TYAGARAJAH AND ANOTHER VS. PERERA AND THEREE OTHERS

008-SLLR-SLLR-1983-1-TYAGARAJAH-AND-ANOTHER-VS.-PERERA-AND-THEREE-OTHERS.pdf


384
P-
Sri Lanka Law Reports
[1983]! Sri LR,
TYAGARAJAH AND ANOTHERVS.
PERERA AND THREE OTHERS
SUPREME COURT.
SHARVANANDA, J. , COLIN-THOME, J.AND SOZA, J,.
S.C.NO. 40/82-S.C.SPECIAL
A. NO. 57/82-C.A. APPLICATION NO. 488/82.FEBRUARY 2, 1983.
Execution of decrees against the estate of a deceased-judgment debtor – Sections 341, 347 and 763 of theCivil Procedure Code – Application for a writ of executionand substitution – Writ issued without notice – Resistanceby the respondents.
The plaintiffs (Appellants to this appeal) who werethe owners of the premises No. 7, St. Albans Place,Colombo 4, instituted action against the defendantone Shyama de Silva to have her ejected from thesaid premises. On 28-11-79 the District Judge madean order ex parte in favour of the plaintiffs. Acopy of the decree was served on the defendant on6-2-80. She died on 18-2- 80.
An application was filed on 21-7-80 for_a writ ofexecution, of the decree and to substitute the 1strespondent as the legal representative of thedeceased defendant. The Court ordered the substi-tution and directed notice of application for writto be issued.
.sc
•Tyagarajah v. Perera
385-
However the Court on 6-8-80 issued, writ withoutservice of notice. When the writ of possession wasexecute^ on 19-9-80, the Fiscal was resisted by the2nd, 3rd and 4th respondents.
On 6-4-82 the District Judge directed the re-issueof the writ and also held that the 2nd respondentwas none other than the substituted legal repre-sentative of the deceased judgment debtor (1strespondent to the appeal). The 2nd respondent filedan application in revision, in the Court of Appealto set aside the said order.
The Court of Appeal set aside the orders of6-8-80 and 6-4-82, directed the issue of the writand held that the 1st and 2pd respondents are one
and the same person.
The appellants in this appeal raised thefollowing questions regarding the procedure thatshould ;be adopted in the execution of decreesagainst ithe estate of a deceased, judgment debtor.
where the judgment debtor dies beforeexecution of decree, is notice necessarybefore substitution of his legal represen-tative?
Should the person substituted as legalrepresentative be noticed to show cause before .execution issues?
Is failure to issue notice beforeexecution issues fatal where the legal repre-sentative becomes aware of the application forexecution?
Held
Where the judgment debtor dies beforeexecution of decree, and where a legal repre-sentative should be substituted * for thedeceased judgment debtor, no service of notice
386
Sri Lenka Law Reports
[1983J1 Sri L.R.
on the legal representative is' necessarybefore the substitution. Execution and substi-tution should be asked for in one petition.Substitution will be ex parte and notice willissue.
The person substituted as legal represen-tative should receive the notice of theapplication for execution and also should becalled upon to show cause against the saidapplication. He can then in objecting toexecution bake up as one of his defences theplea that he has been wrongly substituted aslegal representative.
Where the legal representative becomesaware of the application for execution failureto issue notice before execution issues, isnot fatal.
Cases referred to
. (1) Omer v. Fernando (1913) 2 C.A.C. 128, (2) Pathurpillai y. Kandapoen (1913) 3 C.A.C23
Manuel Ferera v. Falaniappa Chetty (1913)1 S.C.D. 16
Siriwardena v. Kitulgalla (1941) 42N.L.R. 510
Latiff v. Seneviratne(1938) 40 N.L.R.141
Sirimala Veda v. Siripala (1954)55
N.L.R. 544
Edward v. de Silva (1945) 46 N.L.R, 342
Ragunath Da:s v. Sundar Das Khetri A.I.R.1914 Privy Council 129. 131.
Nimalasekera v. Parakrama Samudra Co-operative Agricultural Production andSales Society Ltd.. (1955) 58 N.L.R. 298.
Perera v. Novishamy (1927) 29 N.L.R. 242
.387
SC
Fernando v. Thambiraja (1945) 46 N.L.R.81
Rodrigo v. Waerakoon (1957) 61 N.L.R.150
Chandra Nath Bagchi v. Nabadwip ChandraDutt A.I.R. 1931 Calcutta 476.
Fakhrul Islam v. Bh u,banes war i Kuer A.I.R.1929 Patna 79
Kannangara v. Peries (1928) 30 N.L.R. 78
APPEAL from the judgment of the Court of Appeal*K.N. Choks'y Senior Attorney with S. MahenthifanA. Kirupaidasan and Miss. I.R. Rajepakse for'appellants.
H.L. de Silva Senior Attorney with J. Hohamed for2nd respondent.
Other respondents absent and unrepresented.
Cur.adv.vult,
May 10, 1983.
SQZA, 3.
This appeal raises an interesting questionregarding the procedure that should be adopted inthe execution of decrees against the estate of adeceased judgment-debtor. I will set out in briefoutline the salient facts of this case which havegiven rise to this question.
The two plaintiffs who are* the appellantsbefore us'instituted this suit against one Shyamade Silva to vindicate their title to premises No.7,St. Albans Place,'Colombo 4 to have her ejectedtherefrom and to recover damages for wrongfuloccupation and costs. They also asked for an in-junction and on being noticed in regard to thisShyama de Silva the defendant filed proxy andobjections but did not pursue them. She made nofurther appearance in the case and hence ex partetrial was held and judgment entered for the plain-
388Sri Lanka Law Reports[1983J1 Sri LR,
tiffs as prayed for with costs on November 28,1979. A copy of the decree was served on Shyama deSilva on February 6, 1980. On February 18,1980
Shyama de Silva died. No application was made byShyama de Silva or after her death by any repre-sentative of hers to have the decree set aside and.therefore no question as to the validity of thedecree can be entertained now. Nor indeed has anysuch question been raised before us.
On July 21, 1980 the appellants filed anapplication for a writ of execution of the decreeentered in the case naming a Mrs. Malcolm Perera as- respondent and seeking her substitution as legalrepresentative as she had adiated .the inheritance.The Court ordered the substitution and directednotice of the application for writ to issue butlater changed its mind and on August 6, 1980 issuedwrit without service of notice. On September 19,1980 the Fiscal repaired to the premises in suit toexecute the writ of possession. One Mrs. ElizabethFonseka.now the second respondent, Mr.T.M.R. Guna-sekera, the third respondent and attorney-at-lawMr. Daya Wettasinghe resisted the Fiscal and thiswas reported to Court. The appellants then soughtto have themselves put into possession and thesecond, third and fourth respondents dealt with forcontempt of court. The second and third respondentsfiled objections and after a hotly contestedinquiry the District Judge by his order of April 6,1982 held that the second.and third respondents hadresisted the Fiscal on incorrect advice given bythe fourth respondent and let them off with' awarning and directed reissue of the writ. One im-portant finding of the District Judge was that thesecond respondent was none other than Mrs. MalcolmPerera substituted as the legal representative ofthe deceased judgment-debtor and not a non-existentperson as asserted by the second and third respon-dents. On the very day on which the District Judgedelivered his order tha second respondent alone of
-SC.
Tyagarajah v. Perera J (Soza, J.) ■
r
389
1
the respondents filed an application in revision inthe Court of Appeal seeking to have the order* setaside and at the same time moved for and obtainedan order staying execution. After hearing argumentthe Court of Appeal set aside the orders of 6.8.80and 6.4.82 of the District Judge and the directionto issue writ but affirmed the finding that thesecond respondent and Mrs. Malcolm Perera are oneand the same person. In these Circumstances thechallenge to the identity of Mrs. Malcolm Pereramust be regarded as closed.
In this factual background this appealposes three questions:
.. 1.Where the judgment-debtor dies before execu-tion of decree, is notice necessary beforesubstitution of his legal representative?
2. Should the person substituted as legal rep-resentative be noticed to show cause beforeexecution issues?
3.1s failure to issue notice before executionissues fatal where the legal representativebecomes aware of the application for execu-tion?
It is well established that when the judgment-debtor dies before execution of decree thejudgment-creditor must proceed under section 341of the Civil Procedure Code – see the cases of Outervs. Femando(l) Pathurupillai vs. Kandappan(2) ManuelPerera vs.Palaniappa Chetty(3) and Siriwardene vs.Kitugallai4). Section 341 provides that when thejudgment-debtor dies before execution of decree,the decree-holder must apply for execution bypetition to which the legal representative is maderespondent. But neither in section 341 nor in anyother section of the Civil Procedure Code is thereany special procedure laid down for substitution ofthe legal representative. The practice and
Sri Lanka Law Reports
[1983] 1 Sri LR.
390
procedure hitherto being followed is for such sub-stitution to be made ex parte if sufficientmaterial has been placed before the court tojustify the making of such an order see section 4-of the Civil Procedure Code. In the case.of ManuelPerera vs. Palaniappa Chetty(supra) • the judgment-creditor ."moved to substitute the administrator asdefendant,- and writ issued :against-.him." . This washeld to be a sufficient compliance with section 341(P- 17 of the report). The substitution of thglegal representative is merely a step in aid ofexecution. Nowhere in the Civil.. Procedure Code norin the decided cases can support be found for theproposition that the proposed legal representativeshould be noticed to show cause why he should notbe substituted. The Civil Procedure Code does notcontemplate an application for substitution as dis-tinct from an application for execution. All thatis required is that the judgment-creditor file apetition moving for execution in which he names the.legal representative and gives reasons which willsatisfy the court that the person so named shouldbe substituted in the room of the deceasedjudgment-debtor.The qualifications for appointmentas legal representative are laid down in section338(3)' (b) of the Civil Ptocedure Code. He must bethe .executor 6r administrator or -if the estate ofthe deceased *judgment-debtor.is below Rs. 20,000/-a next of kin who has adiatedthe ’ inheritance.Aswill,appear'frpm my discussion of the next questionfor decision ho injustice will take place by obser-vance of the practice to effect the substitution ofthe legal representative ex parte. Execution, itmust be borne in mind, is really against the estateof- the deceased judgment-debtor and the legalrepresentative will be liable only to the extent of the1 property of-the deceased which-has come to hishands and has not been duly disposed* of.
yftien the judgment-debtor dies ' before exe-cution of .the decree the correct procedure then is
■Tyagarajah v Pcrerz (Sofa, J.;
SC.
391
—f
for the decree-holder to file a petition naming asrespondent the legal representative of the deceasedjudgment-debtor and praying for execution to issueagainst such representative. In the petition itselfthe decree-holder should ask for substitution ofthe legal representative giving reasons. The courtwill treat the application far substitution as in-cidental to the application for execution and,if satisfied with the reasons, effect the substi-tution ex parte,
I will now tiun to the second questionwhether the person substituted as legal representa-tive should have notice before execution issues. Atthe outset it is well to remember that in execution
proceedings the statutory procedures are so de-signed as to assist the judgment-creditor torecover the fruits of his judgment and not toafford facilities to the judgment-debtor to defeator delay the execution of the decree of court.Hence the general principle is that notice is notrequired of an application for execution of adecree. The application for execution should con-form to the requirements of section 224 of theCivil Procedure Code (Form 42 of the First Scheduleto the Code), There is a stipulation to mention thenames of the parties but no petition to which anyparty is named respondent is necessary.
Situations however arise from various causeswhen delay is occasioned as when the judgment-debtor dies before execution of decree or when thejudgment-creditor himself is guilty of delay. OurCivil Procedure Code deals with such situations ina special way following the inspiration of theIndian Code. The scheme adopted by our CivilProcedure Code can be more clearly appreciated bycomparing our section 341 and the related section347 with the corresponding sections of the IndianCode of Civil. Procedure, Act No,XIV of 1882 onwhich our -Civil Procedure Code is modelled. As thetext of the Indian provisions is not readilyavailable I will reproduce them for the purposes of
Sri Lanka Law Reports
[1983] 1 Sri LR.
392
comparison. Our section 341 corresponds to section
234 of the Indian Code ofsection 248 :
Section 341 C.P.C
If the judgmentdebtor dies before thedecree has been fullyexecuted, the holderof the decree – mayapply to the courtwhich passed it, bypetition, to which thelegal representativeof the deceased shallbe made respondent, toexecute the sameagainst the legalrepresentative of thedeceased.
Such representa-tive shall be liableonly to the extent ofthe property of thedeceased which has-come to his hands andhas not been dulydisposed of ; and forthe purpose of ascert-aining such liability,the court executingthe decree may on theapplication of thedecree-holder compelthe said representa-tive to produce suchaccounts as it thinksfit.
1882 and section 347 to
Section 234 Indian Codeof 1882
(1) If a judgmentdebtor dies before thedecree has been fullysatisfied, the holderof the decree mayapply to the courtwhich passed it toexecute – the sameagainst the legal re-presentative of thedeceased.
(2)Such legal repre-sentative shall beliable only to theextent of the propertyof the deceased -whichhas come to his handsand has not been dulydisposed of; and forthe purpose of ascert-aining such liability,the court executingthe decree may, of itsown motion or on theapplication of thedecree-holder, compelsuch legal representa-tive to produce suchaccounts as it thinksfir.
Tyagarajah v. Perera (Soza, J.)
393
r SC
(Emphasis mine showing the differences)
Perhaps I should add that the Indian Code of CivilProcedure, Act No. 5 of 1908 now in operation inIndia has in its section 50 adopted the old section234 almost in toto. The only alterations are thefollowing :
The word "Where" has been substituted forthe word "If" at the beginning of stib-section(1).
The words "Where the decree is executedagainst such legal representative, he" havebeen substituted for the words "Such legalrepresentative"at the beginning of sub-section(.2).
I will now quote section 347 of our Code and itscounterpart in the Indian Code of 1882- section
248 :
Section 248 Indian CodeSection 347 C.P.C.of 1882.
In cases where thereis no respondent namedin the petition ofapplication for execu-tion» if more than oneyear has elapsed bet-ween the date of thedecree and the appli-cation for its execu-tion, the court shallcause the petition tobe served on thejudgment-debtor, andshall proceed thereonasf if he were origi-nally named respondenttherein:- Provided thatno such service shall
The Court shall issuea notice to the partyagainst whom executionis applied for; re-quiring him to showcause, within a periodto be fixed by theCourt, why the decreeshould not be executedagainst him –
if more than oneyear has elapsedbetween the date ofthe decree and theapplication for its'execution, or
if the enforcement
. 394 ,Sri Lanka Law Reports.[1983] 1 Sri Lit
I. _<
. be necessary if the.• of the decree be
application bemadeapplied for against
within one year from'the legal r.epresenta-
the date of any decreetive of a party to the
-passed on appeal fromsuit in which the
the decree sought todecree was made:
be executed or from
the date of the lastProvided that no su£h
order againstthenotice shall be neces-
party, againstwhom..sary – in consequence
execution is .appliedof more than one year
for, passed on anyhaving elapsed between
previous applicationthe date of the decree
for execution.and the application
for execution, if theapplication bemade
within one year fromthe date of any decreepassed on appeal fromthe decree sought tobe executed, or if thelast order against theparty againstwhom
execution is appliedf-or, passed on anyprevious applicationfor execution, or inconsequence of theapplication being ag-ainst Jthe legalrepre-sentative ofthe
judgement-debtor, ifupon a previous appli-cation for executionagainst the sameperson the Court hasordered execution toissue againsthim.
Explanation.-In thissection the phrase,
SG■ Tyagarajah v. Perera {Soza, J.). . 395
■ "the Court," means theCourt by which thedecree was passed un- .less the decree hasbeen sent to anotherCourt for ' execution,in which case it meanssuch other Court.
Section 248 appears in the Indian Code of1908 as Order XXI Rule 22(1) with many differencesin transposition and a new sub-rule (2). Theexplanation given in section 248 is dropped. Itshould be observed that in our section 347 there isno provision relating to applications for executionagainst a legal representative of a deceasedjudgment-debtor and even in regard to the provisionfor notice where one year has elapsed after theentry of the decree there is the qualification thatthis is necessary only "in cases where there is norespondent named in the petition of application forexecution". It is only if no respondent is namedand notice is thought necessary by the Legislaturethat a special provision for notice is included.Our Legislature has proceeded on the footing thatby providing for a party to be named respondent itis impliedly providing for notice to such party.The Indian approach is different. For such situ-ations as where a decree is one year old or whereexecution has to be issued against the legalrepresentative of a deceased judgment-debtor spe-cial provision is made for notice. Both systemsachieve the same result. In this connection theobservations of De Kretser J in' the case ofSiriwardene v. Kitugalla (supra) appear veryrelevant:-
I
. "It is only section 341 which deals with, theexecution of decrees after the death of thejudgment-debtor. Section 50 of the present
396,Sri Lanka Law Reports[1983] 1 Sri LR.
I1–4
Indian Code corresponds fairly closely withsection 341 of our Code but there is a vitaldifference in that it does not require thelegal representative to be made a respondentto 'the application. Section 50 replaced asomewhat similar provision of the old Code. Itwas section 248, now replaced by O.XXI R. 22(corresponding somewhat with section 347 ofour Code) which required the Court to givenotice to the legal representative beforeallowing execution to issue. We have takenaway from section 347 the part which relatedto legal representatives and we have addedthat part in substance to section 341."(pp.511, 512).
The section of the old Indian Code which thepresent section 50 replaced was section 234 towhich reference has already been made.
Two other occasions when our Legislaturehas adopted the device of stipulating the naming ofrespondents instead of expressly providing fornotice can be found in section 339 and section 763of the Civil Procedure Code.
Our section 339 deals with applicationsfor execution of a decree by a transferee of ..titleto the decree. This section corresponds to section232 of the Indian Code of 1882( replaced with
minor alterations by Order XXI Rule 16). Under boththe old and new Codes in India – notice to thetransferor and judgment-debtor where the transferis by assignment is expressly stipulated as anessential step prior to the issue of execution. Oursection 339 requires the transferee whether thetransfer is by assignment or operation of law toapply for execution of the decree " by petition, towhich all the parties to the action or theirrepresentatives shall be made respondents." But ifthe transfer is by operation of law the transferorneed not be made a respondent. What is requiredunder this section is that the transferee should
– SC .Tyagarajah v. Perara fSoza, J.)397,
■u—-
file a petition praying for. execution to issue andof course stating the grounds on which he claims tobe a transferee. The parties to the actionincluding the judgment-debtor must be namedrespondents to the petition and the Court afternoticing them and affording them an opportunity toraise their objections if any will allow theapplication or reject it, – see the cases of Latiffvs. Seneviratne(5) and > Sirimala Veda vs. Siripala(6). Fernando A.J. said in the latter casereferring to section 339 "The principal object ofthe section" is "not so much to. permit objectionsto the issue of execution but to permit challengeof the validity of the assignment." (p„ -548).
So far as section 763 of our Civil ProcedureCode goes its counterpart in the Indian Code of1882 (section 546) and in the Code of 1908 (OrderXU Rule 6) is differently formulated and no usefulcomparison can be made. Our section 763 providesthat in the case of an application being made bythe judgment-creditor for execution of a decreewhich is appealed against the judgment-debtor shallbe made respondent. In the case of Edward vs. deSilva,(7) Soertsz A.C.J. interpreted the provisionto mean that the judgment-debtor "shall be broughtbefore the Court or shall be given the opportunityof coming before the Court by being served with anotice calling upon him to show cause, if he hasany cause to show, against the application forexecution." (p.345). Our Courts have repeatedlyheld that the purpose of making a judgment-debtor aparty respondent to an application under section763 is to enable him to show cause against it.
A comparative examination of the provisions ofour Civil Procedure Code on the question ^ ofexecution of decrees can leave no doubt that theprovision in section 341 to make the legalrepresentative a party respondent is there toensure that he receives notice of the applicationfor execution. It should be emphasised that the
398
Sri Lenka Lew Reports
[1983J1 Sri LR.
notice under this section – should call upon thelegal representative to show cause why the decreeshould not be executed against him – see the PrivyCouncil decision of IRagunath Das vs. 'Sundaf Das'Khetri (8) decided in connection with section 248of the Indian Code of 1882. The notice should be toshow cause against the application for executionand not to the application for substitution. Inshowing cause against the application for executionone of the defences open to the party noticed couldbe that he has been wrongly substituted as legalrepresentative.
Now to turn to the third question. There isthe highest authority for the proposition thatexecution without notice where notice is expresslyor impliedly stipulated} is void for want ofjurisdiction and not merely voidable. So Soertsz- A.C.J. held in the case of Edward vs. de Silva(supra) and K.D. de Silva J. in Wimalasekera vs.Parakramg Saoudra Co-operative AgriculturalProduction and Sales Society Ltd.(9) with referenceto section 763 of the Civil Procedure Code. InRagunath Dss vs. Sundar Das Khetri(supra) the PrivyCouncil held that a notice under section 248 (ofthe Indian Code of 1882 which corresponds generallyto our section 347) is essential for the Court toclothe itself. with jurisdiction to proceed toexecution against thelegal representativeofa
deceased judgment-debtor. Our local decisions onsection 347 are to the same effect – see .forinstance the cases of Perera vs.. Novishamy (10),Fernando vs. Thamhiraja(11) and Rodrigo vs.Weerakoon(12). The salne principle will apply wherenotice is not issued ofan application for
execution against thelegal representativeofa
deceased judgment-debtor under section 341 of theCivil Procedure Code.The. issue of execution withoutnotice will be nullandvoid for wantof
jurisdiction.
Tyagarajah v. Perera (Soza, J.)
399
SC
But a further question arises. Although ,notice in due form has not been issued will theexecution proceedings be null and void even wherethe legal representative has become otherwise awareof the application for execution? Fernando A.J. inthe case of Sirimala Veda v. Siripala (supra)observed that the Court will not be disposed tointerfere with execution proceedings on merelytechnical grounds when the requirements of thestatute have been substantially fulfilled. Again inthe case of Latiff vs. Seneviratne (supra) Hearne J.(with whom Soertsz J. agreed) said that executionproceedings will not be set aside upon technicalgrounds when the execution has been substantiallyright. As Soonavala says in his treatise onExecution Proceedings (1958) at page 850
"The object of the rule is to give the j.d. anopportunityto showcause whytheexecution
should not proceed,and if thej.d.is aware
of the proceeding, the Court has jurisdictionto hold the sale. Consequently if though nonotice is served, he appears and contests theapplication or if he was served with a noticeunder Rule66 andwas thusaware of the
application pending against him, the object ofthe rule is achieved and the proceedings arevalid."
Rule 66 refersto proclamationsofsales in
execution by public auction. Soonavala is herediscussing Order 21 Rule 22 which provides also fornotice to the legal representative of a deceasedjudgment-debtor before execution issues but isotherwise similar to our section 347. On the Indian'Rule there is the very illuminating judgment ofRankin C.J. in the case of Chandra Nath Bagchi vs.Nabadwip Chandra Dutt (13). This was a case wherethe judgment-debtor appearing on notice under Rule66 pleaded absence of notice under Rule 22although he had actively participated in the
_400 .
. Sri Lanka Law Reports
[1983] 1 Sri LR
proceedings tor two years. Citing another casewhere the facts were similar Rankin C.J. said :
"There was a case somewhat similar to thisbefore the High Court of Patna, namely thecase of Fakhrul Islam v. Bhubaneswari Kuer(14). In that case, execution had proceededand an appeal was taken to the High Courton the ground of absence of notice underR.22 and the High Court set aside theexecution proceedings. The case went backto the executing Court and, after furtherproceedings, a sale was directed. Thereuponan objection was taken that, even so, nonotice yet had been served under 0.21, R.22 and still the sale was bad. Healing withthat kind of objection, the learned JudgeKulwant Sahay,J., said
'All that 0.21,R.22 requires is that an
opportunity should be given to thejudgment-debtors against whom the executionis taken out more than a year after thedecree to show cause why execution shouldnot proceed.!
In my judgment, that is. the substance and themeaning of the requirement." ( pp.477, 478).
And a little later on in his judgment Rankin C.J.after affirming the principle that there would beno jurisdiction without notice at least insubstance to the party entitled to nptice, made thefollowing trenchant remarks
"It appears to me to be merely piling unreasonupon technicality to hold upon the circums-tances of this case that it is open to thejudgment-debtors on these grounds to object tothe jurisdiction of the Court because theyhave not got a formal notice to do something,namely to dispute the execution of the decreewhen in point of f-xt they were busy disputing
sc .
Tyagarajah v. Perera (Soza, J.)
401
about it in all the Courts for the best partof the last two years. I decline to push thedoctrine so far as,that and it seems to methat the execution should proceed." (p.478)
The same reasoning will apply to executionproceedings under section 341 of our CivilProcedure Code. In the instant case no notice ofthe application for execution was issued or servedon the legal representative of the deceasedjudgment-debtor before writ was first issued onAugust 6; 1980. If Mrs. Malcolm Perera and Mrs.Elizabeth Fonseka are one and the same person asthey have been held to be, then the secondrespondent can rightly complain that she had nonotice of the application for execution and theissue of writ was bad/ The resistance to the Fiscaloffered by the second rer.por.dent cannot then bevisited with penal consequences.
I might add here that If Mrs. ElizabethFonseka is not the legal representative of thedeceased judgment-debtor, then she is not a personentitled to notice of the application forexecution. The order to issue writ of execution asagainst her would not then be void. As DriebergA.J. said in Kannangara vs. Peries (15) at page 80
"Notice is required in the interests ofparties against whom execution is sought, andthe absence of notice makes the executionproceedings void as against them and notmerely voidable, but I do not think they canbe regarded as void as against persons notparties to the action and who were notentitled to notice.” (emphasis mine).
The second respondent received notice inconnection with the proceedings taken against her'for resisting the Fiscal. At the inquiry that
402
Sri Lanka Law Reports
[1983] 1 Sri LR.
ensued she denied she was the same person as Mrs.Malcolm Perera and challenged the validity of thesubstitution and issue of writ. The question of heridentity has been resolved against her.. She madefull use of the opportunity given to her to opposethe issue of writ of execution. To insist on freshnotice of the application for execution beingissued would be tantamount to giving the secondrespondent a second bite at the same cherry. Thesecond order for the reissue of writ was made afterthe- second respondent had been afforded everyopportunity of opposing the application forexecution and the substitution. She made full useof this opportunity and on the facts has beenworsted. To put it euphemistically she has inaddition no recognisable right to be in possessionof the premises in suit.
Therefore the first order to issue writ madeon 6.8.1980 was bad and I uphold the decision ofthe Court of Appeal in regard to this order. Myconclusion in regard to the second order to issuewrit made on 6.4.1982 is that it is unexceptionableand valid. 1 allow the appeal in regard to thissecond order to issue writ of execution. I directthat writ of execution as ordered on 6.4.1982 bythe District Judge do issue. In order to bring thename of the respondent into line with the findingsof the District Judge and the Court of Appeal Idirect that the name of the respondent . be amendedto read as Mrs. Malcolm Perera alias Mrs. Elizabeth.Fonseka. In view of the fact that all theseprotracted proceedings are attributable to thefailure to issue notice on the first occasion, Idirect that the parties bear their own costs bothhere and in the Courts below..
•
Appeal dismissed re.order of 6,8.1980.
Appeal allowed re.order of 6.4.1982.