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In the Matter of the Last Will and Testament of DonCornelis Dias.
D. C., Colombo, No. 777.
Civil Procedure Code, s. 712—Discovery of property- withheld from an• executor—Costs.%
In the case of a petition under section 712 of the Civil ProcedureCode to discover property withheld from an executor, if therespond-ent puts in an affidavit claiming to be owner of such property,the only thing for the Court to do is to dismiss the petition- Noexamination or cross-examination of the respondent can bepermitted.
The Court can order no costs in proceedings for discovery undersection 712.
^JpHE facts of the case sufficiently appear in the judgment
Sampayo, for appellants.
Dorhhorst, for respondent.
11th November, 1896. Bonser, C.J.—
In this case the parties and the Court seem to have misunder-stood the procedure laid down in chapter LIV. of the CivilProcedure Code.
The appellants are the executors of a will. The respondentis a lady in whose possession' was certain property which hadbelonged to the testator, and which the appellants claimed ashis legal. personal. representatives. They thereupon presented a
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petitrofa under section 712 Of the Code and cited the respondent toattend to be exaniined. The respondent attended in person, ahdforsome reason which does not appear was represented by an advocate.She put in an affidavit, in which she swore that she was the owner ofthis property. Thereupon the District Judge, instead of dismissingthe proceedings as section 714 requires, ordered the respondent tqgo into the box to' be examined. She was cross-examined at greatlength and re-examined, and then the Judge delivered judgmentfinding that this property was hers, and dismissing the petition,and he ordered the executors to pay the costs personally.
Now it is quite clear that as soon as the affidavit was presentedthe only thing for the Court to do was to dismiss the petition.The Court had no power to dismiss the petition with costs, for thereare no costs in thes£ cases. The present respondent was not thereas a party to contested proceedings. She was simply cited asa witness under section 712, and section 713 provides that personsso cited need take no notice of the citation unless it is accompaniedwith payment or tender of the sum required by law to be paid ortendered to a witness subpoenaed to attend a trial in a civil court.
The order was therefore wrong in finding facts which the Judgehad no power to find, and in ordering costs to be paid which hadnot been incurred, and the order must be amended accordingly.
If the person summoned as a witness under sections 712 and 713claims the property, then the parties are to be remitted to themachinery of an ordinary action for the determination of theirrights.
The appellants will have the costs of this appeal.
La ware, J.; agreed.
In the Matter of the Last Will and Testament of DON CORNELIS DIAS