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COURT OF APPEALAMERATUNGA, J. ANDBALAPATABENDI, J.
CALA NO. 294/01D.C.WELIMADA NO-197/SP1OCTOBER 1,2002
Trusts Ordinance, sections 84, 112 (1) (ii), 112(2) and 112(5) – Vesting order-Relief under section 112(1) (ii) – Is it by regular procedure or summary pro-cedure? – Action – Cause of action – Order – Decree of court and order ofcourt -Civil Procedure Code, sections 5, 6, 8, 217, 387 and 595.
The question to be determined was whether an action filed in seeking reliefsunder section 112(1) (ii) could be maintained under regular procedure.
The District Court held it was by way of regular procedure.
Piyadasa v Sudu Banda (Balapatabendi, J)
Where a person seeks a vesting order under section 112 of the TrustsOrdinance, the procedure must be by way of summary procedure andnot by way of regular action. Section 595 of the Civil Procedure Codegives an indication of what the proper procedure should be.
A regular action ends always in a decree. An action where an order/order nisi could be obtained is by way of summary procedure. A decreemay command the person against whom it operates to do certain acts orit may declare a right or status. It is difficult to see how a vesting ordercould be incorporated in a decree entered at the end of a regular action.
APPLICATION for leave to appeal from an order of the District Court of
Cases refered to:
Marikkarv Lebbe – 52 NLR 193.
Hunterv Sri Chandrasekera – 52 NLR 54
Balasunderam v Raman – 76 NLR 259 at 262
Hemasiri Withanachchi for defendant-petitioner.
Gamini Jayasinghe with Jayantha de Silva for plaintiff-respondent.
November 08, 2002
The plaintiff-respondent instituted an action in the District 01
Court on 23.11.2000, praying for the following reliefs, in the plaint.
a “vesting order" under section 112(1) ii of the TrustsOrdinance directing the defendant-petitioner to transfer the proper-ties morefully described in the schedule to the plaint, in favour ofthe plaintiff-respondent.
to nominate a suitable fit and proper person or the Registrarof the District Court under section 112(5) of the Trusts Ordinance to
transfer and effect the vesting order.
costs and such other reliefs as the Court thinks fit.
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The plaintiff-respondent in his written submissions admits thefact that the procedure adopted by him was regular procedurealthough an affidavit had been filed with the plaint.
The plaintiff-respondent averred in his plaint, that he has paidthe consideration to purchase of undivided shares of the propertymentioned in the deed No.13501 dated 07.07.1982 although thedeed was executed in favour of his brother the defendant-petition-er. And the defendant-petitioner is holding the said property in trust.
The defendant-petitioner has been served with summons, directinghim to file answer. The defendant- petitioner in his answer dated 20
took up the preliminary objection as to the procedureadopted by the plaintiff-respondent to wit “That an application forvesting order under section 112(i) (ii) of the Trusts ordinance, with-out seeking any other reliefs should be made by way of summaryprocedure and not by way of regular-procedure, therefore the plaintis liable to be dismissed in limine”.
The learned District Judge made an order on written submis-sions filed by both parties on 27.07.2001 and rejected the prelimi-nary objection raised, and permitted the plaintiff-respondent to pro-ceed with the action under regular procedure.30
This appeal was preferred against that order.
Section 112(1) ii of the Trusts Ordinance states that “In any ofthe following cases, namely,
1) Where it is uncertain in whom the title to any trust propertyis vested; or
ii) Where a trustee or any other person in whom the title totrust property is vested has been required in writing to transfer, theproperty by or on behalf of a person entitled to require such trans-fer, and has willfully refused or neglected to transfer the property fortwenty eight days after the date of the requirement.4C
The Court may make an order (in this Ordinance called a“vesting order”) vesting the property in any such person in any suchmanner or to any such person in any such manner or to any suchextent as the Court may direct”.
Also section 112(5) states that “In all cases in which a vestingorder can be made under this section the Court may, if it is more
CAPiyadasa v Sudu Banda (Balapatabendi, J)205
convenient, appoint a person to transfer the property, and a trans-fer by that person in conformity with the order shall have the sameeffect as an order under this section, and every person so appoint-ed for the purposes of all transactions, proceedings, and formalitiesincidental to the said transfer shall have all the powers and capac-ities of the trustee or other person in whom the trust property wasvested, and shall be deemed to be the duly authorized attorney ofsuch trustee or other person for the purposes aforesaid.”
The question to be decided in this case, is whether an actionfiled in seeking reliefs under section 112(1) ii could be maintainedunder the regular procedure.
The contention of the defendant-petitioner, was that the actionof the plaintiff-respondent as averred in the plaint, was miscon-ceived in law, and the procedure adopted (regular procedure) wasirregular and bad in law.
The contention of the plaintiff-respondent was that the plaintfiled by him in this action, based on a cause of action, institutedunder regular procedure to which an application for relief by way ofa ‘vesting order’ under section 112(1 )ii of the Trusts Ordinance hasbeen tacked on. Section 84 of the Trusts Ordinance states that:
“Where property is transferred to one person for a considera-tion paid or provided by another person, and it appears that suchother person did not intend to pay or provide such consideration forthe benefit of the transferee, the transferee must hold the propertyfor the benefit of the person paying or providing the consideration”.
On a perusal of the plaint filed by the plaintiff-respondent it isapparent that the facts averred in the plaint elicit a transaction thatcomes within the provisions of section 84 of the Trusts Ordinance.In those circumstances the plaintiff-respondent could have claimedreliefs under section 84 of the Trusts Ordinance, for declarationunder regular procedure.
In Marikkarv Lebbe ("*) It has been held that “Under section84 of the Trusts Ordinance, the plaintiff in entitled to a declaration,that the defendant held the property as a trustee for the plaintiff andto a conveyance of the premises by the defendant to the plaintiff.
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The para (9) of the plaint states that ‘the cause of actionaccrued to the plaintiff (respondent) was under section 112(1 )ii ofthe Trusts Ordinance, and had prayed for an Order of Court againstthe defendant (petitioner) to transfer the said property to the plain-tiff (respondent), by way of a ‘vesting order.’
The plaintiff-respondent has cited in his written submissionsthe case, Hunter v Sri Chandrasekara&). In Hunter v SriChandrasekera (supra), It has been held that “Where a personasks for a vesting order under section 112 of the Trusts Ordinance, 90without asking for further remedy on a cause of action, the proce-dure must be by way of summary procedure and not by way of reg-ular action." In the same case, Dias,J said that: “In my opinionwhere a person asks for a vesting order under section 112 of theTrusts Ordinance, without asking for any further remedy, the pro-cedure is by way of summary procedure and not by way of regularaction. By proceeding by way of regular action the petitioner whomoves for a vesting order under section 112 would lose the vitaland fundamental benefits of section 112(2). The class of cases forwhich section 112 was designed are those in which the court would iooact summarily and speedily, and not by means of a protracted reg-ular action. Section 595 of the Civil Procedure Code gives an indi-cation of what the proper procedure in a case like this should be. Ifin regard to the appointment and removal of trustees summary pro-cedure is necessary, it would appear to be equally necessary whenit becomes the duty of the Court to vest a person with the status oftrustee. The relief indicated in section 112(5) appears to be appro-priate to summary procedure than to regular procedure.”
In Balasundaram v Raman^), Wimalaratne, J.observed that“A“vesting order” is one that could more appropriately be incorpo- norated in a final order made at the conclusion of summary proce-dure, under section 387 of the Civil Procedure Code, which readthus “The Court, after the evidence has been duly taken, and thepetitioner and the respondent have been heard shall pro-nounce its final order in the matter of petition.”A regular action,
on the other hand ends, always in a decree. A decree may com-mand the person against whom it operates to do certain acts or itmay declare a right or status – section 217 of the Civil ProcedureCode. It is difficult to see how a vesting order could be incorporat-
CAPiyadasa v Sudu Banda (Balapatabendi, J)207
ed in a decree entered at the end of a regular action. I am thereforeof the view that when a person asks for a ‘vesting order’ under sec-tion 112, without asking for any further relief, the appropriate pro-cedure is by way of summary procedure under chapter xxiv of theCivil Procedure Code.”
In Balasundaram v Raman (supra) in the Court of Appeal (thenthe apex Court) a bench of three judges held that “the petitionerwas prima-facie entitled to initiate proceedings for a ‘vesting order’under section 112 of the Trusts Ordinance. When a vesting order isprayed for, summary proceedings are more appropriate, for suchproceedings end in an order and not in a decree as in a regularaction. An application under section 112 is not an action under sec-tion 5 of the Civil Procedure Code.”
Therefore, I am of the view that it is a settled principle of lawthat when the plaintiff- respondent instituted his case under theTrusts Ordinance and solely asked for relief under section 112(1 )iiof the Trusts Ordinance, and has not asked for any further remedyor relief, he should have instituted proceedings under summaryprocedure.
The learned District Judge in his order has misconceived sec-tion 8 of the Civil Procedure Code (Amendment, No.53 of 1980).Section 8 of the Civil Procedure Code states that “Save and exceptactions in which it is by this Ordinance or any other law speciallyprovided that proceedings may be taken by way of summary pro-cedure every action shall commence and proceed by a course ofregular procedure, as hereinafter prescribed.”
Section 5 of the Civil Procedure Code defines ‘an action’ as,‘action’ is a proceeding for the prevention or redress of a wrong.
Section 6, states:- “ Action” is, every application to Court forrelief or remedy obtainable through the exercise of Court's poweror authority, or otherwise to invite its interference, constitutes anaction.
Every action is based on a ‘cause’ of action – which ends in a‘decree’ or an ‘order’.
‘Order’ – means the formal expression of any decision of acivil court, which is not a decree, (but there is an exception- An
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order rejecting a plaint is a decree within the definition of adecree).
A person who instituted an action under section 112 of theTrusts Ordinance, moves Court for a vesting ‘order’ though there isno specific procedure prescribed in section 112 of the Trusts isoOrdinance. It is implied that, an action where a 'decree' could beobtained is by way of regular-procedure (in a regular-action)
An action where an 'order' or 'nisi order’ could be obtained isby way of summary procedure.
Therefore, It is obvious that a plaintiff who asks for only a'vesting order’ under section 112 of the Trusts Ordinance – at theend he should get an ‘order’ of court, but not a ‘decree’ of Court-And to get an ‘order’ or (order nisi) of Court the procedure shouldbe summary proceedings.
For the reasons set out in my judgment, I set aside the order 170made on 27.7.2001 by the learned District Judge as he has erredin law, by upholding that the plaintiff-respondent could proceed withthe action under regular procedure. Plaint filed under regular-pro-cedure is rejected. Appeal is allowed without costs.
AMARATUNGA, J. – I agreeApplication allowed.
PIYADASA v. SUDU BANDA