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SULYMAN v. SOMANADEN et al.D. C., BaUicaloa, 1,662.
Substitution—Assignment of decree—Remedies of assignee—Institutionof fresh action—Res judicata.
It is discretionary with a District Judge to substitute on therecord the assignee of a final decree in place of his assignor. Whensuch substitution is disallowed by the Judge, the assignee may Tesortto the remedy of a fresh action against the judgment-debtor.
/T'HE plaintiff in this case was assignee of a decree in another^ action against the defendant. He applied to be substitutedplaintiff in that action, and the application was disallowed. There-upon he instituted the present action to recover from the defendantthe amount of the decree in the former. The District Judge,being of opinion that the plaintiff having failed in his applicationin the former action was estopped upon instituting the presentaction, dismissed the present action with costs. The plaintiffappealed.
13th August, 1897. Withers, J.—
It seems to me that this case is covered by the decision in Y. B.Dinguruhamy v. P. Ghtruge Sinno, D. C., Galle, 53,288, reportedin 8 8. C. C. 100.
As Chief Justice Burnside there observed, it is within the discretionof the Judge whether he will substitute on the record the assigneeof a final decree.
The Court refused to substitute the present plaintiff in the placeof his assignors on the record. What other remedy has he thanan actio judicati ? The District Judge says that having elected toapply for substitution in order to execute the decree assigned tohim, he is estopped from bringing an action on the decree. He
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ought, in the opinion of the Judge, to repeat his application onfurther rad better material. But such leave was not granted tohim. It seems to me that the plaintiff is quite within .his rights.I would set aside the judgment of the lower court and remit therecord for the trial and determination of the remaining issues.Costs of appeal to go to the successful party.
I agree that the judgment should be set aside and remitted forthe trial of the issues already settled, and any further issues whichmay appear necessary. As 8 S. C. C. 100 was decided beforethe Civil Procedure Code came into operation, I prefer to say weare concluded by the decision in 2 C. L. B. 207, and I think it notimpossible that the judgment of my brother therein may suggestto the present District Judge additional issues for trial.
August 13.Withers, J
SULMAN v. SOMANADEN et al