040-NLR-NLR-V-17-VALLIPILLAI-v.-PONNUSAMY.pdf
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1918*
Present: Pereira J. and De Sampayo A.J.
VALLIPILLAI v. PONNUSAMY.
86—D. G. Jaffna, 1,323.
Testamentary proceeding—Passing of final account—Subsequent appli-cation for judicial settlement.
There is no provision in the Civil Procedure Code for the filing ofa ** final account '* in ' administration or testamentary proceedings ;and where a Court had adopted a practice, the main features ofwhich were that the executor or administrator was allowed to filea “ final account '* which, after notice to parties interested, was“ passed " by the Court, and the estate declared closed,—
Held, that this practice could not be allowed to supersede theprocedure of judicial settlement provided for by the Code.
fJ^HE facts appear from the judgment.
H. J. C. Pereira and Wadsworth, for the appellant.—There wasno judicial settlement of the accounts in this case. The “ passingof the final accounts,” whatever that may mean, does not have theeffect of making all the disputes between the parties res judicata.There is no proper order in this case. The procedure indicated inchapter LV. of the Code was not followed.
*
H. A. Jayewardene (with him Elliott and Balasingham), for therespondent.—The appellant was noticed to show cause against thepassing of the final account. He did not show any cause. Heshould not be allowed to re-open the proceedings at any time hechooses. The administratrix became functus officio when the .finalaccount was passed.
Cur. adv. vult.
September 23, 1913. Pereira J.—
This is an appeal from an order of the District Judge refusing anapplication made by the appellant for the judicial settlement of theaccounts of the respondent as administratrix of the estate of thedeceased Arumugam Velupillai.
The appellant was admittedly a person interested in the dueadministration of the estate, but the. District Judge refused hisapplication on the ground that the administratrix had filed, what hetermed a “ final account,” and that the account had been acceptedand ” passed ” as correct by the Court after notice to-the appellantand all the other parties interested. The District Judge says that,when a final account is filed, the ” practice of the Court is to issue
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notice to all the respondents to show cause against the final accountbeing passed, and after hearing the objections, if any, to pass thefinal account, and close the estate. ” This procedure he calls ajudicial settlement; at any rate, he thinks it is a procedure that istantamount to a judicial settlement. It is certainly not a procedurethat is warranted by the Code. In section 553 the Code speaks ofthe administrator filing a true account of his administration,"but it does not invest this account with the attribute of finality, noris it referred to as a “ final account and I think it is manifestfrom the details of the procedure laid down in chapter LV. of the Codethat it was never intended that a procedure such as that describedby the District Judge should take the place of the procedure pre-scribed in chapter LV., nor do I think that it can effectually take itsplace. The present case itself affords an apt illustration. In theaccount filed by the administratrix there are several items—no lessthan five have been pointed out to us as examples—of amounts dueto the estate on bonds and from other sources, but not recovered bythe administratrix, and therefore not yet distributed by her amongthe heirs. In the event of a judicial settlement the Court would,of course, either adjourn the proceedings to enable the administratorto make these recoveries by process of law, or direct that the debtshe sold and the proceeds accounted for, or that the debts be dulyassigned to the heirs, and thus achieve finality. As matters stand,the estate has not in fact been closed. Moreover, as observedalready, the procedure adopted by the District Judge is not the sameas that laid <iown in chapter LV. of the Code, and it cannot well besubstituted for it. The latter procedure is one that the Code givesthe right to every person interested to claim from the Court.
For the reasons given above I would set aside, the order appealedfrom and allow the application for judicial settlement with costs.
19ft.
Pkbexba J.
Vallipillov. ,
Ponnuaamy,
De Sampayo A.J.—
I am of the same opinion. The practice adopted in the DistrictCourt is one which was in vogue before-' the enactment of the CivilProcedure Code, and even then I do not think that a mere order pur-porting to pass the account of an executor or administrator had theeffect of disentitling a party to. bring an administration suit for thepurpose of having the account properly taken. But after the Codethe practice became obsolete and inapplicable, and an administrationsuit no longer necessary. I may in this connection refer to In rethe Estate of Baboon,l where, under the old practice, the Court had bya formal order passed an executor’s account and closed the estate,and where what purported to be the final account showed the estatehad not been ■ fully distributed. This Court held that a petition. under the Code (whieh in the meantime had come into force) praying
* C. L. R. 41.
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1018. for an order requiring the executor to render an account, 'and toDk Sampayo deliver to the petitioner his distributive share was in order. InA.J. this case there is much less reason for saying that the appellant isVaUipWa v. precluded from making his present application by anything pre-Ponnutamy viously done. There was no formal order entered of record. Theso-called order relied on is an entry in the journal of date November22, 1912. This entry is a mere scrawl, the greater part of which iswholly illegible, and in the midst of many erasures and inter-lineations a few words are discernible, which are supposed to read as“ final account passed, and estate closed." It is hardly possible toregard this as a formal order of Court. Moreover, the appellantwas not present or represented on the day for which the matter of“ inquiry ’’ was fixed. The District Judge says that the appellantmust “ purge his default " before he can be allowed to make thepresent application. I cannot find in the record the notice issuedto the heirs, but the motion of the administratrix was “ to issuenotice of the final account to the heirs." I cannot regard this asanything more than an intimation to the heirs that the adminis-tratrix had filed her account. I do not 6ee how the appellant couldhave gathered from it that there was to be an " inquiry " intoaccounts or that anything in the nature of a judicial settlement ofaccounts was intended to be done. In my opinion the appellantwas not in default in the sense understood by the District Judge andeven if he had due notice, the provisions of the Code are still availableto him for the purpose of having the account of the administratrixjudicially settled.
Set aside.