156-NLR-NLR-V-55-E.-SIMEON-SILVA-et-al.-Appellants-and-A.-K.-N.-SIVASUPRAMANIAM-AMBALAM-Respo.pdf
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Simeon Silva v. Sivasupramaniam Ambcdam
SL
Present: Gratiaen J. and Gunasekara J.E. SIMEON SULVA et al., Appellants, andA. K. N. SIVASUPRAMANIAM AMBAEAM, RespondentS. C. 19—D. C. (Inty.) Negombo, 5,275
Abatement of action—Death of sole plaintiff—Circumstances when drn order of abate-ment may be made—Civil Procedure Code, ss. 395, 396, 402, 403.
Where, after the death of a sole plaintiff, his legal representatives delayedfor nearlyf eighteen months to have themselves substituted under section 395-of the Civil Procedure Code—
Held, that an order of abatement of the action could Irs entered under section.396 of the Civil Procedure Code.-
GUNASEKARA J.—Simeon. Silva v. Sivasupramaniam Ambalam
56?
_A_PPli!AL from an order of the District Court, Negombo.
W. Jayewardene with P. Ranasinghe, for the respondents-appellant.N. K. Choksy, Q.C., with C. Renganathan, for the petitioner-respondent,
*Cur. adv. wit.
May 28, 1954. Gunasekaba J.—
This is an appeal from an order of the District Court of Negombo,made upon an application by the respondent Sivasupramaniam Ambalam,setting aside an order made by it nineteen years earlier for the abate*rnpnt of an hypothecary action.'
The action, which was for the recovery of a sum of Its. 5,000 andinterest secured by a b6nd dated the 17th November, 1927, was institutedon the 6th March, 1931, by the plaintiff’s attorney Kowenna SinniahPulle, through his proctor Mr. Wijayaratnam, against two defendants,of whom the first was sued as the mortgagor and the second was joinedas a subsequent encumbrancer. The record does not have the journalsheet or sheets containing the entries made before the 4th October,1949, except* fcr a snfe.ll portion of the first sheet. The parties to theappeal are agreed, however, that the following steps were taken. Thecourt accepted the plaint on the 6th March, 1931, and ordered the issueof summonses on the defendants, returnable on the 17th April. Onthe 17 th April the returnable date was extended to the 7th May. Ohthe 7th May the court ordered that the case be laid by, and on the30th September, 1932, it ordered the abatement of the action.
What appears on so much of the first journal sheet as is still to befound in the record is as follows :—
".In the district court of n
No. 5275It. M. K.
Ambalam
Class : V
Amount: Its. 5,825.
Nature,: BondVs.
Procedure : Regular
P. Silvanother ”
(overleaf)
“ for Plff.
issued on Defts :e now for 7/5aM. H. K.
J.
nam for Plff.ain not IssuedLay by
M. H. K.D. J. ”
664 .
GUiSTASEKARA J.—^Simeon Silva v. Sivasupramaniam AmbcHam
The plaintiff had died in India on the 8th April, 1931, after the insti-tution of the action and before it was laid by, leaving a last will by whichhe appointed two persons named Andiappen and Ramanathah' Chettiaras executors and the respondent Sivasupramaniam Ambalam, whois his adopted son, his sole heir. The will was proved before the DistrictCourt of Colombo on the 7th July, 1932, and probate was granted onthe I4th February, 1934, to Andiappen’s Attorney Kowenna Rihnia.liPulle (who had been the plaintiff’s attorney) and Ramanathan Chettiar.The inventory and the final account filed in the testamentary case areverified by affidavits by Sinniah Pulle dated the 12th December, 1934,and the 24th October, 1935, respectively. He died in 1940, and' the1st defendant (the mortgagor) died on the 24th September, 1948.^
It does not appear from the record of the mortgage action, or so muchof it as is still in existence, that either of the executors took any stepsin this action. On the 8th September, 1949, a petition was submittedto the district court by the respondent asking that he should be substi-tuted in the place of the deceased plaintiff, and the appellants and certainother persons in the place of the deceased first defendant, and that theorder for abatement be set aside. The appellants tand two other partiesobjected that the respondent had no status to make i!he application.At an inquiry held on the 7th December, 1950, the respondent wasgranted time till the 25th January, 1951, to file an amended petitionand affidavit. He did so, making the same application and statingamong other things that R amanath an Chettiar had applied to theDistrict Court of Colombo for the recall of the probate that had beenissued to him and that he himself had thereafter been appointed executor.It appears that actually he was granted letters of administration onthe 18th April, 1951. After an inquiry into the amended petition thelearned district judge made order on the 28th November, 1051, settingaside the order for abatement and substituting the respondent in theplace of the deceased plaintiff and the 2nd appellant Juwan Silva (towhom letters of administration in respect of the estate of the 1st defendanthad been granted on the 4th August, 1950) in the place of the deceased1st defendant.‘
The ground of the learned judge’s order was that the order for theabatement of the action was void for the reason that in the circumstancesof this case the court had no power to make such an order under section402 of the Civil Procedure Code. That section provides that “ if aperiod' exceeding twelve months …. elapses subsequently tothe date of the last entry of an order or proceeding in the record withoutthe plaintiff taking any step to prosecute the action where any suchstep is necessary, the court may pass an order that the action shallabate ”. There can be no doubt that this section can have’no applica-tion in a case where the reason for the plaintiff’s not prosecuting thea.ction is that he is dead (Sellamma v. Palavasam x), but I can find nojustification for the view that it was under this section that the courthad purported to make the order for the abatement of the action. It
{1939) 41 N. L. R. 186.
GUNASEKARA J.—Simeon Silva v. Sioasu.pra>naniam Ambalam565
is provided by section 395 that “ in case of the death of a sole plaintiff…. the legal representative of the deceased may, where the right
to sue saiVives, apply to the court to have his name entered on therecord in place of the deceased plaintiff, and the court shall thereuponenter his name and proceed with the action ” ; and by section 396 that“ if no such application be made to the court by any person claimingto be '*the legal representative of the deceased plaintiff, the court maypass an order that the action shall abate ”. In the present case, at thetime of the order for abatement no application under section 395 had* been made to the court by the plaintiff’s legal representatives, althoughnearly eighteen months had elapsed since the death of the plaintiff.It ,was therefore open to the court, under section 396, to make an orderfor the abatement of the action. The actual terms of the order arenot before us, but th^> circumstance cannot raise a presumption thatthe order which the court had power to make under one provision oflaw purported to be made under another which gave it no such power.Quite apart from the presumption in favour of regularity, it seems tobe likely that the object of the order made on the 7th May, 1931, that thecase should be laid by, was to give the plaintiff’s executors an opportu-nity of rjakiqg^n application under section 395 to be substituted in hisplace. In my opinion the order for abatement was a valid order, andthe learned district judge’s view that it was void is erroneous.
In terms of section 403 of the Code the order could be set aside uponan application made by a person claiming to be the plaintiff’s legalrepresentative if the application was made within a reasonable time andit was proved that he was prevented by sufficient cause from continuingthe action. The facts relied upon by the respondent to show thatthese conditions were satisfied are stated as follows in his petition ofthe 25th January, 1951 :
“Owing to the deaths of Kowenna Sinniah Pulle and the 1st defend-ant and also due to the Petitioner’s absence beyond the seas and thefact that the other executor took no interest in the administrationproceedings, the Petitioner was prevented from continuing theaction and*recovering the moneys due.”
It appears from the evidence given by the respondent at the inquirythat thr absence beyond the seas to which he refers is an absence from1935 to 1949, when he was in South India. He suggests that whatprevented him from coming to Ceylon between 1940 (when SinniahPulle died) and 1949 was the war. He admitted that he took chargeof the plaintiff’s business in Ceylon in 1933 and that Sinniah Pullemanaged it for him as his agent until 1940. On the 18th November,1935, he signed a minute, which is filed in the testamentary case, accept-ing the correctness of the final account filed by the executors and con-senting to the “ estate being closed ”, and stating further that he had“ been in charge of the business from 4th December, 1,933, and assistedthe executors in filing the accounts in this case ”. Nevertheless, accord-ing to him it wa«i only in 1949, fourteen years after the filing of thefinal account in the testamentary case, that he learnt of this mortgage
566
FERNANDO A.J.—Chinasehera v. Commissioner of Income Tax
action ; although it is mentioned in the inventory filed in the testamentary-case in December, 1934. The explanation, such as it is, that has beentendered by the respondent of the delay to make the application inquestion is in effect a plea that he and those whom he succeeded as theplaintiff’s legal representative had been negligent. It cannot be saidthat the conditions upon which an order for abatement can be set asidehave been satisfied.*-
The order appealed from .must be set aside and the respondent’sapplication must be dismissed. The respondent must pay the appellantstheir costs in this court and the court below.
Gratiaen J.—I agree.
Appeal allowed.