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SOYSA v. ALWIS et al.
D. C.t Colombo, M 5.
Civil Procedure Code, s. 642—Application of mortgagee to have deceated mort-gagor’t estate represented—Estate under Rs. 1,000—Death of mortgagorbefore Code came into operation.
Under the proviso of section 642 of the Civil Procedure Code, it iscompetent for the District Court, upon an application made in respectof a mortgage of less value than Rs. 1,000, to appoint a person torepresent the deceased mortgagor’s estate for the purposes of the actionintended to be raised for the recovery of the mortgage debt.
The proviso stands independently of the testamentary chapters of theCode, and applies to cases where the deceased had died before as wellas after the Code came into operation.
npHE executrix of one Jeronis Pieris, to whom one R. D. Thomashad mortgaged some lands in order to secure a loan of Rs. 500and interest, moved the District Court that the widow of thedeceased mortgagor be appointed to represent his estate so asto enable her, the executrix, to sue upon the bond.
The Acting District Judge (Mr. Templer) disallowed themotion, as the mortgagor appeared to have died before the Codecame into operation.
On appeal, Baiva appeared for the executrix.
10th September, 1895. Withers, J.—
I think the present case is distinguishable from the case citedbefore the learned District Judge and relied on by him, viz.,Nagappeti v. Maimanchy, 9 S. C. C. 197. That case, whichconcerned a mortgaged estate worth over Rs. 1,000, decided thatthe mortgagee himself could not be appointed administrator ofhis mortgagor’s estate and effects under section 642 of the CivilProcedure Code, and confirmed a previous ruling that theadministration clauses of the Code apply only when the intestateshall have died after the passing of the Code.
Section 642 relates to two different states of things. If themortgaged property of a person dying intestate amounts to Rs. 1,000,the mortgagee cannot bring a hypothecary aotion unless he has
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1895. procured the appointment of an administrator to the estate andBbowhb, j. effects of the deceased mortgagor under the provisions of chapterXXXVIII. of the Code. The administration may be a general or alimited one, as under the provisions of section 539. If the mort-gaged property is under the value of Rs. 1,000, the mortgagee whodesires to enforce his hypothec may apply to the Court to appointsome person to represent the estate of the deceased for all thepurposes of the action.
In the first case the mortgagee is compelled to apply under theprovisions of chapter XXXVIII., which, on account of the expresslanguage contained in it, was held not to apply to estates wherethe deceased had died previous to the Code coming into operation.See Muttupillai v. Sellamma, 9 S. G. C. 179. But in this case ^the procedure is given under the chapter without reference tothe testamentary chapters, and may be considered apart by itself.It is not apparent that any right is affected by this procedure, andthere is no indication that it will not apply to cases where thedeceased had died before the Code came into operation. Indeed,this chapter is intended to apply to cases where the mortgagor isdead (see section 641). I think we ought to give effect to the newprocedure, wherever it is possible to do so, for I should havethought the object of a Procedure Code—unless otherwiseexpressed—was to deal with past as well as present procedure.
For these reasons I hold it competent for the Judge, if itappears to him necessary or desirable, to appoint a person torepresent the deceased’s mortgagor’s estate for the purposes ofthis action. This is a matter for his judicial discretion. Of coursehe cannot do so if there is an executor or administrator alreadyappointed, or if the property mortgaged is not less than Rs. 1,000.
The decision in 9 S. C. G. 197 was upon an application madeunder the first part of section 642, and is applicable thereto only,and not to the proviso thereof under which the present applicationis made for the enforcement of a bond secured by a mortgage ofless than Rs. 1,000 in value. I am glad there is no obstacle byprecedent to the new procedure whereby the old proceedings insuch a necessity against all the heirs may be abrogated by thesimpler expedient here made, and that we can follow theprecedent of the decision of Lawrie, J. (1,422, C. R., Kalutara,S. C. M., 14th May, 1895), who upheld (though not after argumentof this point) the right of a Court of Requests to appoint arepresentative to the estate of the mortgagors who had diedthirteen years previously.
SOYSA v. ALWIS et al