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SILVA v. DINEKEHAMY.
Z). (3., Galle, 3,286.
Civil Procedure Code, $. 247—Plaint presented within time, but rejectedIrregularity of accepting fresh plaint as amended plaint, though outof time.
No action solely and exclusively under section 247 of the CivilProcedure Code can be maintained if instituted more than fourteen daysafter the date of the order upholding the claim to the property seized inexecution.
If a plaint is rejected, and is not put on the file of the Court, it cannotbe said to constitute the institution of an action.
rf^HIS action, which purported in the body of the plaint to beraised under section 247 of the Civil Procedure Code,prayed as follows :—“ Wherefore the plaintiff, claiming the“ benefits of the 3rd clause of Ordinance 22 of 1871, prays that hie“ judgment-debtors be declared entitled to the said premises, and“ that the said property be declared executable under.the said writ."
It appeared that the order of Court releasing the property andallowing the defendant’s claim was made on the 28th September,
The plaint was presented on the 10th October following,which was within the period of fourteen days allowed by thesectiop. The District Judge rejected the plaint on the 12thOctober, “ because it was not clearly written, and the value of the“ property was in the wrong place.” A new plaint dated 10thOctober was presented on the 19th October, and was accepted onthe 22nd October, the Court holding that its “ order of rejection“ must be taken as an order for amendment, and the new plaintH must be treated as amended and as presented on the 10th.”
The Proctor for defendant, ere filing answer, moved that theaction be dismissed with costs, on the ground that it was institutedtoo late. The District Judge disallowed the motion.
The defendant appealed.
Blaei appeared for appellant, and contended that the Courtbelow Bhould have dismissed the action.
Dornhorst, contra. An amended plaint is a substitution of theoriginal one (2 C. L. R. 187). The present order is not appealable,on the ground that there is sufficient material on the record tomake the action in the alternative an actio hypothecaria. If so,it is not touched by the Code.
Blaze, in reply. By section 46 of the Code the time must belimited for amendment. But in this case the Court fired no time.So, the order must be taken as directing the plaint to be amendedthen and there.
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21st March, 1895. Withers, J.—
We think it proper to affirm this order, refusing to dismiss theaction on a motion made by the Proctor for the defendant on thedate appointed for his client to appear and answer to the summonsissued on the accepted plaint.
It has been argued before us that this plaint is not one exclusivelywithin the provisions of the section 247 of the Civil ProcedureCode, but contains an alternative claim, one being independentof those provisions. But this point was not taken before the Courtbelow, and we come to the conclusion that the defendants shouldanswer this plaint in such a way as they may be advised. Whatwe do now decide is, that if this is an action solely and exclusivelyunder section 247, it cannot be maintained, inasmuch as the actionhas been instituted more than fourteen days after the date of theorder upholding the defendant’s claim on the property seized inexecution.
A plaint was submitted to the Judge within the requisite time,but the Judge rejected the plaint for the reasons which he hasrecorded on the record at page 24. Not till the 22nd October, 1894,and therefore long after the prescribed time, was the presentplaint submitted and accepted.
If a plaint is rejected and is not put on the file of the Court, itcannot be said to constitute the institution of an action.
It is because of the way the Judge intended to deal' with therejected plaint and of the concluding paragraph of section 46 ofthe Civil Procedure Code, which says that the rejection of a plaintshall not of its own force preclude the plaintiff from presenting afresh plaint in respect of the same cause of action, that we allowthis judgment to stand with the limitation mentioned before.
We cannot allow a fresh plaint in respect of an action undersection 247, but only in respect of an action that lies outside thatsection.
Costs to abide the event.
I agree. This is an action under section 247, which cannot beentertained, as the plaint was presented too late. In agreeing tosend the case back for further proceedings, I express no opinionwhether the plaint contains any other cause of action. That is amatter not yet dealt with by the District Court, and will be dealtwith on the defendant’s answer.
SILVA v. DINEKEHAMY