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Present: Tile Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Middleton.
SINNIAH CHETTY t>. KUAIAItAPPA CHETTY.
Ex parte E. C. Jobsz, Appellant.
D.C., Kurunegala, 3,009.
■Civil Procedure Code, s. 339—Judgment—Assignment—Death of one ofseveral plaintiffs before application—" Representative ”—“ Legalrepresentative ”—Respondents—Attorney.
Where several plaintiffs, through an attorney, sued the defendanton a mortgage bond, and having obtained judgment assigned thesame to a third party, who applied to be substituted as plaintiff onthe record under section 339 of the Civil Procedure Code, and whereat the date of such application one of the plaintiffs was dead.—
Held, that the legal representative of such deceased plaintiff neednot be made respondent to the petition under section 339 of thcCivil Procedure Code, and that the applicant – was entitled to .besubstituted as plaintiff on the record.
Hutchinsok C.J.—The word “ representative ” in section 339seems to have a wider meaning than the words “ legal representa-tive.”
Where the cause of action survives to the surviving plaintiffalone, he is the representative of the deceased plaintiff for thepurposes of the action.
HE plaintiffs sued by their attorney and obtained judgment
on November 2. 1906. on a mortgage bond for a sumof Bs. 16,325,25, and interest and costs, and 'assigned the saidjudgment- by deed No. 1,108, dated June 1, 1907, to the petitioner,who on June 17, 1907. applied, in terms of section 339 of the CivilProcedure Code, to be substituted as a plaintiff on the record.
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1S0H. One of the plaintiffs died in India on June 9, 1907, and it wasft. contended that his legal representative must be made respondentto the petition under section 339.
The District Judge (B. Hill, Esq.) over-ruled the objection.
Ta mhayah, for the appellant-.
Sampayo, K.G., for the respondent.
March 6, 1908. Hutchinson C.J.,—
The plaintiffs obtained in this action a decree for money due bythe defendant on a mortgage bond. They then assigned the benefitof the decree to Sinniah Chetty, who shortly afterwards applied tothe Court, by petition under section 339 of the Civil Procedure Code,to be substituted as plaintiff. But ten days before th.e date of the-petition one of the plaintiffs had died in India; the survivingplaintiffs only, and not the legal representatives of the deceasedplaintiff, were made respondents to the petition; and the defendantobjected that the latter also must be made respondents. The DistrictJudge over-ruled the objection, and made the order for which thepetitioner asked. The plaintiffs had sued by an attorney; thepetitioner had made the attorney a respondent, and the DistrictJudge held that that was enough. This is an appeal against hisorder.
The reason given by the District Judge is not. a good one, becausethe death of the plaintiff revoked the authority given by him to hisattorney. But the order may perhaps be supported on anotherground. Section 339 requires “ all the parties to the action or theirrepresentatives ” to be made respondents. The section immediatelybefore speaks of “ legal representatives,” and gives a definition ofthe term for ” the purposes of this chapter,” and sections 341 and344 also speak of ” legal representatives;” so that it looks as though” representatives ” in section 339 was intended to be fr wider termthan ” legal representatives.”
I think that where the cause of action survives to the survivingplaintiff alone, he is the representative of the deceased plaintiff forthe purposes of the action; the legal representatives of the deceasedneed not be made respondents to an application under section 393that the action proceed at the instance of-the survivor; and theyneed not be made respondents to an application such as this. Iwould therefore dismiss the appeal with costs.
Middleton J.—I agree.