031-SLLR-SLLR-2002-3-JAYASENA-v.-DAYASENA.pdf
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Jayasena v. Dayasena
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JAYASENA
v.DAYASENA
COURT OF APPEALDISSANAYAKE, J. ANDSOMAWANSA, J.
CA NO. 1148/93DC HAMBANTOTA NO. 1601/MFEBRUARY 21, 2002
Prescription – Prescription Ordinance, sections 5, 13, 14 – Mortgage bond – Actionfiled after 12 years – Maintainability – Removal of disabilities – Civil ProcedureCode, section 53.
The plaintiff-respondent's wife 'N' executed a mortgage bond on 13. 10. 1975.She died on 14. 12. 1998. The plaintiff-respondent filed a testamentary actionon 22. 06. 1982, and letters of administration were granted on 27. 03. 1987.The plaintiff-respondent instituted the present action on 13. 10. 1987, after12 years and 1 month of the execution of the mortgage bond. The District Courtgranted the reliefs prayed for.
On Appeal –
Held:
On the death of 'N' on 14. 12. 1980 her rights on the mortgage bonddevolved not only on her husband the plaintiff-respondent but also onher children who were minors at that time.
Thus, sections 13 and 14 of the Prescription Ordinance came intooperation and in terms of section 14 the right of action that accrues toa party entitled to sue shall be subject to the disabilities set out insection 13, until death or removal of such disability. The protection. . . under sections 13 and 14 is a statutory protection which cannot betaken away.
In terms of sections 13 and 14 until the disability of the children is removedeither by children attaining majority or death, the running of prescriptionis suspened.
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APPEAL from the judgment of the District Court of Hambantota.
D. S. Ashok with S. S. Herath, B. Jayasuriya and Kanchana Cuman for defendant-appellant.
Plaintiff-respondent absent and unrepresented.
Cur. adv. vult.
April 05, 2002
A. M. SOMAWANSA, J.
This is an appeal preferred from the judgment of the learned DistrictJudge of Hambantota in case No. 1601/M delivered on 30thNovember, . 1993, whereby the learned District Judge held in favourof the plaintiff-respondent and granted relief as prayed for in the prayerto the plaint to recover a sum of money due on the Mortgage Bondbearing No. 396 dated 13. 09. 1995 marked P1 but restrictedthe total sum recoverable from the defendant-appellant to doublethe sum lent and borrowed on the Mortgage Bond. The plaintiff-respondent's pleaded case was that the defendant-appellant borrowedand received a sum of Rs. 5,000 at 18% interest per annum fromthe plaintiff-respondent's deceased wife Nandawathi Dissanayake,payable on demand on the said Mortgage Bond marked P1, that thissum of money is justly due and owing from the date of the saidMortgage Bond P1 until payment in full and that the defendant-appellant has failed and neglected to pay any sum though theretooften demanded. These facts are admitted by the defendant-appellantin his answer.
Further, it is averred by the plaintiff-respondent that his wifeNandawathi died on 14. 12. 1980 and he applied for lettersof administration on 22. 06. 1982 to the District Court of Hambantota
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and the letters of administration were granted to him on 27. 03. 1987and the instant action was instituted on 13. 10. 1987.
The defendant-appellant admitted in his answer the execution ofthe Bond and the receipt of the sum of Rs. 5,000 at 18% interestper annum as set out in the plaint. However the defendant-appellant,prayed for dismissal of the plaintiff-respondent's action on the basisthat the action is prescribed in law as the action has been instituted10 years after the execution of the Mortgage Bond marked P1.
At the trial on 31. 08. 1992, four issues were raised by the plaintiff-respondent while the defendant-appellant raised two issues on the sobasis that the action is prescribed in law. The two issues raised bythe defendant-appellant were taken up as preliminary issues and theparties were directed to file written submissions and it appears thatthe written submissions were filed by both parties.
However, on an examination of the record it appears that nodetermination has been made on these two issues. According to theproceedings dated 23. 02. 1993, on an application by the parties, thelearned District Judge has decided to take up the trial based on issues1 to 7 raised on 31. 08. 1992 inclusive of the two issues raised bythe defendant-appellant.40
At the trial only the plaintiff-respondent gave evidence and thedefendant-appellant did not lead any evidence. The learned DistrictJudge by a very short judgment held in favour of the plaintiff-respondentstating that his predecessor in office had already determined thatthe action was not prescribed. It appears that this statement of thelearned District Judge is incorrect, in that as I have observed earlierthe two issues raised by the defendant-appellant on the basis thatthe action was prescribed was never answered by his predecessorin office. The learned Judge who delivered the judgment has presided
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on 23. 02. 1993 and he himself has decided to take up the trial based 50on issues 01 to 07 raised on 31. 08. 1992 inclusive of issues 06and 07 raised by the defendant-appellant on 31. 08. 1992. Therefore,the learned District Judge has clearly erred on this point of fact.
Let us now consider the question of prescription raised by thedefendant-appellant in his two issues. The relevant facts are, theplaintiff-respondent's wife Nandawathi executed the Mortgage Bondmarked P1 on 13. 10. 1975. She died on 14. 12. 1980. The plaintiff-respondent filed testamentary action No. 92/T in the District Court ofHambantota on 22.06.1982 marked P2 and the letters of administrationwere granted on 27. 03. 1987 marked P3 and the plaintiff-respondent 60instituted this action on 13. 10. 1987. Hence, the action has beeninstituted 12 years and 01 month after the execution of the MortgageBond. However, on the death of Nandawathi the executrix of theMortgage Bond on 14. 12. 1980 her rights on the Mortgage Bonddevolved not only on her husband the plaintiff- respondent but onher children also who were minors at that time. Hence, it appearssections 13 and 14 of the Prescription Ordinance came into operation.
In terms of section 14, the right of action that accrues to a party entitledto sue shall be subject to the disabilities set out in section 13 untildeath or removal of such disability.70
Sections 5, 13 and 14 of the Prescription Ordinance referred toby counsel for the defendant-appellant read as follows:
Section 5. "No action shall be maintainable for the recoveryof any sum due upon any hypothecation or mortgage of anyproperty, or upon any bond conditioned for the payment of money,or the performance of any agreement or trust, or the payment ofpenalty, unless the same be commenced in the case of an instrumentpayable at, or providing for the performance of its condition withina definite time, within ten years from the expiration of such time,
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Jayasena v. Dayasena (Somawansa, J.)
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and in all other cases within ten years from the date of suchinstrument of mortgage or hypothecation, or of last payment ofinterest thereon, or of the breach of the condition.
Section 13. Provided nevertheless, that if at the time whenthe right of any person to sue for the recovery of any immovableproperty shall have first accrued, such person shall havebeen under any of the disabilities hereinafter mentioned, that isto say –
infancy,
idiocy,
unsoundess of mind,
lunacy, or
absence beyond the seas,
then and so long as such disability shall continue the possessionof such immovable property by any other person shall not betaken as giving such person any right or title to the said immovableproperty, as against the person subject to such disability or thoseclaiming under him, but the period of ten years required by section3 of this Ordinance shall commence to be reckoned from the deathof such last-named person, or from the termination of such disability,whichever first shall happen; but no further time shall be allowedin respect of the disabilities of any other person:
Provided also, that the adverse and undisturbed possession forthirty years of any immovable property by any person claimingthe same, or by those under whom he claims, shall be taken asconclusive proof of title in manner provided by section 3 of thisOrdinance, nothwithstanding the disability of any adverse claimant.
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Section 14. Provided also, that if at the time when the rightof action in respect of any of the causes referred to in sections5, 6, 7, 8, 10 and 11 of this Ordinance shall accrue, the personso entitled to sue shall be subject to any of the said hereinbefore nomentioned disabilities, then the several periods of limitationhereinbefore provided shall not commence to run until the removalof such disability or the death of such person, whichever first shallhappen; but no further time shall be allowed in respect of thedisability of any other person."
It is contended by counsel for the defendant-appellant that theplaintiff-respondent had the opportunity to file action within a periodof 10 years from the date of the said Mortgage Bond marked P1 bytaking steps as provided by law for such purpose in section 539 (g)of the Civil Procedure Code and thus defeat any plea of prescription. 120However, the plaintiff-respondent has not been vigilant and have sleptover his rights and in such circumstances Courts do not grant reliefto such persons. It appears that the plaintiff-respondent has takenrefuge under these provisions to explain his delay in filing action withina period of ten years. Be that as it may I am inclined to take theview that provisions contained in sections 13 and 14 of the PrescriptionOrdinance justify the explanation given by the plaintiff-respondent asto the delay in instituting this action.
I might also add that if the plaintiff-respondent so desired he couldhave even waited much longer by making use of the provisions '3°contained in sections 13 and 14 of the Prescription Ordinance so asto defeat any plea of prescription as the protection he receives undersections 13 and 14 of the Prescription Ordinance is a statutoryprotection which cannot be taken away.
In the instant case on the death of Nandawathi the executrix herrights on the Mortgage Bond devolved on her husband the plaintiff-
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Jayasena v. Dayasena (Somawansa, J.)
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respondent as well as the minor children. In the circumstances, interms of sections 13 and 14 of the Prescription Ordinance until thedisability of the children are removed either by children attainingmajority or by death, the running of prescription is suspended. I mightalso add that the two cases cited by the defendant-appellant haveno application to the facts of the instant case as the question dealtin one case was whether an administrator is entitled to sell the landedproperty of an intestate when the letters of administration containno such limitation of his powers, and the other dealt with the useof the word 'bond' in Ordinance, No. 22 of 1871.
In the light of the above reasoning I am of the view that to sendthe case back after nearly 15 years to the original Court for the DistrictJudge to answer the issues would be an unfruitful exercise and inany event, it appears to me that the defendant-appellant could neversucceed in his plea of prescription. In the circumstances, I dismissthe appeal.
DISSANAYAKE, J. – I agree.
Appeal dismissed.
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