Sirisena v. Mohottiappuhamy.
Present: Wijeyewardene J.
SIRISENA. v. MOHOTTIAPPUHAMY.
179—C. R. Kegalla, 14,409.
Obligation in solidum—Payment of taxed costs by one of two parties—Actionfor contribution.
Where the appellant and the respondent were substituted in an actionas heirs of a deceased plaintiff and where subsequently they moved towithdraw the action, which was dismissed with costs as against them,—Held, that the appellant who paid the entire sum, on a writ againstthem for taxed costs, was entitled to recover a half share from therespondent.
1 4 C. A. C. 87.2 25 tf. L. R. 433.
WIJEYEWARDENE J.—Sirisena v. Mohottiappuhamy.
Cyril E. S. Perera, for plaintiff, appellant.
C. S. Barr-Kumarakulasingham, for defendant, respondent.l PPEAL from a judgment of the Commissioner of Requests, Kegalla.
November 27, 1942. Wijeyewabdene J.—
One Sediris Appuhamy filed D. C. Kegalla 591 for declaration of titleto a land. On the ground that Sediris Appuhamy failed to take anystep to prosecute the action for one year, the District Judge made anorder ex mero motu abating the action. The proctor for the defendantin that case applied to Court shortly afterwards that an order be madedismissing the action with costs and the Court ordered notice of theapplication to be given to Sediris Appuhamy. It was then discoveredthat Sediris Appuhamy was dead. Thereupon, the defendant’s proctormoved for notice on the present appellant and respondent, the sons andheirs of Sediris Appuhamy, to show cause why they should not besubstituted as plaintiffs in place of Sediris Appuhamy and why the Courtshould not make an order . dismissing the action with costs. Theappellant and the respondent consented to be substituted as plaintiffsand took steps to get the order of abatement set aside. The parties,thereupon, came to an agreement. In pursuance of that agreement,the appellant, acting on behalf of himself' and the respondent, paid thedefendant in that action Rs. 25 as costs incurred by him in certainincidental proceedings, and the order of abatement was vacated and thecase restored to the roll of pending cases. Sometime afterwards thesubstituted plaintiffs moved to withdraw the action and the DistrictJudge entered a consent decree dismissing the action with costs. , Thedefendant in that action took out a writ for the recovery of this taxedcosts and the appellant paid Rs. 275.44 in full satisfaction of the writ.
The present action was then filed by the appellant to recover from therespondent a half share of Rs. 25 and Rs. 275.44 paid by him as costs inD. C. Kegalla 591. The respondent filed answer denying his liability.The Commissioner of Requests held that the appellant was entitled to ahalf share of Rs. 25 as the appellant and the respondent were personallyliable on their agreement to pay that sum to the defendant in D. C.Kegalla, 591. He rejected the appellant’s claim for a half share ofRs. 275.44, as he thought that neither the appellant nor the respondentwas personally liable to pay the taxed costs in D. C. Kegalla, 591, andthat, the decree could have been executed only against the estate ofSediris Appuhamy. He held, therefore, that the appellant’s payment ofRs. 275.44 was not in discharge of any legal liability incurred by therespondent.
The facts stated by me show that the appellant and the respondentagreed to be substituted as plaintiffs in D. C. Kegalla, 591, and that,until they decided to withdraw the action, they ratified and adopted theposition taken up by Sediris Appuhamy. Therefore, they would havebecome personally liable for costs as the parties on the record, Nonohamy■v., Babun Appu Even an executor or administrator who brings anaction is personally liable to pay the costs of the successful defendant
Cur. adv. vuIt.
114 X. I.. R. 462.
158DE KRETSER J.—Marikar and Mirihana Police.
unless the Court orders otherwise, and, in the absence of such an order;the estate of the deceased person cannot be seized and sold in executionof the decree for costs, Usoof Joonoos v. Abdul Kudoos Now the decreeentered in D. C. Kegalla, 591, contains no order by the Court that the costsshould be paid by the estate of Sediris Appuhamy and therefore underthat decree the appellant and the respondent were personally liable topay the costs. That liability was an obligation in solidum, Peria CaruppenChetty v. MohamaduThe appellant who paid the entire sum is, there-fore, entitled to recover ahalf share from the respondent (Van der Linden
I set aside the . decree appealed against and direct decree to be enteredin favour of the appellant for Rs. 150.22 with legal interest from the date-of this action and for costs here and in the lower Court.