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Present: Bertram C.J. and De Sampayo J.
NANAYAKKARA v. JUAN APPU.
78—D. 0. (Inty.) Colombo, 49,403.
Administrator personally liable forcosts—Actionby proctor against
administrator for costs—Land belonging to administrator and otherheirs cannot be seized under writ against administrator.
The fact that a judgment-debtor -has a right of indemnity against a thirdparty does not entitle a judgment-creditor to sell the property of that thirdparty under a judgment against hiB debtor.
Where a proctor obtained judgment against an administrator personallyfor cost due to him, the fact that the administrator had a right of indemnityagainst the other heirs would not entitle the selling of property belonging tothe other heirs on the decree against the administrator.
Bbbtbau C.J-—I have no doubt that if the Judge had before him all theparties, and if there were money at his disposal for the purpose, he wouldmake a direct order rendering the assets of the persons, who were boundto indemnify the administrator, liable directly. But thSt is not the case here.
T'HB facts appear from the judgment of the District Judge(P. E. Pieris, Esq.):—
This is an action to partition a land. of about 20 acres shown in theplan Z. The original owner was a certain Luke de Zilva. Those claimingunder him in the case are content tq waive 3 acres of the land in favour of theoriginal defendants. At Luke's death in 1907 his estate was administered byhis brother Paul. He brought the action in 31,745 of this Court as administrator.Subsequently, because he failed to pay his proctor’s fees, the proctor brought theaction C. R. 34,441 against Paul. Though in the caption he was only describedby hie personal name, it is obvious from the plaint that the proctor sued himin his character of administrator. The decree in the case described Paul as“ the said defendant, ” and ordered him to pay a sum of money to the proctor.Thereupon, the proctor took out writ, seized his land, and the Fiscal put upfor sale “ the right, title, and interest of " Paul, whose name was givenin the conveyance P 1, and who was further described there as “ the defendantin the said case. ” Plaintiff's claim is founded on P 1. In the meantime Luke'swidow had conveyed her moiety by D 1 to first added defendant, and the latterhave raised an issue as to the effect of the Fiscal’s conveyance. What was con-veyed on P 1 ? It seems clear that our law is that when an administrator bringsan action in his representative capacity he is personally liable in costs, unlessthe Court order otherwise. In. this case in the action brought by Paul no costsof the other side were ordered, but it ‘ is hardly open to doubt that thefees payable by him to his own proctor will fall into the same category. Thecontract of the proctor was with the administrator. It. would seemclesr from the English authorities which have been
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cited thatthe liabilityon the contract, so far as theproctor wasconcerned,
lay on the administrator personally. No doubt it was open to theadministrator under proper circumstances to make the payment out ofthe estatefunds. Butthat isnot the same as sayingthat itwas open
to the proctor to sue the estate for a debt contracted, not by the deceased,bus by the administrator. I think that all the plaintiff can claim underthe Fiscal's transfer is only the personal interest which Paul had in theland.
The evidence which has been placed before me as to the devolutionof title on the death of Irake is misleading, as I find from the deedsfiled thathis mothersurvivedhim. The plaintiffisgiven an oppor-tunity toplace morereliableevidence – before meon. AugustId. On
his failure his action will be dismissed. For the present he will pay the costs ofthe first date of trial.
A. St. V. Jayawardene (with him E. Q. P. Jayatileke andNagalingam), for the appellant.
Samarawickreme (with him J. W. de Silva and Candkaratne),for the respondent.
January 13, 1920. Bertram C.J.—
This seems to me a very clear case. The question arises in apartition action. It appears that one Paul de Zilva, one of the sixbrothers and sisters of Luke de Zilva, who died intestate, acted asthe administrator of his estate. He took action with regard to theland now in question, but failed to pay the costs of his proctorin that action. The proctor thereupon instituted against him asuit for his costs and obtained judgment. The proctor sued theadministrator personally, although in the plaint he mentionedthat the defendant was the administrator of the estate, and that heacted at the request of the defendant as such administrator. Thedecree was entered against the defendant personally. Executionwas taken out in pursuance of that decree, and in the Fiscal’s salethat followed it was expressly stated that it was the interest of thedefendant that was being sold. The defendant, as a matter of fact,had a special interest as heir of the deceased.
It is now contended that what was really being sold was, not the.interest of the defendant in that action as heir, but the' interest ofthe whole estate, that is to say, the interest of the defendant and allthe other heirs, on the ground that the defendant in that action wasadministrator. I do not think that that proposition is in the leasttenable. The position is clearly explained in the case of Nugarav.Palaniappa Chetty.1 It is there said that an executor and adminis-trator who is on the record as plaintiff or defendant is liablepersonally for costs in the same way as any other person. Thequestion whether he is entitled ultimately to recover the amountof the costs which is ordered to pay from the estate is a totallydifferent matter. As between the parties to the action, an executor
1 (1911) Id N. L. R. 397.
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or administrator is individually responsible for the costs which heis ordered to pay. It does not matter in the least that in theplaint it was stated that the defendant in the action in whichexecution was levied was acting as administrator, because thelaw is that when he is so acting he is personally liable. How,'then, on a judgment against a person on which he is personallyliable, and on which nobody else, in the first instance, is liable, canexecution be levied against the property of other persons who are notparties to the judgment?
It is perfectly true that the execution-debtor had in this casea right of indemnity against the other heirs. But that does notaffect the matter. The fact that a judgment-debtor has a rightof indemnity against a third party does not entitle a judgment-creditor to sell the property of that third party under a judgmentagainst his debtor. An order of Court is clearly always necessarywhere it is sought to make the assets of such a third party available.
Mr. Jayawardene cited to us the case of In re Raybovld,1 andrelied upon the following passage: “ When once a trustee isentitled to be thus indemnified out of his trust estate, I cannotmyself see why the person who has recovered judgment against thetrustee should not have the benefit of this right to indemnity and godirect against the trust estate or the assets, as the case may be,just as an ordinary creditor of a business carried on by a trustee orexecutor has been allowed to do, instead of having to go throughthe double process of suing the trustee, recovering the damagesfrom him, and leaving the trustee to recoup himself out of the trustestate. I have the parties interested in defending the trust estatebefore me, and I have also the trustee, and he claims indemnity,and, assuming that a proper case for indemnifying him is made bythe evidence, I think his claim should be allowed. ”
I have no doubt that also in our Courts, if the Judge had beforehim all the parties, and if there were money at his disposal for thepurpose, he would make a direct order rendering the assets of thepersons, who were bound to indemnify the administrator, liabledirectly. But that case is not this case., We are not considering,whether the Court in such a case is in a position to make such anorder. We are considering the question. What was sold at theFiscal’s sale? In my opinion what passed by the fiscal’s sale waswhat is stated to have passed in the Fiscal’s transfer, that is to say,the interest of Paul de Zilva and nobody else.
1 am of opinion, therefore, that the appeal should be dismissed,with costs.
De Sampayo J.—I agree.
1 (1900) 1 Ch. 119.
Printed at the Government Press, Ceylon.
NANAYAKKARA v. JUAN APPU