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Present: Loos A.J.
AMMANULLA v. SINNATAMBY et al.
200—C. B. Batticaloa, 18,920.
Assignment of decree—Civil Procedure Code, s. 339—Execution against
A got judgment against B. After B’s death, B'a son C got anassignment in his favour of A’s decree, and issued writ of execution*against the widow of B and his other children.
Held, that C cannot execute the decree against them.
“ The order of thelearnedCommissioner appearstome to be
bad for several* reasons.
“ The effect ofthe order is toenable thesubstituted plaintiff,
who is practically in the position of a co-debtor of the appellants,to execute the decreeagainsthis co-debtors, someofwhom are
minors, and whocannot, therefore,haveadiatedtheinheritanceof
their father, thethird defendant,andfurther,toauthorizethe
seizure and sale evenof theprivate property ofthesubstituted
defendants, whichdid not belong tothe thirddefendant,and
which they had not inherited from him."
rJ1HE facts are set out in the judgment.
Bartholomeusz, for first, third, and fourth substituted defendants,appellants.—Respondent is the assignee of the decree, and he isalso a co-debtor with the substituted defendants. He cannot, there-fore, apply for execution against them. Section 389, proviso 2,
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Civil Procedure Code. Application for writ against second, third,fourth, and fifth substituted defendants cannot succeed as they areminors. Minors cannot adiate the inheritance, and are not liableto be sued for the debts of their father (Pathman v. Kanapathipillai 1and Robert v. Abey war dene 2). As regards the widow, execution canissue, if at all, against her only to the extent of the property of theintestate which she has adiated.
Tisseverasinghe, for substituted plaintiff, respondent.—Section339, proviso 2, of the Civil Procedure Code does not apply. Itapplies only to co-defendants on record. The respondent was nota co-debtor at the time the decree was entered. It is too late nowto object to the substitution of the defendants. This objectionought to have been taken in the District Court. New points cannotbe raised in appeal for the first time (Gordon Brooke v. Peera Veda; 3Appuhamy v. Nona *).
■Cur. adv. vult.
November 14, 1919. Loos A.J.—
The plaintiff in this case sued the three defendants for the recoveryof a sum of Bs. 250 alleged to be due to him upon a promissorynote for Bs. 125 made by the first and second defendants in favourof the third defendant, and endorsed by the latter to him. Judg-ment was entered against the defendants, who did not defend theaction.
Thereafter the third defendant died, and his widow and children,with the exception of one of them, were substituted as defendantsin his place on the application of the child who was not substituteda defendant, and who at the same time had himself substituted asplaintiff, the original plaintiff having assigned to him the decreeobtained by him in this case.
Two of the children substituted as defendants in place of thethird defendant were minors, and a, guardian ad litem, was appointedover them.
The substituted plaintiff then applied for execution of the decree,and notice having been served on the substituted defendants, thefirst, third, fourth, and fifth substituted defendants showed causeagainst the application, but the learned Commissioner after inquiryallowed the application, holding, that there was nothing to showthat the money paid by the substituted plaintiff to the plaintiffbelonged to his father. The application for execution was byseizure and sale of the substituted defendants’ property.
The first, third, and fourth substituted defendants appeal againstthe order allowing the application, on the ground that the substitutedplaintiff is himself one of the heirs of the deceased third defendant,and accordingly -one of the judgment-debtors, although he suppressed
»(1898) 1 Br. 118.
1 (1912) IS N. L. R. 323.
* (1905) 9 N. L. R. 302.*'(1912) 15 N. L. R. 311.
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that fact in his application to be substituted as plaintiff, and tohave the heirs of the third defendant substituted as defendants,and, therefore, not entitled to have the decree executed against theappellants, as assignee of the decree, by virtue of proviso 2 tosection 339 of the Civil Procedure Code.
Another ground urged in the petition of appeal is that the orderof the Commissioner is bad as against the substituted defendants,who are minors.
On behalf of the substituted plaintiff-respondent it was urgedthat the appellants could not rely on the grounds urged in thepetition of appeal, for those points of law had not been raised inthe lower Court, and counsel relied on the cases of Qordon Brookev. Peera Veda 1 and Appuhamy v. Nona 2 in support of his contention.In the first place, there is nothing in the record to indicate thatthose points were not raised in the lower Court ; and in the nextplaoe, there are sufficient facts before the Court in this case to enableit to consider the points of law raised, even if they have been raisedin appeal for the first time. No issues at all were framed1.
The order of the learned Commissioner appears to me to be badfor several reasons.
The effect of the order is to enable the substituted plaintiff, whois practically in the position of a co-debtor of the appellants, toexecute the decree against his co-debtors, some of whom are minors,and who cannot, therefore, have adiated the inheritance of theirfather, the third defendant, and further, to authorize the seizureand sale even of the private property of the substituted defendants,which did not belong to the third defendant, and which they hadnot inherited from him.
Such an order is in the teeth of the authority of the decisions inMuttiah Chetty v. Maricar 3 and Robert v. Abeywardene et alA
I am of opinion that the appeal must be allowed, with costs, andthat the order must be set aside.
* (1905) 9 N. L. R. 302.* (1907) 11 N. L R. 50.
« (1912) 15 N. L. R. 311.* (1912) 15 N L. R. 323.
AMMANULLA v. SINNATAMBY et al