009-NLR-NLR-V-42-PERERA-v.-PUNCHI-APPUHAMY.pdf
Perera v. Punchi Appuhamy.
45
1940Present : Howard C.J.
PERERA v. PUNCHI APPUHAMY.
56—C. R. Avissawella, 18,050
Administration—Action by son of deceased payee of promissory note—Letters of administration granted pending action—Right to maintainaction—Civil Procedure Code, s. 547.
Plaintiff as eldest son of a deceased intestate instituted this actionon August 7, 1939. Letters of administration were issued to plaintiffonly on. November 3, 1939, on which date the promissoryl note on whichthe action was brought was prescribed.
Held, that the plaintiff had an interest in the estate which gave himthe right to institute the action and that, after obtaining letters ofadministration, he was entitled to proceed with the action.
A
PPEAL from a judgment of the Commissioner of Requests, Avissa-wella.
J. E. M. Obeysekere (with him H. W. Thambiah), for the plaintiff,appellant.
Cyril E. S. Perera (with him G. G. E. Rodrigo), for the defendant,respondent.
42/8
Cut- adv. vult.
46HOWARD C.J.—Perera v. Pauchi Appuhamy.
July H, 1940, Howard C.J.—
This is an appeal by the plaintiff from a judgment of the Commissionerof Requests, Avlssawella, dismissing his action with costs. The actionwas instituted on August 7, 1939, by the plaintiff as administrator of theestate of the late M. G. Perera of Kitulgala. Letters of administrationwere issued to the plaintiff only on November 3, 1939, on which datethe debt which was the subject-matter of the action was prescribed.At the time of the filing of the action the claim which ar.ose out of apromissory note was not prescribed. In dismissing the plaintiff’s claimthe learned Commissioner has held that the plaintiff had no status to sueon the note at the time the action was instituted. Counsel for theplaintiff in maintaining that the Commissioner came to a wrong decisionrelies on the cases of Hassen Hadjiar v. Levane Marikar 1 and Alagaka-wandi v. MuttumaV. In the first of these cases it was held that theprimary object of section 547 of the Civil Procedure Code is to protectthe revenue and that the words “ no action shall be maintainable ”mean only “ shall be capable of being proceeded with ”. In the secondcase it was held that it was open to anyone who has an interest in theproperty of a deceased to institute an action in respect of such propertyand to proceed to get, at any rate, an interim injunction prior to lettersof administration being granted. The words “ no action shall bemaintainable ” in section 547 of the Civil Procedure Code do not amountto the same thing as “ no action shall be instituted ”. If therefore,these cases are good law, it follows that the plaintiff was entitled to suethe defendant on the promissory note inasmuch as' being the eldest sonof the deceased he had an interest in property.
The respondent’s Counsel relies on the case of Mohamadu v. Jamis■Baas s. In that case an action was brought on April 30, 1925, to recovera sum of money alleged to be due by a deceased person. His heirs weremade defendants and being infants they appeared by their guardianad litem. On June 1, 1928, an amended plaint was filed in which theappellant who was the administrator appeared as sole defendant. Thelower Court had held that the amended plaint would date back to theoriginal plaint in. the case. This view of the law as pointed out byFisher C.J. was wrong inasmuch as the original action was against theheirs, not as persons representing the estate but as persons who havebecome possessed of the estate. The administrator was not the successorof the heirs in administration of the estate. He was an independent, person and the action against him must be taken to have begun on thedate on which he was made a defendant, that is to say on June 1, 1928,on which date the debt was prescribed. The case of Mohamadu v. JamisBaas (supra) has, therefore, no relevancy so far as the present case isconcerned. The plaintiff being entitled to institute proceedings onAugust 7, 1939, no question of the dating back of the proceedings fromNovember 3,1939, the day on which he was granted letters of
administration, arises.
In these circumstances the appeal must be allowed and judgmententered for the plaintiff with costs in this Court and the Court below.
Appeal allowed.
'15X.L.R.275.*22 X. f.. R. 111.1 32 .V. L. R. 61.