HEARNE J.—Latiff v. Seneviratne.
1938Present: Soertsz and Hearne JJ.
LATIFF v. SENEVIRATNE et al.
177—D. C. Kegalla, 7,452.
Execution of decree—Application by executor of plaintiff—No application for
Substitution—Civil Procedure Code, as. 339 and 395.
An application for execution of a decree may be made by the executorof a deceased plaintiff under section 339 of the Civil Procedure Code withnotice to the necessary parties.
The section 'does not contemplate that there should be an applicationfor substitution as distinct from an application for executions
Section 395 has reference to an application for substitution beforedecree.
Execution proceedings will not be set aside upon merely technicalgrounds when the execution has been substantially right.
Fernando v. Fernando (6 Weerakoon’s Reports 70) followed.
PPEAL from an order of the District Judge of Kegalla.
L. A. Rajapakse (with him C. R. Guneratne), for appellant.
N. E. Weerasooria (with him J. R. Jayewardane and Edirisuriya), forrespondents.
February 8, 1938. Hearne J.—
In this partition action a decree for compensation was passed in favourof the second plaintiff against the first defendant. The first defendantdied and the present appellant was substituted, in his place. The appealturns on the question of whether the sale of immovable property orderedby the Court in execution of the money decree at the instance of theexecutors of the second plaintiff is invalid. The validity of the sale hasbeen impeached for two reasons :"
“ The application for substitution of the executors of the secondplaintiff in place of second plaintiff was hot made as provided by law ".By this I understand that the application was not made by “petition”in accordance with the provisions of section 339 of the Civil ProcedureCode.
“ The said application was not allowed by the Judge and nosubstitution had in fact been made on the record in the case
In regard to (1) the argument would, I think, have been more correctlyformulated if it had been said that the application for execution had notbeen made as provided by law. Section 339 of the Civil Procedure Codedoes not, in my opinion, contemplate that there should be an applicationfor substitution as distinct from an application for execution. All thatis necessary is that' the transferee should file his application for execution,setting out the gounds on which he claims to be the transferee and the *
HEARNE J.—Latiff v. Seneviratne.
Court orders the application for execution to proceed or rejects it. If the' Court allows the application it also orders that the transferee’s name besubstituted for that of the original decree holder. It was pointed outthat a different view was taken by Schneider J. in Adawiappen v. Aboo-bucker Lebbe1. If this is so I would respectfully disagree with Schneider J.,and would follow Fernando v. Fernando reported in 6 Weerakoon’s Re-ports 70. In the latter case Middleton J. said: “ In my opinion theapplication (by the administrator of plaintiff who died after judgmentto be substituted for proceeding with execution) can and should be madeunder section 339 for execution with notice to the necessary partieswhen the Court may, if it thinks fit, substitute the administrator’s namefor that of the deceased plaintiff in the decree and the decree may beordered to be executed subject to the provisions of the Civil ProcedureCode Let us now put Counsel’s argument in this way—does the factthat the application for execution was not made by petition vitiate thesale? The application sets out all the relevant details, a formal declarationwas made that the details were true, the appellant who was given duenotice did not appear and the application for writ was allowed. Even ifthe application cannot be described as a petition I would follow theprinciple enunciated by this Court in Nanayakara v. Sulaima *, that “ inexecution proceedings the Court will look to the substance of the transac-tion and will hot be disposed to set aside an execution upon merelytechnical grounds when the execution has been found to be substantiallyright ”, and disallow the technical objection that has been taken.
In regard to the second argument that was urged upon us I agree withthe Judge who was dealing with an order made by his predecessor thatthe applications for substitution and for execution were both allowed.It does not, however, appear that although the application for substi-tution was allowed the names of the executors were in fact recorded onthe decree in place of the deceased second plaintiff. Does thisinadvertence on the part of the Judge vitiate the sale ? It is argued onthe authority of Abeyawardene v. Marikar *, that it does. In that casealthough the question of an application for execution by an executor wasbefore the Court, the effect of section 339 was not considered at all. TheJudges of the Court merely considered the effect of section 395. Thissection which requires a legal representative “ to have his name enteredof record” seems to apply to applications previous to decree and this isthe view which by implication Middleton J. took in Fernando v. Fernando(supra) which I have quoted. I do not, therefore, regard the case ofAbeyawardene v. Marikar (supra) as binding on us in the present case.It did not purport to be an interpretation of section 339.
The view taken of the corresponding section in the old Indian Code isset out in the judgment of the Court in Jogendra Chandra Roy v. ShyamDas*. “The Civil Procedure Code does not expressly provide for anapplication for substitution. There is no provision which rendersnecessary the actual substitution of the name of the legal representativefor the validity of the proceedings in execution. Section 232 merely
1 6 Ceylon Law Bee. 17.3 1 S. C. R. 192.
3 (1920) 28 N. L. B. 314.*36 Calcutta M3 at 558.-
MAXRTENSZ J.—Swaminathan v. Svppiah.
requires that the legal representative should apply for execution of thedecree and that his name should be brought on the record. This provisionwas substantially complied with in the case before us
In my opinion the executors complied with the provisions of section 339and it would be absurd to regard the sale as a nullity because the Judgefailed to perform a ministerial act. I would dismiss the appeal withcosts.
Soertsz J.—I agree.
LATIFF v. SENEVIRATNE et al