Jayatilake v Liyanage and another (Amaratunga, J.)
ARIYAWANSA DE SILVAv
INDUSTRIAL FINANCE LTD.
COURT OF APPEALUDALAGAMA. J„ ANDNANAYAKKARA, J.
A.L.A. NO. 1404/2001
C.COLOMBO 10361/MRNOVEMBER 20,2002
Civil Procedure Code, sections 221 (1), 221 (2) and 241 – Accident – Originaldefendant dies – Substitution of son – Ex-parte decree – Personal liability -Validity of decree cannot be impunged at the time of execution.
The petitioner who was the rider of a motor cycle at the time the accidentoccurred had on his pillion, his sister who was seriously injured. He instituted
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action on behalf of his sister for the recovery of damages. The original defen-dant died and his son was substituted. The matter went ex parte. The applica-tion for writ of execution against the 2A defendant was rejected by the trialCourt.
The 2A defendant has been made personally liable for the damagescaused. He has not objected at any stage to his substitution and hadstood passively till the ex parte decree was entered against him. He can-not now complain of the invalidity of the decree.
The question whether 2A defendant is personally liable or not cannot bedetermined as there is a valid decree.
2A defendant having failed to participate at the trial and failed to lodgeany kind of objection to his substitution will have to accept the decree asit is.
Per Nanayakkara, J.
“If the decree has made the 2A defendant personally liable, its validity cannotbe impugned at the time of execution of the decree”
“Once writ is executed in pursuance of the decree the 2A defendant is still atliberty to prefer an application under section 241."
APPLICATION for leave to appeal from the order of the District Court ofColombo.
Case referred to:
Dias v De Mel (1984) 1 Sri LR 263
J.C. Boange with J.M. Wanninayake for plaintiff-respondent.
P. Epa for 2nd defendant-respondent.
Cur. adv. vult.
December 10, 2002
Rejection of an application made for the issuance of writ ofexecution, consequent to an ex parte judgment delivered in anaction instituted against 2A defendant and two other defendants,for the recovery of damages and other consequential reliefs in
CA Ariyawansa de Silva v Industrial Finance Ltd. (Nanayakkara J.)195
respect of personal injuries sustained by the plaintiff-petitioner-peti-tioner (petitioner) in an accident has given rise to this application byway of revision.
The petitioner who was the rider of the motor cycle bearingNo. 110-2534 at the time the accident occured had on his pillion, hissister, who was seriously injured in the accident, filed a separateaction for the recovery of damages in respect of injuries sustainedby her.
As the original defendant against whom action was initiallyinstituted died during the pendency of the action, her son (as 2Adefendant) was substituted in her place.
After a chequered history, in which the 2A defendant haddefaulted to take necessary steps and participate in the trial, thecourt had eventually, on 3.7.99 entered ex parte judgment againsthim. An appeal and application for revision of the ex parte judgmentagainst 2A defendant had also been rejected by the Court ofappeal. It is in that background that the petitioner had made anapplication for the execution of the ex parte decree which wasrejected by the learned District Judge.
At this stage it would be opportune for this court to focus itsattention on the impugned order which is sought to be revised bythis application.
It should be observed at the very outset, that the learnedDistrict Judge although by his order has correctly analysed section222(1) and particularly subsection (2) of the Civil Procedure Codeas it applies to a decree issued against a party in his capacity asthe legal representative of the deceased person. He has failed todo so with reference to the decree as issued in this case, The ques-tion whether decree applies to 2A defendant has to be determinedby reference to the very decree sought to be executed.
A careful reading of the decree makes it evident that the 2Adefendant has been substituted in place of the original 2nd defen-dant and that 2A defendant has been made personally liable for thedamages caused in the case. At the time of execution of a decreethe court has to be guided by the decree sought to be executed, ifthe decree has made the 2A defendant personally liable, its validi-
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ty, as rightly pointed out by the learned District Judge cannot beimpugned at the time of execution of the decree. If the 2A defen-dant was not satisfied with the decree he should have taken stepsto have it set aside at the appropriate time.
It should also be observed, the 2A defendant who had notobjected at any stage to his substitution in place of the originaldeceased defendant and had stood passively till an ex parte decreewas entered against personally, cannot now complain of the inva-lidity of the decree.
The learned District Judge has rightly adverted to this aspect 50of the matter in his judgment. He has also in my view correctly ana-lyzed the legal position in regard to section 222(1) and (2) of theCivil Procedure Code. But in my view what he has failed to realizeis that the decree had made 2A defendant personally liable for thedamage which the 2A defendant cannot believe.
Learned District Judge in his order holding that the petitionerhad failed to establish that the 2A defendant had either property ofthe deceased or had control of the same and had not duly appliedat the time of the application of writ and dismissed it. He has alsoplaced reliance on Dias v.de /WeA1> which in my view, applies only 60when a party has been sued in a representative capacity, and thedecree is not binding on him personally.
As far as the instant case is concerned the 2nd defendant hadbeen sued not in his representative capacity, but personally againsthim. Therefore the question whether 2A defendant is personallyliable or not cannot be determined at this stage as there is a validdecree. The 2A defendant having failed to participate in the trial andalso failed to lodge any kind of objection to his substitution in placeof the deceased 2nd defendant will have to accept the decree as itis. The 2A defendant who had been remiss and negligent right 70throughout the proceedings in the District Court, has thought it fit toobject to the issuance of writ when he realized that it was againsthis interests.
Therefore taking into consideration all the circumstances, I amof the view that the writ against 2A defendant is in conformity withthe decree, should be issued and direct the learned District Judgeto issue writ against 2A defendant in accordance with the decree
Careem v Sivasubramaniam and another (Udalagama, J.)
entered in the case. Once the writ is executed in pursuance of thedecree the 2A defendant is still at liberty to prefer an applicationunder section 241 of the Civil Procedure Code.
Therefore taking into account all the circumstances, I set asidethe order dated 17.06.2001 of the learned District Judge and directhim to issue writ in accordance with the decree. The petitioner isentitled to costs in a sum of Rs. 5000/-.
UDALAGAMA, J. I agreeApplication allowed.
ARIYAWANSA DE SILVA v. INDUSTRIAL FINANCE LTD