006-NLR-NLR-V-13-SIVASUBRAMANIAM-v.-THAMOTHERAMPILLAI.pdf
( is )
May 7, 19C9
Present: Mr. Justice Wendt and Mr. Justice Middleton.
SIVASUBRAMANIAM v. THAMOTHERAMPILLAI.
C., Jaffna, 4,045.
Judgment against administrator on anote—Applicationby heir to
set aside judgment on the ground of administrator's fraud andcollusion—Properprocedureindicated—Separateaction—Judicial
settlement.
Plaintiff obtained judgment against the administratorof the
deceased maker of a note. Subsequently the widow of the makerfiled anaffidavit suggestingthatthenote wasa forgery, and
applied to be added as a party to the case, and moved that- thejudgment be set aside.
Held, that the widow,if she thought that the administrator bad
committeda breach of histrustbypermittingjudgment to go
by default, should have brought a separate action againstthe
administrator or should have surchargedthe amountofthe
judgment in the judicial settlement of the administrator's accounts.
A
PPEAL from & judgment of the District Judge of Jaffna(W. R. B. Sanders, Esq.). The facts material to this report
appear in the judgment of Wendt J.
Kanagasabai (with him Wadsworth), for the added party appellant-
Sampayo, K.C. (with him Balasingham), for the plaintiff,respondent.
( 19 )
May 7, 1909. Wendt J.—,Ma'J 7,1909
In this case the plaintiff, as endorsee of a promissory note,obtained judgment against his father, the administrator of themaker, in February, 1905. The costs were taxed the followingApril, but no further steps were taken. More than two yeara after-wards the widow of the maker filed an affidavit suggesting thatthe note was a forgery, and applied to be added as a party in termsof section 18 of the Civil Procedure Code and to have the judgmentset aside. An order nisi issued upon this application, and theplaintiff’s counsel on the returnable day stated that he had noobjection to the widow being allowed to intervene. The DistrictJudge accordingly allowed her to intervene. There is no recordshowing that she was made an added party.
It appears to me that these proceedings are altogether irregular.
The action had been regularly disposed of between the properparties and a final judgment had been entered. I should havethought that if the widow or the heirs considered that the adminis-trator had committed a breach of his trust by permitting judgmentto go by default, they would have had their remedy against himby a separate action, or would have been entitled in the judicialsettlement of his accounts to have the payment of the judgmentsurcharged. We were informed by the appellant’s counsel that ajudgment of this Court existed, which decided this very point infavour of his client. It has, however, not been produced, and I am.disposed to think that the circumstances there before the Courtmust have been very different from those of the present ease.
Passing this objection by, we have heard the merits argued.
[His Lordship then discussed the merits and dismissed theappeal.]
Middleton J.—
I agree. I have nothing to add.
Appeal dismissed.