063-NLR-NLR-V-27-SHARIEFF-et-al.-v.-MARIKKAR-et-al.pdf
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Present: Garvin and-Lyall-Grant JJ.
SHARIEFF et al. MAKIKKAR et oi.
225—D. 0. Kalutara, 9,060.
Prescription—Action on mortgage bond—Death of defendants—Order ofabatement—subsequent reversal—Date of commencement of action.
An action which has abated and which has been restored undersection 403 of the Civil Procedure Code must be regarded as havingcommenced at the da te of its original institution, for the purpose ofa plea of prescription.
A
PPEAL from a judgment of the District Judge of Kalutara.
The action was on a claim based upon a mortgage bonddated March 31, 1913.' After the defendants had filed answer, andbefore the trial, the first defendant died. While his estate was beingadministered the second defendant also died. On March 6, 1923,the Court entered an order of abatement. On July 14, 1923, on theapplication of the plaintiffs the order of abatement was set aside andthe plaintiffs were allowed to proceed with the action. At thetrial the substituted-defendants pleaded that the action wasprescribed, their contention being that the action must be deemedto have commenced on the date when the order of abatement wasset aside. The District Judge overruled the contention, and gavejudgment for the plaintiffs.
Drieberg, K.C. (with, him Cooray), for substituted-defendants,appellant.
De Zoysa for plaintiffs, respondent.
April 1, 1926, Garvin J.—
The question raised by this appeal is whether for the purposes ofa plea of prescription, an action should be regarded as having com-menced at the date of its original institution or at the date of anorder setting- aside an order of abatement made in the course of theproceedings. The action which was a claim based upon a mortgagebond dated March 31, 1913, was instituted on August 30, 1919.The claim was for principal and interest, and it was alleged that nointerest had been paid since the execution of the bond. Summonseswere served and the defendants filed answer. Before the trial thefirst defendant died, and .while steps were being taken to administerhis estate, the second defendant died. On March 6, 1923, no stepshaving been taken in the action for more than a year, the Court acting
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ex mero motu entered an order of abatement. This order wasentered after notice had been given in the manner customary, in thisCourt. The practice, as stated by the District Judge in his judgmentwas to affix to the notice board of the Court an intimation thatan order of abatement would be entered after the expiry of onemonth, unless good and sufficient cause was shown to the contrary.On July 4, on the application of the plaintiffs the order of abatementwas set aside, “ and plaintiffs allowed to proceed with the action.”By this date administration had been taken out to the estate of thetwo defendants and theiT respective administrators were dulysubstituted on the record. At the trial these substituted-defendantspleaded that ten years having elapsed since the execution of the bond. and no interest having been paid thereon, the claim was prescribed.The foundation of the contention is that the action must be deemedto have commenced on the date when the order of abatement wasset aside. The argument would seem to be that it is in the nature of apermission to institute a fresh action on the same cause of action.This interpretation seems to me to be in the very teeth of section403, which is as follows :—
t
“ When an action abates or is dismissed under this Chapter,no 'fresh action shall be brought on the same cause ofaction. .
“ But the plaintiff or the person claiming to be the legal represent-ative of a deceased or insolvent* plaintiff may, withinsuch period of time as may seem to the Court under thecircumstances of the case to be reasonable, apply for an orderto set aside the order for abatement or dismissal; and ifit be proved that he was prevented by any sufficientcause from continuing the action, the Court shall set asidethe abatement or dismissal, upon such terms, as to costs orotherwise, as it thinks fit.”
The true meaning of the section is that no fresh action may bebrought, when an order of abatement has been entered, but that theplaintiff may apply to the Court to set aside the order made in theoriginal action. The effect of setting aside such an order mustsurely be the sa'me as in any other case in which an order is set.aside, and that is, to restore the parties to the position which theyoccupied before the order, which was set aside, was made. The orderof abatement and the order setting aside the order of abatement areboth orders made in one and the same action. When the former iscancelled by the latter the only obstacle to the continuance of theaction, has been removed and the action proceeds. It is not afresh action instituted as at the date of the order of abatement,but is the continuation of the action originally instituted. Therights of the parties to an action must be determined as at the dateof -the institution of that action. In the absence of the clearest
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Gabvin J.
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and sought to explain the dictum as one which had speoial referenceto the special circumstances of the particular case. The onlyother oase referred to in the course of argument was the case ofCooray v. Perera.* But the decision in that case has no realbearing upon the point with whioh we are here concerned. Itdecided that a conveyance made in the period which intervenedbetween the making of an order of abatement and the ordersetting aside that order is not a transfer, which is affected by therule of lie pendens. The judgments of Wood Benton C.J. andDe Sampayo J., from which Pereira J. dissented, proceeded uponthe view that the period which elapsed between the two orders isa dead period during whioh there is no Us pendens which is effectiveto bar the acquisition of rights by third parties. But the judgesnowhere stated that as between thfe parties to the action this revivalof the oase had the oharaoter of a fresh aotion or that their rights areto be determined as at the date of the revival. Indeed,there are indi-cations at least in the judgment of De Sampayo J, that he did notintend such a construction to be placed upon his judgment. Hesaid “ but, whatever the effect of an order of abatement and thesubsequent cancellation of the order made under our law be asbetween the parties to the action, the real question is whether athird party who purchases bona fide during the interval is affectedby the result of the revived action.” But, whether this intervalbe regarded as a period during which the action is dead or is onlyin a state of suspended animation, it appears to be clear that theeffect of the cancellation of the order of abatement is to revivethe original aotion and to permit the plaintiffs to proseoute it to aconclusion, as though the original order of abatement had neverbeen made. The foundation of an order of abatement is that theplaintiff has not been diligent in proseouting his action. Thecancellation of the order proceeds upon the assumption that he wasnot wanting in diligence and that he was prevented from prosecuting
1 3 r. L. Rep. M.* (1902) 6 N. L. R. 338.
8 {1914) It N. L. R. 460.
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possible authority to the oontrary, that rule must apply to the caseof an action whioh has abated, and has been revived by an orderunder seotion 403. Counsel for the appellants relied on the case ofMurugupiUai v. MuUelingam,1 where Lawrie A.C.J. expressedthe opinion that in that case the aotion dated from the date onwhioh the order of abatement was removed, but it is not a satis-factory case. The point does not appear to have been fullyconsidered and it was not necessary to do so for the determinationof the oase, as the Judge held, that the claim was barred by limitationbefore the aotion was first instituted. Moreover in the case ofCave & Co. v. Erskine* Grenier A.J. dissented from the proposi-tion that the action for the purpose of a plea of prescription must bedeemed to date from the date on which the abatement was removed,
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the action by good and sufficient cause. It is difficult to see whythe plaintiff, whose action was ordered to abate, because it wasassumed that he was wanting in diligence, and who has subsequentlyshown that the assumption that he was wanting in diligenceis mistaken, should be penalized further for want of diligence, ofwhich he was not guilty.
For these reasons, I affirm the judgment of the Court below, anddismiss this appeal, with costs.
Lyall-Grant J.—I agree.
Appeal dismissed.