SIMON AND ANOTHER vs. GUNATILAKE AND ANOTHER

032-SLLR-SLLR-2005-V-1-SIMON-AND-ANOTHER-vs.-GUNATILAKE-AND-ANOTHER.pdf


CA
. Simon and another vs
Gunatilake and another (Wimatachandr'a, J.)
249
SIMON AND ANOTHERVS
GUNATILAKE AND ANOTHER
COURT OF APPEALWIMALACHANDRA, J„
A. 193/2004
C. EMBILIPITIYA No. 1743/LJULY 5, 2004
Civil Procedure Code – Writ of execution – Defendant dead – Who can besubstituted ? – Who is a legal representative – Execution and substitutiontogether
The plaintiff-respondent filed action for the ejectment of the 1st respondent.Judgment was entered in favour of the plaintiffs. The 1st defendant appealedagainst the judgment. The plaintiff sought writ pending appeal. When the inquiryinto the said application was pending, the 1 st defendant died. The respondentssought to substitute the petitioners in place of the deceased, which was allowedby court.
On leave being sought –
Held
The application for substitution was opposed on the ground that they are
not the children of the deceased 1st defendant.
If the judgment debtor dies before the execution of decree, section 341of the Code provides that the decree holder can apply to court by petitionin which the legal representative of the deceased must be maderespondent to execute the decree against such legal representative.
Admittedly the 1st'and 3rd substituted defendants petitioners are inpossession of the property possessed by the deceased judgmentdebtor.
They come within the meaning of section 341(1) as the legalrepresentative of the deceased 1st defendant. Legal'representativeincludes any person intermeddling with the estate of the deceased.
A stranger in possession of a deceased judgment debtor’s property butwho claims no title from him may be proceeded against… in executionas legal representative.
APPLICATION for leave to appeal.
250
Sri Lanka La.v Reports
(2005) 1 Sri L. R.
Cases referred to :
Tyagarajah vs Perera – (1983) 1 SRILR, 384 at 390
Baliram vs Mudiada – A 1951 N 145
Nesaratnam vs Vaithilingam – 78 NLR 457
Anuruddha Dharmaratne for (Sub) 1st and 3rd defendant respondentspetitioners
Palitha Kumarasinghe .for plaintiff petitioner – respondent respondent
Cur.adv.vult
October 01, 2004
K. WIMALACHANDRA, J.:The substituted 1st and 3rd defendants-respondents-petitioners(hereinafter referred to as the petitioners) filed this leave to appeal applicationagainst the order of the learned District Judge of Embilipitiya dated20.05.2004.
The facts, as set out in the petition are briefly as follows :
The plaintiffs-petitioners-respondents (hereinafter referred to as therespondents) filed the action No. 1743/L for the ejectment of the 1stdefendant (now deceased) from the land described in the schedule to theplaint. After the conclusion of the trial the judgment was entered on21.09.2000 in favour of the plaintiffs, granting relief as prayed for in theamended plaint. The 1 st defendant appealed against the judgment. Thepetitioners thereafter made an application for a writ of execution of thedecree pending appeal. While the inquiry into the application fora writ ofexecution was pending appeal, the 1st defendant died. The respondentsfiled an application by way of petition and affidavit for the substitution ofthe petitioners in place of the deceased 1st defendant on 08.12.2003.
The application for substitution was opposed by the petitioners, on theground that they are not the children of the deceased 1 st defendant. Afteran inquiry the learned District Judge made order on 20.05.2004 substitutingthe petitioners as the substituted defendants in place of the deceased 1 stdefendant. It is against this order that the petitioners have filed thisapplication for leave to appeal.
If the judgment-debtor dies before the execution of decree, section 341of the Civil Procedure Code provides that the decree-holder can apply tothe Court by petition, in which the legal representative of the deceased
CA.
Simon and another vs
Gunatilake and another (Wimalachandra, J.)
251
must be made respondent, to execute the decree against such legalrepresentative.
In the case of Tyagarajah vs. Perera(1), Soza, J. held as follows :
“When the judgment-debtor dies before execution of the decree thecorrect procedure then is for the decree-holder to file a petition namingas respondent the legal representative of the deceased judgment-debtorand praying for execution to issue against such representative. In thepetition, itself the decree-holder should ask for substitution as incidentalto the application for execution and, if satisfied with the reasons, effectthe substitution ex parte".
Soza,-J. observed that the execution and substitution should be askedfor in one petition. Substitution will be ex-parte and notice will issue. Thenotice should be to show cause against the application for execution andnot against the application for substitution. In showing cause against theapplication for execution, one of the defences open to the party noticedcould be that he has been wrongly substituted as legal representative.
It is to be noted that the petitioners have not filed a copy of the applicationmade by the judgment-creditor-for execution of the writ against thesubstituted defendants in place of the deceased 1 st defendant-judgrrient-debtor: In any event it appears that the respondent’s application wasobjected to by the petitioners, on the ground that they are not the childrenof the deceased 1st defendant, by filing objections to the respondent'sapplication.
After an inquiry the learned District Judge delivered the order on
and held that the petitioners are the legal representatives ofthe deceased 1st defendant and made order to substitute them as thesubstituted defendants in place of the deceased 1 st defendant.
In his order the learned Judge has referred to the evidence given by thedeceased 1st defendant at the inquiry held in respect of the originalapplication for a writ of execution pending appeal. At the inquiry the 1 stdefendant (now deceased) said that the petitioners (1 st to 3rd substituteddefendants) were his children and living in houses built by them in thesame premises (vide page 2 of the proceedings dated 29.01.2003 marked‘P9’). Moreover, the deceased 1 st defendant also filed an affidavit markedP8(b), wherein he stated that the substituted defendants were his childrenand they were living in the same premises in three different houses builtby them. The learned Judge has specifically observed, that at the aforesaid
Sri Lanka Law Reports
(2005) 1 Sri L. R.
•>S2
inquiry Mrs. S. Pathirana who was the registered attorney of the 1st■ defendant (deceased) appeared for the 1 st defendant. It was Mrs. Pathiranaalong with counsel Mr. Farook who led the evidence of the 1 st defendant.
Thereafter when the case was called on 30.01.2003 in respect of thesubstitution of a legal representative in place of the deceased 1st defendant,the very same attorney-at-law, Mrs. S. Pathirana appeared for the 1 st – 3rdsubstituted defendants and informed Court that they were not the childrenof the deceased 1st defendant. Mrs. S. Pathirana also filed objections onbehalf of the petitioners (1 st to 3rd substituted defendants) to the applicationmade by the respondents for execution of the writ and substitution of thepetitioners in place of the deceased 1 st defendant on the basis that theywere not the children of the deceased 1 st defendant.
It appears that their main ground of objection to the substitution of thepetitioners in place of the deceased 1 st defendant is that they are not thechildren of the deceased 1 st defendant, and hence they cannot be treatedas the legal representatives of the deceased. If it is so, the best evidenceto prove that fact would have been the production of their birth certificates,which they failed to produce at the inquiry. Accordingly, the logicalconclusion that could be arrived at is that, had they produced their birthcertificates it would have been adverse to them.
Admittedly, the petitioners (1st to 3rd substituted defendants) are inpossession of the property possessed by the deceased judgment-debtor,but claim no title from him.
Our section 341 (1) corresponds to section 50 of the Indian Code of1908.1 shall now quote section 341 of our Code and its counterpart in theIndian Code of 1908.
Section 341 (1) of the Civil Procedure Code :
“If the judgment-debtor dies before the decree has been fully executed,the holder of the decree may apply to the court which passed it, bypetition, to which the legal representative of the deceased shall bemade respondent, to execute the same against the legal representativeof the deceased.”
Section 50 (1) of the Indian Code of 1908 :
“Where a judgment-debtor dies before the decree has been fullysatisfied, the holder of the decree may apply to the Court which passedit to execute the same against the legal representative of the deceased.”
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Simon and another vs
Gunatilake and another (Wimalachandra, J.)
253
Sarkar’s Law of Civil Procedure, 8th edition, Volume 1, at page 220 hasmade the following observation on the Indian section 50 (1) which is identicalto ours :
"A stranger in possession of deceased judgement-debtor’s propertybut who claims no title from him may be proceeded against in executionas legal representative under section 50 [Baliram Vs. Mukiada<2)]".
The property possessed by the judgement-debtor is now in the hands. of the petitioner (1 st to 3rd substituted defendants). It seems to me, thatthey come within the meaning of section 341 (1), as the legal representativesof the deceased 1 st defendant. The legal representative includes any personwho intermeddles with the estate of the deceased.
In the case of Nesaratnam vs. Vaithilingam<3> in a majority judgement,Pathirana, J. held that an executor de son tort is a legal representative ofthe deceased within the meaning of section 341 (1) of the Civil ProcedureCode.
Pathirana, J. observed at page 468 ;
“The trend seems to favour an extended meaning to be given to theterm executor or administrator as to include an executor de son tort.Both reason and logic seem to favour this view, particularly in interpretingsection 341 of the Civil Procedure Code. If for example, a debtor owesmoney to another and the debtor dies, it is settled law that the creditorcan proceed against a person who intermeddles with the estate of thedeceased [1901] 4 NLR at page 353".
For these reasons, I see no reason to interfere with the order made bythe learned District Judge dated 20.05.2004.1 would therefore affirm theorder of the learned judge and dismiss the application for leave to appealwith costs fixed at Rs. 2,500
Application dismissed.