087-NLR-NLR-V-23-NONNOHAMY-et-al.-v.PODISINGHO-et-al.pdf
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Present: Ennis and Porter JJ.
NONNOHAMY el of. v. PODISINGHO et al.
466—Z>. C. Colombo, 165.
Action by administrator—Action dismissed with costs—Seizure ofproperty belonging to intestate in execution of .decree for costs—Must the personal property of the administrator be discussedbefore levying execution against the property of the deceased—Civil Procedure Code, s. 474.
Section 474 of the Civil Procedure Code merely provides anadditional remedy against the executor or administrator personally.Where, therefore, an administrator brings an action as adminis*fcrator. and is ordered to pay costs, the defendant may seize theproperty of the intestate in execution of his decree for costs.
rpHE facts are set ont in the judgment of the Acting DistrictJudge (K. Balasingham, Esq.):—
This is an action under section 247 of the Civil ProcedureCode. The first defendant brought an action as administratorof one Sanchiappu’s estate against second, third, and fourthdefendants. The action was dismissed, and he was ordered topay the costs of the defendants in that case. The words of thedecree ore “that the said plaintiff do pay to the defendants thecosts of the action.1’ The plaintiffs are heirs of Sanchiappo.The second, third, and fourth defendants seized the entirety of theshares of three lands belonging to the estate of Sanchiappu inexecution of the decree for costs.
The plaintiffs claimed a portion of the lands seized as theirs*Their contention is that the decree being one for costs it has to bepaid by the administrator personally, and that the property ofthe estate of the deceased should not be seized in execution. Icannot agree.
No doubt the administrator is personally liable* But thereis nothing in section 474, Civil Procedure Code, to support theproposition that the creditor cannot seize the estate of the deceasedunder a decree for costs. The. plaintiff relies in 3 C, W* B. 328.The facts of that case are totally different.
I dismiss plaintiff’s action, with costs.
1922.
1988,
t 320 )
J; 8. Jayawardene, tot the appellant.—An administrator iapersonally liable for the costs of an unsuccessful action. Executioncannot be levied against the heirs, as they were not'parties to theaction. At any event, the property of the administrator, who ispersonally liable, should be seized in execution in the first instance.Council cited 3 0. W. E. 329,14 N. L. E. 327, and 21N. L. B. 610..
April 4,1982. Ennis J.—
This was an action under section 247 of'&e Code by unsuccessfulclaimants to have it declared that their shares in certain landwhich had been seized in execution were not liable to seizure. Thelearned Judge found in favour of the defendants, and the plaintiffsappealed. It appears that the first defendant is the administratorof the estate of one Sanchiappu, and the second, third, and fourthdefendants are judgment-creditors, and the plaintiffs are theheirs of Sanchiappu. The administrator himself is an heir ofSanchiappu. In an action by the administrator, as adminis-trator, the plaintiff was ordered to pay the costs. The second,third, and fourth defendants then attached certain propertybelonging to the estate of Sanchiappu. The heirs now contendthat by virtue of section 474 of the Civil Procedure Code executionfor costs should run against the property of the administratorpersonally, and that the estate of Sanchiappu is not liable. Certaincases have been cited to us, namely, Edirishamy v. De Silva1 andNugara v. Palaniappa Chetty* to show that an administrator ispersonally liable for.the costs by virtue of>the provision containedin section 474. In the present case, however, this is not thequestion which arises for decision. The question here is whetherthe heirs can say that the estate is not liable until the administratorpersonally has lost all his property or his person has been seized.In other words, all remedies given by the Code to obtain satisfactionof the judgment must be exhausted against the personal propertyof the executor before the property of the estate is liable. In myopinion the learned Judge is right in holding that section474 does not prevent the seizure of the property belongingto the estate. Section 474, in my opinion, provides merely ahadditional remedy against the executor personally, and does not. do away with the ordinary rule that the unsuccessful party is topay the costs of an unsuccessful action. I am of opinion that thesection was meant for the further protection of an unsuccessfuldefendant. In the circumstances I would dismiss the appeal.
Porter J.—I agree.
Appeal dismissed.
'{2397) 2 N.L. R. 242.
M19X2) 14 N.L.R.321.