006-NLR-NLR-V-63-SARLIN-and-others-Appellants-and-JAMES-FERNANDO-and-another-Respondents.pdf
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Sarlin v. James Fernando
Present:Basnayake, C.J., and Pulle, J.SARLIN and others, Appellants, and JAMES FERNANDO and another,
Respondents
S.G. 148—D. C. Colombo, 28948{M
Civil Procedure Code—Sections 226 (1) and (2), 392, 394 (2), 398 et seq., 531, 534, 540—Death of defendant pending action—Substitution of legal representative—Proper person for substitution—Degal effect of improper substitution—Conditionsprecedent for substitution of widow as administratrix—Requirement of paymentof estate duty—Estate Duty Ordinance, s. 52—Execution of decree to pay money—Duties of Fiscal on receiving writ—Failure of Fiscal to demand paymentfrom debtor—Right of debtor to challenge validity of execution sale.
Under section 398 (1) read with section 394 (2) of the Civil Procedure Code,if, during the pendency of an action either in the District Court or the Court of 1
1 {1871) L. R. 3 P. C. 465.
Sarlin o. James Fernando
35
Appeal, a sole defendant dies leaving an estate not below the value of Rg. 2,500,it is only bin executor or administrator that the plaintiff can in law specify as theperson whom he desires to be substituted as the defendant. The substitutionof the deceased defendant’s widow has no legal effect until the power of adminis-tration has been conferred on her by Court by the issue of a grant of adminis-tration. The circumstances that the widow has applied for letters of adminis-tration in respect of the estate of the deceased and that the order nisi madeunder section 531 has been made absolute under section 534 does not makeher the administratrix, inasmuch as under section 52 of the Estate DutyOrdinance, the Court is forbidden to grant letters of administration until theCommissioner has issued a certificate that the estate duty for the paymentof which the administrator is liable under the Ordinance has been paid orsecured or that the administrator is not liable to pay estate duty under theOrdinance, and that certificate has been filed in Court.
The legal effect of the improper substitution of a legal representative in placeof a deceased judgment-debtor is to nullify an execution sale held after thedeath of the debtor.
When the Fiscal receives a writ for the seizure and sale of property in executionof a decree to pay money, the requirement of section 226 (1) of the Civil ProcedureCode is imperative that the Fiscal should repair to the dwelling-house or placeof residence of tho judgment-debtor and there demand from him, if present,the amount of the writ. Failure to comply with this requirement entitles thejudgment-debtor, or a person whom tho Court has substituted (even thoughwrongly) in place of a deceased judgment-debtor, to challenge, in the veryaction in which execution has been levied, the validity of tho seizure and sale ;it is not open to him to do so in a separate and independent action.
VVpPEAIj from an order of the District Court, Colombo.
Judgment was entered in favour of the plaintiff in an action on apromissory note. The defendant died while his appeal to the SupremeCourt was pending. The plaintiff thereupon moved the District Courtto substitute the deceased defendant’s heirs, viz. widow and minorchildren, in place of the deceased, and his application was allowed.Subsequently the appeal of the deceased defendant was dismissed on13th February 1956. On 18th May the plaintiff applied for executionof the decree, making the deceased as defendant and his widow as substi-tuted defendant. On 21st May the widow applied for stay of executionstating (a) that she had applied for letters of Ad ministration in respectof the intestate estate of her late husband, (6) that the certificate of theEstate Duty Commissioner was awaited. The application for stay ofexecution was refused. By precept dated 5th June 1956 the Fiscalwas directed to levy execution against the lands of the deceased. TheFiscal seized and sold on 18th March 1957 certain immovable property.On 4th April the widow filed a petition that the sale be set aside, but theapplication was refused by the learned District Judge. Thereupon the
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BASNAYAKJE, C.J.—Sarlin v. James Fernando
present appeal was. filed against the refusal of the District Judge to setaside the sale. It was submitted on behalf of the appellant that—
the appeal which had been preferred by the judgment-debtor,
prior to his death, was decided without the deceased defendantbeing represented by a person legally entitled to take his place,
that the order to execute the decree was obtained against a person
not entitled in law to take the place of the deceased,
that the execution sale was bad as the condition precedent of
demand of payment from the judgment debtor had not beenobserved.
H. V. Perera, Q.C., with Nimal Senanayake and Desmond Fernando,for Petitioners-Appellants.
H. W. Jayewardene, Q.C., with G. T. Samarawickreme and L. C.Senevirattie, for 2nd Respondent-Respondent.
Cur. adv. vult.
May 16, 1960. Basnayake, C.J.—
The facts of this case are briefly as follows :—On 21st May 1953James Fernando, the plaintiff, as holder in due course of a promissorynote for Rs. 4,000/- dated 28th October 1949 executed by his youngerbrother Stephen Fernando, in favour of Dr. P. Kulasinghe, sued himfor the recovery of the capital sum together with the interest thereon,and obtained judgment on 30th June 1954. On the same day the successfulplaintiff made application for writ of execution “ against the propertyof the defendant ” and it was allowed. The defendant lodged an appealand on 7th July 1954 took objection to the issue of writ while the appealwas pending. When the matter came up for inquiry counsel for theplaintiff stated that he had no objection to execution being stayed providedsufficient security was given in cash or property. The District Judgethen made order staying execution if the defendant furnished securityeither in cash or by way of immovable property in a sum of Rs. 6,000/-for the due performance of such decree as may ultimately be passed.
On 31st August a bond was tendered by the defendant and the Courtmade order “ Stay Execution
While the appeal was pending the defendant died on 5th June 1955,.and the following minute appears in the Journal of 28th June 1955 :
" Registrar, S. C. returns record as the appellant is reported dead,so that steps may be taken for substitution of heirs of the deceased. and the record thereafter be sent to the S. C. for determination of theappeal
BASNAYAKR, C.J.—Sarlin v. James Fernando
37
On 25th July 1955 the proctor for the plaintiff filed a petition supportedby an affidavit and moved that the widow and the four children of thedeceased be substituted in his place. On this petition the District Judgemade an order nisi, the material portion of which reads—
“ It is ordered that the 1st respondent be and she is hereby appointedguardian-ad-litem of the 2nd to 5th respondents (b) the respondentsbe substituted in place of the deceased defendant unless sufficientcause be shown to the contrary on the 12th day of September 1955 ”.
On 5th December 1955 the District Judge made order substitutingthe appellant and her children as defendants in place of the deceaseddefendant. The record was thereafter returned to this Court and on13th February 1956 the appeal of the deceased defendant was dismissedwith costs and the record was returned to the District Court. On 18thSlay 1956 the plaintiff made an application for execution of the decreenaming the deceased as defendant and his widow the appellant as substi-tuted defendant. The mode in which the Court’s assistance was requiredwas stated thus “ by issue of writ for seizure and sale of property ”.On 21st May 1956 the appellant’s proctor filed a petition supported byaffidavit and prayed that the application for writ be stayed in the abovecase till the issue of Letters of Administration in her favour. The petitiondisclosed—
{a) that the appellant had applied for Letters of Administration inrespect of the intestate estate of her late husband and orderabsolute had been entered in her favour,
(6) that the certificate of the Estate Duty Commissioner was awaited,and
that the appellant was not possessed of any means wherewith topay the plaintiff’s claim and costs.
On 21st June 1956 the appellant made an application for stay of executiontill the issue of Letters of Administration in her favour. This wasrefused.
The plaintiff then sought to recover his debt by the seizure of moneydue on a policy of insurance No. 727316 on the life of the deceased.
The insurance company took objection on the ground—
(а)that the money due under the Policy was only payable to the
executor, administrator or assigns of the deceased.
(б)that there was no debt due to the substituted defendants.
that the plaintiff was not entitled to compel the company to bringany monies due under the Policy until Letters of Administrationwere issued in respect of the estate of the deceased.
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BASNAYAItE, C.J.—Sarlin v. James Fernando
At the inquiry on 4th December 1956 the parties agreed on a courseof action which is recorded as follows :—
“ Mr. W. undertakes to issue a notice on the company after theletters are obtained, and the company undertakes to deposit the moneyin the testamentary case
Meanwhile by precept dated 5th June 1956 the Fiscal had been directedto levy execution against the lands of the deceased defendant in theseterms :—
“ Writ of Execution against Property
In the District Court of Colombo
Welikandage James Fernando of No. IffVihare Road, Mt. Lavinia
Against
Welikandage Stephen Fernando ofNo. 193 Grandpass, Colombo,deceased Defendant.
Parawahera Nipunachcharige SarlinFernando of No. 253 DuwapansalaRoad, Heenatiyangala, Kalutara.
Substituted Defendant and guardian-ad-litem of 2nd to 5th substituteddefendants-minors.
To the Fiscal for the Western Province,
Levy and make of the Houses, Lands, Goods, Debts and Creditsof the abovenamed defendant by seizure, and if necessary, by salethereof the sum of Rs. 4,000 four thousand rupees and interest thereonat 12 per cent, per annum from 28th October 1949 till date of decreeand thereafter legal interest on the aggregate amount of the decreeat 5 per cent, per annum till payment in full and costs of suit taxedat Rs. 1,662*65.
Which the said plaintiff has recovered against the said defendantby a Judgment of this Court bearing date the 30th day of June 1954and have that money before this Court on or before the 6th day ofJune 1957 to render to the said plaintiff and inform this Court for whatsum or sums, and to what person or persons, you have sold the saidproperty respectively and pay all monies levied under this writ to theseparate account of the plaintiff; and have you there this mandate.
By order of the Court
Signature illegible
Clerk of Court 5>
5th June 1956.
BASNAYAKE, C.J.—Sarlin v. James Fernando
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On 29th June 1956 the Deputy Fiscal, Kalutara, to whom it wasendorsed by the Fiscal Western Province, made the following endorsementto the Fiscal:
“ The Fical, W. P.
Colombo.
My officer reports that he searched, for the substituted defendantat the given address but he was not to be found there and he furtherreports that there is no premises bearing 253 at Duwapansala Road,Heenatiyangala.
The Writ and Proctor’s letter dated 15.6.56 are returned herewithunexecuted ”.
Thereafter the Fiscal appears to have seized on 25th January 1957and sold on 18th March 1957 premises Nos. 191 and 193 GrandpassRoad valued at Rs. 25,000 for a sum of Rs. 13,600 to Salanchi MukadangePiyadasa of Ranungala in Kalutara District. It would appear from itsdescription that this is the very property that the deceased mortgagedto the Secretary of the District Court as security for the stay of Execution.On 4th April 1957 the appellant filed a petition that the sale be set aside.After setting out the history of the litigation she stated that the purchaseris a nephew of the plaintiff to whom she had let the premises on herhusband’s death and whom she was seeking to eject at the time of the sale.She also stated that the plaintiff is living in the same premises. Severalgrounds were urged in support of the petitioner’s prayer. But the onlygrounds relevant to the points argued by learned counsel are :—
that no demand had been made from her personally or as Guardian-
ad-litem of 2nd, 3rd, 4th and 5th substituted defendants ather place of residence or dwelling place No. 235, Duwa PansalaRoad, and
that the 1st petitioner does not reside at 253 Duwa Pansala Road.
The District Judge refused her application. In doing so he said :
“ In this case the Petitioner knew of the application for writ, andshe knew that the property had been seized. She must have knownthat, if she did not pay the amount due on the decree, the propertywould be sold. No substantial injustice has been done to her by thefact that no demand had been made for payment by the Fiscal, andon that ground the Petitioner must fail
This appeal is from the refusal of the learned District Judge to set asidethe sale.
It is submitted on behalf of the appellant that—
the appeal was decided without the deceased defendant beingrepresented by a person legally entitled to take his place,
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BASNAYAKE, C.J.—Sarh'n v. James Fernando
(6) that the order to execute the decree was obtained against a personnot entitled in law to take the place of the deceased,
that the sale is bad as the condition precedent of demand ofpajTnent from the judgment-debtor had not been observed.
shall now proceed to examine the above submissions. It is settledlaw that on the death of an appellant an appeal abates. When the rightto sue on the cause of action survives the abatement is temporary, inthe sense that the right to proceed is merely suspended, and may berevived. When the right to sue on the cause of action does not survivethe appeal comes to an end and cannot be revived. Our Civil ProcedureCode does not prescribe a procedure for reviving an appeal. But ithas been the practice for quite a long time to remit the record to theoriginal court on this court being notified by counsel, as amicus curiae,in open court of the death of an appellant, in order that, where actionmay properly be taken under Chapter XXV of the Civil Procedure Code,such action may be taken. Although in proceedings under that chapterit does not appear that strict proof of death is always insisted on I amof opinion that such proof is necessary.
Section 392 of that code provides—“ The death of a plaintiff ordefendant shall not cause the action to abate if the right to sue on thecause of action survives In the instant case on the fact of the deathof the appellant being notified to this court it appears to have made theorder that the record be remitted to the original court so that steps maybe taken for the substitution of the heirs of the deceased in his place,and this was done and the record was returned to this court thereafterThe Registrar’s communication quoted above on which the plaintiffrespondent seems to have acted does not contain an order of this courtthat the heirs of the deceased be substituted. It is for the party on whomthe duty of taking the necessary steps is imposed by the Civil ProcedureCode to advise himself as to what in law is the correct step to be takenand to take that step. Now section 398 provides that when the soledefendant dies the plaintiff may make an application to the court,specifying the name, description, and place of abode of any personwhom he alleges to be the legal representative of the deceased defendant,and whom he desires to be made the defendant in his stead. In section398 and the other sections of Chapter XXV the expression “ legal re-presentative ” means an executor or administrator or in the case of anestate below the value of two thousand five hundred rupees the nextof kin who have adiated the inheritance, (s. 394 (2) ). In the instantcase the estate is not below the value of two thousand five hundredrupees and it is only the executor or administrator that the plaintiff
BASNAYAJEOE, C.J~.—Sarltn v. James Fernando
41
respondent could in law have specified as the person whom he desiredto be made the defendant instead of the deceased and the court hadno power to enter on the record in the place of the deceased defendantthe name of any person other than his executor or administrator. Thesubstitution of the deceased defendant’s widow and children appearingby their guardian-ad-litem not being authorised by law has no legaleffect and does not carry with it the consequences of a proper substitutionunder section 398. The proceedings subsequent to the death of thedefendant appellant have therefore been against persons who in lawcannot be substituted in place of the deceased in the suit. A personwho is not entitled to take the place of the deceased defendant appellantin the suit and whom the court has no power to appoint to take his placehas no locus standi in judicio. The deceased defendant was thereforenot in law represented at the hearing of his appeal which was dismissedwithout such representation.
The execution proceedings in the original court after the dismissal ofthe appeal are of no effect as they have been taken against the widow ofthe deceased who cannot in law take the place of the deceased defendantand execution levied against the property left by the deceased defendantin proceedings in which the name of the legal representative of thedeceased has not been entered on the record is both of no effect and doesnot bind the legal representative.
The circumstances that the widow had applied for letters of administra-tion in respect of the estate of the deceased and that the order nisi madeunder section 531 had been made absolute under section 534 did notmake her the administrator, as under section 52 of the Estate DutyOrdinance, the Court is forbidden to grant letters of administration untilthe Commissioner has issued a certificate that the estate duty for thepayment of which the administrator is liable under the Ordinance hasbeen paid or secured or that the administrator is not liable to pay estateduty under the Ordinance, and that certificate has been filed in court.
It would appear by implication from section 540 that the power ofadministration is not conferred on the administrator and cannot beexercised by him until it is convejred by the issue of a grant of adminis-tration. In the instant case no such power had been conferred on thewidow at the material time. I
I also uphold the submission of learned counsel that the step prescribedin section 226 (1) is a condition precedent to the seizure and sale of thejudgment-debtor’s property. The words of the section are imperative.This is not a context in which it is permissible to read the word “ shall ”as if it has the force of “ may ”. The Fiscal is in law bound to takethe step prescribed in sub-section* (1). It is only after taking that step
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BASNAYAKJE, C.J.—Sarlin v. James Fernando
that he is empowered to proceed to sell. This is forcefully broughtout by the words “ If by reason of the debtor’s absence no demand forthe payment is made or, in the event if any such demand, when madenot being complied with, the Fiscal shall forthwith proceed to seizeand sell The proviso to sub-section (2) reinforces the view I haveexpressed above, for, it declares that when the debtor is out of theIsland it shall not be necessary to require him to pay the amount of thewrit before the execution is carried into effect. The words of the provisoclearly indicate that the legislature intended that the observance of therequirement of sub-section (1) should be a condition precedent to thesale. In the instant case the demand was not made from any personwhatsoever ; but even if it had been made from the appellant it wouldnot have amounted to a compliance with section 226 (1) as she was notthe person whose name the court had power in law to enter on the recordin place of the deceased.
Learned counsel for the respondent relied on the case of Wijeyeivardeneet al. v. Podisingho et al.1, which is a decision of a Bench of five Judges.But that case is only an authority for the proposition that it is not opento any person to seek to attack in a separate action a seizure and sale ofproperty by the Fiscal on the ground that no demand was made by himunder section 226 (1). In the instant case the seizure and sale is attackedin the very action in which execution has been levied and by a personwho has been expressly made a party to the proceedings for execution.Section 226 (1) is a provision meant for the protection of the judgment-debtor. . It is legitimate for him to complain when the Fiscal ignoressection 226 (1) that he has been denied the benefit of a provision of theCode designed for the protection of judgment-debtors and challenge thelegality of the course adopted by the Fiscal. But if the judgment-debtor does not choose to challenge the legality of the Fiscal’s actionin the case in which execution is levied, Wijeyewardene’s case is a barto its being questioned in separate proceedings. In the instant casethe sale is challenged by the person whom the Court substituted in placeof the deceased judgment-debtor. Even though the action of the Courtin substituting her is not warranted bjr the Code she having been placedin the room of the judgment-debtor is entitled to take any objectionopen to him.
For the above reasons the appeal is allowed and all proceedings afterthe death of the defendant are quashed and the sale is set aside. Theappellant is entitled to the costs of this appeal.
Pulle, J.—I agree.
Appeal allowed.
1 (1939) 40 N. L. R. 217.