SAMARASEKERA ,Appellant, and SECRETARY ,D.C MATARA et al , Respondents

021-NLR-NLR-V-51-SAMARASEKERA-Appellant-and-SECRETARY-D.C-MATARA-et-al-Respondents.pdf


90 MASXAYAKK J.—SuiWHisknra o. ihc*vti>y, IJ. 0». M'Htiva
1949Present: Basnayake and Grallaen JJ.SAMARASEKJ2RA, Appellant, and SECRETARY, V. C.,MATARA ef <»/., Respondents
S. c. 77—D. C. Maiam, tG*27
Civil PfOtidart CW<—Adminietmtion of eetaf(~~Appoinlmc->l of S&rrtaryof Coart as c-<hrtini*frntnr—Chongr of indivulual Mditsp the t'Jfloc—fljftet— Section 520.
Section 52ft of lhoCiv-1 Procedure Cuclo comcmplcues the appou'I'Se^nt,us wlmi; u!*irator, of the Secretary of the Court and not of t-’o ir’ivfihinlholding tho oflluo. Jxrttors of lichmuwtmtiou should rliorj’oo hatuhlroi^xl 1 o tho " Secretary of tho Court ” ami a chon^o of th) Individualsholding ilio odk'O will not nlVwt the appoh'tmo;u once tnsulo.
Ari'K.VL ftV’iit a judgment of tin* District Jutk’e, Malum.
;V. A', H’cCMHouria, K.C., with .1. V. .Kvlnsing/i-ini, and ChristieScHcviratM, for the iippollunt.
H. V. Parent, K.O., with M. //. .-I. Azeez, for 1st rcs|Kmdent.
V. Jittnawake, for 2nd respondent.
Car. uit. nA.
April 19, 1940. Raswayake X—
On May 10,1944, one Dooa Anfonna de SHra Karunansyako Hamioe,
the widow of Snohmneac atias Kzihimoc^o l)nn Awb*vas <)r Silva,aid A. A- S. K'l'inkcratoe, tlic* :y?eretsry of I he DWii-t Coert. r.ho Sndbeen appointed administrator of her Sato httdmwiV, for the
recovery of » sum of Its. 7,409 which da* had paid lo om K. J. 0«dl)NSin settlement of a mortgage del* incurred by Iter doeeMed hoshemd.On limciW I, 1941, decree absolute was onUrcd giving tlm plaintiffjudgment hi tho sum of Rs. 7,400 with interest and cost?. On April 30,I0W. the proctor for the plaintiff appears to have represented to theco »U thnfact that C. F. A. VaUiyaguru, tho ofiiccr who had succeededMr. Xanakcratne at Secretary of tho District Court, refused to takenotice of taxation of tho bill of costs on the ground that- he had not yetboon appointed administrator. Tho following order was thereuponmade on July II, UM1{:—
*' The Secretary of this Court is now appointed official administratorin Testy 4075. Mr. A. P. Daluwatia lor plaintiff moves that he boordered to take notice of the hid and that Hie same may be taxed.tM him lake notice and the chief dot of the court tax the bBI against
the deceased** estate.’*
Thereafter in execution of the decree on November 19,1946, certain landsbelonging to the estate of the deceased were sold. On December 17,1946,the present Sooretary filed a petition, naming the plaintiff and one Sirinorls
01
11ASNAYAKE J—£ainarcsel*fa v. Stcretary, D. CMnlara
de Silva Samarasekera as respondents, in which he moved to have thesale in execution of tho plaintiffs decree set aside on the followinggrounds:—
“ (a) The Official Administrator against whom decree had beenobtained in this case has since ceased to function and tho 2nd respondenthas not taken proper stops to have the petitioner substituted in roan(sic) of the defendant Mr. A. de S. Kanakaratne tho then OfficialAdministrator.
“ (b) No seizure of the property sold bas been effected and publishedas required by the provisions of the Civil Procedure Code.
“ (e) No proper publication of notices of sale have (nc) been effectedas required by section 255 of the Civil Procedure Code and as a resultof such non-publication these pro)>erties which are of the value of overHa. 10,000 Have boon sold for a sum of R-s. 4,045. Substantial lass hastherefore been caused to tho heirs of the said Naot-unnege aliasNaurunncge Don Andrayas do Silva. An affidavit relating to theabove-mentioned facts have (sic) already been filed by RandoinbageBabunanpn de Silva who is an heir of the above-mentioned estate.
“(«?) The 1st respondent fraudulently made it known to suchmembers of the public us who (sic) were present on the occasion of thealleged sale that the sale was one among the heirs of the above-mention**), estate and that the members of the public were not entitledto offer any bids.”
Tho learned District Judge held that there was a material irregularityin the conduct of the sale and that tho proceedings were irregular as thepresent Secretary had not been substituted in the voom of his predecessorwho had ceased to hold office at the time of the .mile.
Learned counsel for the appellant submitted that proceedings againsttho successor in office of Mr. Kanakeratne were hau as the secretary of acourt is not a corporation sole. Ho also canvassed tho finding of theJudge that there was a material irregularity in the conduct of the sale.Learned counsel has not satisfied us t hat the Judge’s finding that therehas been a material irregularity in tho conduct of the sale is wrong, andthe appeal must therefore fail.
As the question of the competence of the present secretary to act asadministrator has been tho subject of decision by tho learned trial Judge,and as the matter has been argued before us, we wish to record ouropinion thereon.
Section 520 of the Civil Procedure Code which ompowers the court toappoint the secretary of the court as administrator reads :—
“Where there is no person fit and proj»er in the opiuion of thecourt to be appointed administrator in manner in the last precedingsection provided, or no such person is willing to be so appointed, andnot in any other case, the court shall appoint the secretary of thecourt such administrator
The section specifies the eircmnstauoos in which the secretary of the courtmay be appointed administrator. It contemplates the apj>ointment ofthe secretary of the court and not the individual holding the office ofSecretary at the time of the appointment. The letters of administration
821».82.'AVAKB 4.-—r. .1<cirtfry, V, v„ r*
ii» form No. 37 should he uddrCMSU-i to U.o ‘seorotary o* Um* court”,and not in tho instant case to t5m oeurcUry by uvmo. A changeoi the tr-.divuu'als ho-Umg ih> oflleo will not in out* view afty.-fc theoppofRtaienf. once made.
ft is dear from motion 520 that-tho court imd, In the instant ease,no poorer to nnooinfc .Mr. KanuUcratne administrator iu Id.* capacity-mi an ia'lh*ld«ud. (t- cannot therefore be s«ud that- t|v« uj^wintr.ionvattached to >f* Ar_.inkwat:ic, the indhriduiil who held iha oHivo at theIruo sh-.? odor under vxl-bii ~.<> wa* made.the sert-fory of tlus
eojrt i* ap:*oiv»te.lthe dnfis of ihai ofdce w *3 U-..> to he
perforated by rhc. r<:.'iOU foe the ii-ac ae:**g HUiiig the oilin'«? secretaryin the sat**! way a* *he oftN*r «fctSfes of ft-*-: sscretacy. OitlhiarhVa personCJUtlifJw bo appni il^ti on .rhniiMratcr ••Lik*.:: !»fc ernoent. IWl m thecase of ap;ntiati*mb wider scrlioi; 5*i0 neither tho cown nor lh*s-jomtary tuts a choice.
Tho soutenlfoii o? laarmd coiin-.r.: >.vuu!>i result in the c-.irtoua sHuattmiof « yttumi vr-?if> »r.$ wafted i.o h:>M the oiJiw of secretary c;*M being inism offiw '.»? admhist.vrtor **;*;i-efcery of the outlet, for »v can fed nopror Won *>f the Code by which a change of administrator a pointed underi»?0 of tho Civ*!! Procedure (Vw can le cirwtui on the wsws gro«n<lthat the iadividuol heMms the office of secretary at tite tiasfc of appoint'inont ha* been snceotah.-a by another. ft is wei! known U>et (ho holderof the oifice of secretary i:> in a service in which he io liable U* ho trans-ferred and from which tie may resign at h»s choice or be dhmi’tted at theploftisurc of Mio Grom If lwuued coiuMni* submissiw: v.ei>; to prevailall those uhn:ig(6 would not by thciiuiolvcs affect the appointment.Although suction. fi:i! of tho Civil Procedure Code requires the court totaVo .t'vcurlly for the duo Hfl-nini.stralion of tho cstafo from oven the.wur-otory of t-Ho court, the prascrihod form of aoenrit y creates certain<U£b.llf-k»s. I’OJ'ni No. Hd, •.vl*;.':h is the form of br>»ai pvo?eribcd by theCivU Procedure Cod*.*- !<•>• nso in t;»*.v an ndminiaraler r toiiirnih 8;e»hivy, rcr/is as ffdhnvs:
“Know nil men by thvso prer*-m.< that wo the administrator and….atul, . . .are hcM aracs lirudyI.^mukI unto
. . . . Gsendary <4 theof …. , the
sahl . … in the sum of … . n;pecs nrA the said….and….iu the sum of … .rupees each,
to Iw paid to thn miW fcwreiary . . .
This form cuimot hi law be used by the administrator appointed underflection i»2to of the Code lor if he <!<*** th<> secretary of the court will becontracting with himw.'lf- A r<cnson cannot in law contract with himself.Such a contract cannot be upheld even on the ground t!ut it is a contractby the natorcl men with the gtuui corporathm m4e. It has been heldthat a corporation i*h« caiuiot lease to tho natural person because thesame person cannot- bu Ixdh ksoor and lessee *. Nor can such a contractbe enforced for there has been no instance in tbo case Hooka in which thenatural man has sued the corporation aolc or the t^rpantfon sole ha»sued the natural man *•
1 flfllto v. Oromurrr {l?8t) & Mod, tl0,1, 304. (tranton i;orpor>rti<nx», 035.
1 JlfuMciW, Khq[iS. T- flW*
fPhe King r. Sugathadasn
Although the secretary of the court is not a corporation sole in thetrue sense of the term, having regard to the fact that the Civil ProcedureCode provides for the appointment of the secretary of the court, asadministrator it may safely be assumed that the legislature intendedthat the secretary of the court should possess all such attributes of acorporation sole as are neoessary for the proper discharge of his functionsqua administrator. SuchofficeetaUinto the category of quasi-corporationssole. These are generally officers of the Crown, who for certain purposesare in the nature of a corporation sole. Such quasi corporations sole arefamiliar in our statute law, as for example the Attorney-General underthe Civil Procedure Code and the Ceylon Savings Bank Ordinance, theGovernment Agent under the Land Acquisition Ordinance, and theSettlement Officer under the Land Settlement Ordinance.
Wo think we have sufficiently elaborated our view that the appoint-ment of the secretary of the court as administrator under section 520of the Civil Procedure Code is not an appointment of the individualholding the office of secretary but an appointment of the person for thetime being holding the office of secretary and that in the instant casethe secretary of the court has been rightly made a party to the proceedingsto have the sale set aside.
The appeal is dismissed with costs.
Gbatiakn J.—I agree.
Appeal dimitwi.