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Present: Loos A.J.—“
WEEBASOOBIYA v. ANGO NONA.
262— G. R. dalle, 11,105.
Procedure Code, ss, 214 and 216.
The word “ party " in section 215, Civil Procedure Code, means,the actual party to the action, and will not include his executor oradministrator.
rjVEEE facts are set out in the judgment.
Keuneman, for plaintiff, appellant.—Section 214 of the CivilProcedure Code provides for the taxation of bills of costs between“ party and party ” or between “ proctor and client, ” and section215 makes it imperative on the proctor to deliver unto th'e partycharged therewith a bill of such fees a month before commencing anaction for the recovery of any fees. Thus, the word “ party ” insection 215 refers solely to a party to the action, and not to theexecutor or administrator of such party or to any third person fromwhom the proctor may be entitled to recover the costs. It is onlythe actual party to the action that must be given a month’s notice.The English procedure on this point is similar. 6 and 7 Viet., eh. 73,section 37. It has been held under this section that the defence of“ no signed bill delivered ” is available only to the actual client, andnot to a third person who has agreed to pay costs. Greening v.Reeder. 1 Counsel cited also 26 Hals., pp. 774-780.
Peri Sundaram (with him R. L. Pereira), for defendant, respon-dent. “ Party to be charged therewith ” in section 215, CivilProcedure Code, would include the administrator, who is liable topay the proctor’s fees. Even if it co.uld be construed that the“ client ” in section 214 is the party to the case, the legal personaof the deceased client vests in the administrator, and he is thereforeentitled to a month’s notice. Section 215 provides that the bill ofsuch fees should be delivered unto the party charged. therewith, orleft with him at his dwelling house or last known place of abode.This is done in order to give the heir or administrator interested inthe estate of the deceased an opportunity of objecting to any itemsin the bill.
Gur. adv. vult.
i 40 W.B. 623.
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December 19, 1919. Loos A.J.—
This is am action by the plaintiff, who was the. proctor Of thedefendant's deceased husband in the action No. 10,362 of theDistrict Court of Galle, for the recovery of a balance sum of moneydue to him as costs in that action by the defendant’s husband.
The defendant has obtained letters of administration -to the estateof her deceased husband.
The learned Commissioner has found in favour of the plaintiff onall the issues framed, except the following' one, viz. :—
Can the plaintiff maintain this action without complying with theprovisions of section 215 of the'’Civil Procedure Code?
The plaintiff appeals against his finding on that issue.
Section 215 provides that " no proctor shall commence or maintainany action fop the recovery of any fees, charges, or disbursementsat law until the expiration of one month or more after he shall havedelivered unto the party charged therewith, or left with him at his .dwelling house or last known place of abode, a bill of such fees,charges, and disbursements subscribed by such proctor . . . ”
It is admitted that no such bill was delivered to the defendant’sdeceased husband by the plaintiff or to the defendant, who is theadministratrix of his estate.
It'was contended on behalf of the defendant that the words “ untothe party charged therewith ” refer, not merely to a party to theaction, but to any pereon from whom it is sought to recover the costs,. and the learned Commissioner has upheld that contention.
The plaintiff contends, however, that it is clear from the pro-visions of section 214 of the Code that , the word “ party ” used insection 215 refers solely to a party to the action, and that a thirdperson is not entitled to a delivery of .the bill of costs before theinstitution by the proctor of an action for the recovery of costs dueto him by a party to the action. It seems to me that the word“party” in section 215 must be•taken to mean a party to theaction.
If the intention of tbe Legislature had been that any one fromwhom the proctor sought to recover his costs ^as entitled to receivethe bill of costs, the word “ person ” would probably have been usedin section 215 instead of the word “ party, ” especially in view of thefact that section 214 indicates, the interpretation to be placed onthe word “ party. ” –
I have the less hesitation in coming to that opinion in view of thefinding in Greening v. Reeder1 that the defence of “ no signed billdelivered ” is available only to the actual client, and not to a .thirdperson who has agreed to pay the costs.
1 40 W. R. 623. .
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At the same time I think the plaintiff would have acted morediscreetly if he had delivered the bill to the defendant beforeinstituting this action.
It does not appear that the plaintiff’s bill for the amount claimedhas been taxed by the officer of the Court, and I think the properorder to make in this case is to set aside the finding of the learnedCommissioner on the issue referred to, and order the plaintiff tohave his bill taxed after notice to the defendant, and-that judgmentshould then be entered for the plaintiff for the amount at which thebill is taxed.
I make no order as to costs.
WEERASOORIYA v. ANGO NONA