Vsoof Joonoos v. Abdul Kuddoos.
193® Present : Soertsz A.CJ., de Kretser and Wijeyewardene JJ.
USOOF JOONOOS v. ABDUL KUDDOOS.
159—D. C. Colombo, 47,499.
Costa—Action by administrator—Decree for costs—Liability to pay costs—
Property of intestate not liable to be seized—Civil Procedure Code, s. 474.
An executor or administrator who brings an action in right of thetestator or intestate is personally liable to pay the costs of the defend-ant, should the action be dismissed, unless the Court otherwise orders.In such a case property belonging to the estate of the deceased is notliable to be sold in execution of the decree- for costs.
Edxrishamy v. de Silva (2 N. L. R. 242) followed; Nonnohamy et ol. v.Podisingho et al. (23 N. L. R. 319) not followed.
ASS referred by Moseley and Soertsz JJ. to a Bench of three Judges.
The question referred was whether the property of an intestate wasliable to be sold on an order for costs made in favour of a defendantagainst a plaintiff who sues on behalf of the intestate in the capacity of anadministrator.
C. Thiagalingam (with him E. B. Wikremanayake and S. Mahadeva)for defendant, appellant.—The question to be decided is how far theestate of an intestate is liable where the administrator is ordered to paythe costs of an action brought by him. This question cannot arise inthe English Courts. Under the English law, when a person dies, hisestate is at an end and vests in the Probate Court which delegates to theexecutor or administrator certain functions. In the Roman-Dutch law,on the contrary, the estate is an entity which has an existence even afterthe death of the deceased—Sohm’s Roman Law (3rd ed.) p. 501;,Lee onRoman-Dutch Law (1915 ed.) p. 285. Section 69 of Chapter 6 (CourtsOrdinance) and the Charter of 1833, no doubt, introduce the English law.But to what extent ? Section 69 of the Courts Ordinance vested in theCourts only the right to appoint executors and administrators. This wasinterpreted in (1863-8) Ifamanathan’s Reports 265 and Vanderstraaten’sReports (1869-71) 273 as introducing into Ceylon the English law ofexecutors and administrators. It is not necessary to challenge thecorrectness of those decisions. But that does not mean that the conceptof an estate as a juristic person should be abandoned. 'It is in that viewthat section 474 of the Civil Procedure Code came in and confirmed theliability of the estate for costs. Section 474 clearly assumes that therule is that the estate is liable for costs and merely provides for anadditional remedy against the executor or administrator. Where,therefore, an administrator brings an action as administrator and isordered to pay costs, the defendant may seize the property of the intestatein execution of his decree for costs—Nonnohamy et al. v. Podisingho1;WesseVs History of Roman-Dutch Law p. 535. Nanayakkara v. JuanAppu' is not applicable because, in that cas^ the administrator entered
1 (1982) 23 N. L. R. 319.
* (1920) 21 N. L. R. 510.
SOERTSZ A.C.J.—Usoof Joonoos v. Abdul Kuddoos.
into a personal contract. Fernando v. Fernando1 recognizes the settledrule in Ceylon regarding the liability of the estate. Section 474 is designedmerely to prevent rash and hasty litigation on the part of the adminis-trator—Nugara v. Palaniappa Chetty *. In Edirishamy v. de Silva', thejudgments of the two Judges do not appear to be in accord. CharlesBoynton v. George Boynton * would have been dealt with differently inour Courts. It illustrates the difference between the English law andour law. There is no section like section 396 of the Civil Procedure Codein English practice.
The party to the action is the estate. We have to apply the Roman-Dutch law concept of the estate as a juristic person. Nonnohamy et al. v.Podisingho (supra) represents the correct view to be taken regardingsection 474.fci
S. J. V. Chelvanayagam (with him A. Muttucurnaru), for secondplaintiff, respondent.—The estate of a deceased person is not a juristicperson. No authority has been cited to support that proposition. Assoon as a person dies, his estate vests in the heirs.
The question is more one of procedure than of substantive law.
The English law of executors is applicable in Ceylon—Vanderstraaten'sReports (1869-71) 273. On the general question as to what extent anadministrator can make the estate liable, see For hall v. Farholl*. Theparties that are liable are the parties before the Court—Joseph Pitts v.Edward la Fontaine *; Boynton v. Boynton (supra).
C. Thiagalingam, in reply.—Section 474 of the Civil Procedure Codeshould be read along with section 472. Iragunathar et al. v. Ammal1 is inmy favour.
Cur. adv. vult.
July 3, 1939. Soertsz A.C.J.—
The short <point referred to us for decision is whether the property of anintestate is liable to be-sold on an order for costs made in favour of adefendant against a plaintiff acting in right of the intestate in the capacityof an administrator.
My brother Moseley and I referred this question to a Divisional Benchnot because we ourselves had any doubt in regard to it, but because inview of the conflict between earlier decisions on it, an authoritative rulingseemed desirable.
In Nonnohamy v. Podisingho8 Ennis and Porter JJ. held that section474 of the Civil Procedure Code only provides an additional remedy againstthe executor or administrator personally, and that it is open to thedefendant to seize the property of the testator or intestate in executionof his decree for costs. Ennis J. sought to distinguish the case beforehim from the case of Edirishamy v. de Silva", but so far as I understandthe earlier case, it is a. direct authority on the point that arose in the casebefore Ennis and Porter JJ., and that arises now in this case. In thatcase, Bonser C.J. and Lawrie J. held that on an order for costs made
i (1916) 3 C. W. R. 328.* (1871)L..R. 7 Ch.A. C.123.
(1911) 14 N. L. R. 327.« (18801h. R. 6 A.C. 482.
3 (1896) 2 N. L. R. 242.7 (1937)9 C. L. W.142.
(1879) L. R. 4 A. C. 733.-* 23 N.L. R. S19.
9 (1896) 2 N. L. R. 242.
SOERTSZ A.C.J.—Uaoof Joonoos v. Abdul Kuddoos.
against an executrix, she was personally liable and the “ Fiscal thereforecould not sell or the petitioner buy more than the personal interests ofthe executrix He also said “ the English law does not allow a defend-ant to recover his costs from the estate of the deceased …. andin my opinion that law should govern this case”. The- case beforeBonser C.J. was one in which the sale occurred prior to the passing of theCivil Procedure Code, and commenting on that fact, the learned ChiefJustice said, that “ since the passing of the Civil Procedure Code it wasclearly the law that an administrator was personally liable for costs “ forsection 474 expressly provides in the case of an action brought by anexecutor or administrator in right of his testator or intestate, the plaintiffis to be liable as though he were suing in his own right upon a cause ofactios accruing to himself and the costs are to be recovered accordingly ”.We respectfully agree with that view which, in our opinion, is the correctinterpretation of section 474 of the Civil Procedure Code.
Counsel for the appellant was at great pains to emphasize that underthe Roman-Dutch law the estate of a deceased person was liable quaestate for costs resulting from litigation undertaken by an executor oradministrator. That, however, is a proposition we were always willingto concede, subject to the qualification that the litigation was undertakenbona fide. But we are unable to follow him when he deduces from thatliability the further proposition that whenever an order for costs is madeagainst an administrator or executor, the judgment-creditor is entitledipso facto to take out writ and sell property belonging to the estate. Inour view section 474 enables a Court to exempt an> executor or adminis-trator from personal liability for costs and to make an order that costsshall be paid out of the estate, but that, of course, is a power which aCourt will exercise in appropriate cases where all the parties interestedin the estate are before it. But where a Court does no more than saythat a plaintiff executor or administrator shall pay the . defendant’s costs,the estate of the deceased is not automatically involved in that order.In such a case the administrator or executor is personally liable to paythe costs. He may later in proper proceedings seek to be reimbursed, outof the estate. In the sixth edition of DanielVs Chancery Practice, vol. II.,part I. at page 1175, it is stated on the strength of a number .of judicialdecisions that “ the general rule which gives the costs of the suit to thevictorious party, and throws them on the unsuccessful party, appliesequally to cases in which the parties are suing or defending in autre droit,and to those in which they are sui jurisIn the case of Nugara v. Palaniappa Chetty Lascelles C.J. and Middle-ton J. held that an executor or administrator who is on the record asplaintiff or defendant is liable personally for costs in the same way as anyother person, and “ that the question whether he is entitled ultimately torecover-the amount of the costs which he is ordered to pay from the estateis a totally different „ matter In Nanayakkara v. Juan Appu9,Bertram C. J. and de Sampayo J. followed the ruling in Nugara v. Palani-appa Chetty (supra) and added “ the fact that a judgment-debtor has a rightof indemnity against athird party does not entitle a judgment-creditor tosell the property of that third party under a judgment against his debtor.
1 li N. L. R. ssr.> SI N. L. B. 510
SOERTSZ A.C.J.—Dhanapala v. Mohamed Ibrahim.
An order of Court is clearly always necessary where it is sought to make theassets of such a third party available”. In an earlier case, Fernando v.Fernando Wood Renton C.J. and de Sampayo J. had taken a similarview adopting the rule laid down in Nugara «. Palaniappa Chetty. WoodRenton C.J. said, “ the point is clearly covered both by Statute Law andby Judicial decisions. Section 474 of the Civil Procedure Code providesthat even when an executor brings an action in right of his testator he ishimself personally liable to pay the costs of the defendant should theaction be dismissed, unless the Court makes an order to the contraryand that in all other cases the executor is liable for the defendant’s costsif the action fails just as if he was suing upon a cause of action accruingto him personally ”.
We agree with Counsel for the appellant that there is an " in terrorem ”element in section 474, but what he fails to appreciate is that that elementwill disappear if his contention is sound, for in that case it will be open toan executor or administrator to fritter away ,the estate by wasteful ordishonest and collusive litigation.
We, therefore, hold that on the order for costs made in this case, theland sold by the Fiscal was not liable to be sold. In this view, the appeal .fails and must be dismissed with costs.
USOOF JOONOOS v. ABDUL KUDDOOS