge only for an extension of time. Thatportion of the order where he says that the action will be dismissedif the letters are not properly stamped before May 6 is not a “ decree ”
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or “ order ”. It is only an expression of an intention. Even if theDistrict Judge had no power to give an extension of time, this Courthas got the power [Silva v. Silva1).
Bawa, K.C. (with him H. A. Jayewardene), for the defendants,respondents.—The plaintiff should not. have appealed. His remedywas to institute a fresh action after getting his letters stampedproperly. The dismissal of this action is no bar to a second actionafter the letters are properly stamped. See Karunawardana v.Wijesurial,2
Sampayo, K.C., in reply.—To compel the plaintiff to bring afresh action would be very inequitable. The plaintiff would thenhave to pay heavy costs and incur further expenses.
Cur. adv. vult.
August 22, 1912. Lasceli.es C.J.—
The argument of the case occupied a considerable time, but thepoint for decision is in reality a simple one. The defendants in ■their answer pleaded that the action could not be maintained untilthe plaintiff had obtained administration for the property claimed.The learned District Judge acceded to this contention, and as theparties had acquiesced in the order that he made, no question nowarises as to the correctness of the decision of the District Judge onthat point.
The order was made by the District Judge on March 4, and hethen decided to give the plaintiff an opportunity of amending theinventory of the estate and paying the additional stamp duty. Headjourned the case to May 6, and he stated in his order that if theletters of administration were not perfected by that date theplaintiff’s action would be dismissed. May 6 came, and on thatdate the plaintiff had not amended the inventory nor paid theadditional stamp duty. Thereupon, on May 9, the District Judgedismissed the action, refusing an application for further time. Hedid this, as 1 understand his order, on two grounds. He, first of all,held that he had no power to vary his previous order of March 4.In that I think he was clearly wrong. The order of March 4 was insubstance an order adjourning the hearing of the case, and there wasno reason to prevent the District Judge from afterwards grantinga further adjournment if he thought fit to do so. The statementcontained in the order, that if the security was not perfected by agiven date the action would stand dismissed, was merely a declara-tion of what the Court intended to do in a certain contingency. Sofar, then, as the power of the Judge is concerned to grant a furtheradjournment, I think there can be no question at all. Then arisesthe question whether the plaintiff is entitled to the indulgencewhich she asks; for it is merely an indulgence. We have been
» (1912) 16 N. L. R. UG.2 (1906) 11 N. L. R. SMi
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referred to the affidavits of the plaintiff and to the record of theproceedings in the testamentary case at Jaffna. What the plaintiffhad to do was really the simplest thing in the world. The inven-tory of the property of her intestate had to be amended, and theadditional stamp duty had to be paid. We find that when theplaintiff made her application in Jaffna her petition was minutelycriticized by the Secretary of the Court, who appeared to havetreated the matter as an application for new letters of administration.The observations of the Secretary were then forwarded to theActing District Judge, who made some further observations; andthe matter was then passed on to the District Judge himself, withthe result that the time allowed elapsed without the plaintiff beingable to obtain the amendment of the inventory. While I' do notthink that the plaintiff was entirely free from blame in the matter,I do think that she encountered difficulties in the Court of Jaffnawhich were hardly reasonable. On that ground I would grant herthe indulgence of a further delay of one month from the date whenthe record is returned to the District Court. The plaintiff, I think,ought to pay the costs of the last hearing in the District Court,namely, the hearing on May 9, and I think the costs of the appealought to be costs in the cause. The order then will be that thejudgment of the District Court will be set aside, and the plaintiffwill be allowed a month from the return of the record to the DistrictCourt within which to comply with the order as to the amendmentof the inventory and the payment of the additional stamp duty.
Ennis J.—I concur.
SIVAKAMIPILLAI v. MANONMANI et al