074-NLR-NLR-V-02-GOONERATNE-v.-PERERA-et-al.pdf
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GOONERATNE v. PERERA et cd.D. C., Colombo, 6,636,
1896.
September 29,
Civil Procedure Code, s. 404—“ Pending the action," meaning of.
The words, “ pending (he action,” as used in section 404 of theCivil Procedure Code, mean “ before final decree.”
*J*HE facts of the case appear in the judgment of Bonseb, C.J.
Van Langenberg, for appellant.
Drieberg and Wendt, for respondent.
29th September, 1896. Bonseb, C.J.—
This case was originally brought on a promissory note. Boththe maker and the payee were dead, and the case was brought bythe administratrix of the payee against the administrator of themaker.
When the case came on for hearing it resulted in a compromise,and judgment by consent was given for a smaller sum than theplaintiff claimed, and a larger sum than the defendant admittedto be due. There is no reason to suppose that that compromisewas not a bond fide transaction, and within the powers given todefendant’s proctor by his proxy. Execution was then taken outupon that judgment, and certain moneys were brought into Court,the results of sales of the property of the maker of the note. Beforethe plaintiff obtained an order to have that money paid out to herthe defendant left the Island.
His letters of administration were recalled, and letters of adminis-tration de bonis non were granted to the present appellant.
The plaintiff, for some reason or another, assigned her decree tothe present respondent, who then apphed under section 339 of theCivil Procedure Code to have himself substituted as plaintiff onthe record, and also to have the present appellant substituted forthe Original defendant on the record. The present appellantopposed that application, but the District Judge allowed it. Heappeals against that order, and the chief ground of appeal is thathe ought not to have been substituted as defendant. He saysthat there was no power for the Court to make such substitution.The Court professed to do it under section 404 of the Civil Pro-cedure Code, which provides for the case of an assignment of.devolution of any interest pending the action. The Indian Courtsin interpreting the Indian Code have held that these words
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1890.
September 29Bonskr, C. J.
“ pending.the action,” which occur in the corresponding section inthe Indian Code, apply only to assignments and devolutions beforedecree. That interpretation is not binding on us, and had t.hiasection stood alone, I should have been inclined to interpret thewords as signifying at any time before the decree was finallyexecuted; but when these words are considered with the othersections in the chapter in whicii they occur, it is impossible tocome to any other conclusion than that the words mean beforefinal decree. For in every one of these cases it clearly applies toassignment or devolution of title before final judgment. Forinstance, in sections 393, 394, 395, which deal with cases of assign-ment of a plaintiff’s interest, the words “ right to sue survives ”are used, which implies that the cause of action is still subsisting.These words would be inapplicable when the proceedings hadarrived at a final judgment. The right to sue would then havebeen merged in the decree.
Again, in section 398, where the case of the assignment ordevolution of a defendant’s interest is dealt with, it expresslyprovides for the case of a defendant dying before decree. So, insection 399, which deals with the marriage of a female plaintiff ordefendant, and provides that the case may nevertheless be “ pro-“ ceeded with to judgment.” Finally, section 404 provides for“ other cases of assignment pending the.action.” Again, it shouldbe observed that in a previous part of the Code the cases of theassignment of a decree (section 339) and of the execution of a■ decree after the death of a judgment-debtor (section 341) havebeen dealt with. That is an additional argument for the con-struction I put on section 404. If that section does not apply,there is no section which applies to a case of this kind.
This is not a case of a judgment-debtor dying after decree, but itis a case of a judgment-debtor against whom a decree was madein his representative capacity ceasing, after decree, to hold thatcapacity and another person being appointed in his stead. But ifthere is no provision in the Code for such a case, we are empoweredby the Code to make a special order which will meet the justiceof the case. Now, is there anything in this order which is contraryto justice, which is unjust to the appellant ? If there is, thenthe order ought not to stand. For my part I do not see how theappellant can in any way be prejudiced by this order. The judg- -ment- cannot be executed against him personally. It can onlybe executed against the property of the deceased which has comeinto his hands, and has not been duly disposed of by him. It isby no means clear that it is necessary to make him a party, but atany rate it is convenient, and it is to the advantage of the estate
that he should be made a party in order that he may see thatnothing more may be exacted from the estate than is justly due.
There is, however, one part of the order of which I think he isentitled to complain. The respondent made this application forhis own benefit, but the Court has ordered the appellant to paypersonally all costs of the application. That order I do not thinkshould have been made.
We order that the costs in this Court and in the. Court belowbe borne by each party respectively.
1866.
September 29Bonsbb.C.J.
Withers, J.—
I concur,, and have nothing to add.