027-SLLR-SLLR-1998-V-2-BALASUBRAMANIAM-AND-ANOTHER-v.-UPALI-DE-SILVA-AND-ANOTHER.pdf
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Balasubramaniam and Another v, Upali de Silva and Another 229
BALASUBRAMANIAM AND ANOTHERv.
UPALI DE SILVA AND ANOTHER
SUPREME COURTG. P. S. DE SILVA, CJ„
PERERA, J. ANDBANDARANAYAKE, J.
S.C.APPEAL NO. 185/97
A. REVISION APPLICATION NO. 768/95
C. BATTICALOA CASE NO. 5740/M
28TH APRIL AND 14TH AND 28TH MAY, 1998
Landlord and tenant – Death of judgment creditor before decree is fully executed- Substitution of legal representative – Whether notice to judgment debtor ismandatory – S. 341(3) of the Civil Procedure Code.
The plaintiff filed action against his tenant, the original defendant for arrears ofrent and ejectment from the premises in suit. The defendant died during thependancy of the action. After substitution of the defendant's wife and children,the case was settled but the substituted defendants defaulted in the payment ofarrears of rent in terms of the settlement. Consequently the District Judge issuedwrit. An appeal by the substituted defendants against the order issuing the writwas dismissed by the Court of Appeal. In the meantime the plaintiff had died,having gifted the house to one of her daughters, the 1st appellant. She alongwith her husband, the 2nd appellant applied to be substituted in the room of thedeceased plaintiff. The District Court allowed the application and issued writ. Alegal objection was raised by the 1st and 2nd respondents, another son-in-lawand a daughter of the deceased plaintiff – husband and wife – that the substitutionof the appellants without notice to the respondents was illegal.
Held:
The provision applicable to the substitution in the room of the deceased judgmentcreditor is section 341 (3) of the Civil Procedure Code. Having regard to the wordingof that section, the intrinsic nature of execution proceedings, the fact that the 2nd
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respondent was not a party to the action and that she had no 'apparent' or'recognizable' right to remain in possession of the premises in suit, it was notopen to the 2nd respondent to raise the legal objection to the substitution; andthe District Court was not required to give notice of the application to anyrespondent.
Case referred to:
1. Thyagarajah v. Perera (1983) 1 Sri LR 380 at 390 and 391.
APPEAL from the judgment of the Court of Appeal.
S. Mahenthiran with Mrs. F. M. Markar for the appellants.
Manohara de Silva for the respondents.
Cur. adv. vult
August 31, 1998
G. P. S. DE SILVA, CJ.
The plaintiff instituted these proceedings on 1.3.73 against his tenantW. Jayasinghe alias Jayasuriya for arrears of rent and ejectment fromthe premises in suit. While the action was pending the defendant diedand his wife and his three children were substituted in the room ofthe deceased defendant. The present 1st respondent to this appealwas appointed guardian ad litem of the minor children and was addedas the substituted 5th defendant.
On 26.3.74 the case was settled. The substituted defendants,however, defaulted in the payment of arrears of rent in terms of thesettlement and, after inquiry, writ was issued on 18.9.80. The sub-stituted defendants preferred an appeal to the Court of Appeal againstthe order of the District Court issuing writ. The appeal, however, wasdismissed by the Court of Appeal on 19.3.86. The record was receivedfrom the Court of Appeal in the District Court of Batticaloa on 25.4.86.The District Court directed the issue of notice on the plaintiff and 5thsubstituted defendant but not on the substituted 1st defendant (thewidow). On 8.7.86 the District Court was informed that the plaintiffwas dead. The plaintiff had in fact died in 1983. The court thereupondirected the parties "to take steps and move".
It was only on 28.7.94 that the present 1st and 2nd appellantsmoved to have themselves substituted in the room of the deceased
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plaintiff. The District Judge has expressed the view that the delay wasdue to the fact that the court was not functioning for quite some timeby reason of the "unsettled conditions". The 1st appellant is a daughterof the deceased plaintiff and the 2nd appellant is the son-in-law. Inthe meantime the 1st respondent to this appeal (substituted 5thdefendant) got married to another daughter of the deceased plaintiff.This was in 1982. The daughter who married the 5th substituteddefendant is the 2nd respondent to this appeal.
The District Court allowed the application made by the 1st and2nd appellants to have themselves substituted in the room of thedeceased plaintiff and also allowed the application for execution ofwrit. Against this order of the District Court the present respondentsmoved the Court of Appeal by way of revision to have the ordersallowing the substitution of the appellants in the room of the deceasedplaintiff and the order issuing writ set aside. The Court of Appealallowed the application in revision and set aside the order substitutingthe appellants in place of the original plaintiff and all orders madethereafter including the order issuing writ. The present appeal isagainst the judgment of the Court of Appeal.
The principal ground on which the Court of Appeal allowed theapplication in revision was the failure to issue notice of the applicationmade by the present appellants for substitution in the room of thedeceased plaintiff on the 1st and 2nd respondents. Mr. Manohara deSilva appearing on behalf of the respondents contended before usthat the section in terms of which the District Court could have allowedthe appellants' application for substitution is section 341 (3) of the CivilProcedure Code and that the issue of notice of the application onthe 1st and 2nd respondents was a mandatory requirement. On theother hand, Mr. Mahenthiran for the appellants urged that the sub-stitution was in terms of section 339 (1) of the Civil Procedure Code.
Before I proceed to consider these submissions it is relevant tostate that the case for the appellants was that the deceased plaintiffby deed No. 874 dated 10.5.76 gifted the premises in suit by wayof dowry to his daughter, the 1st appellant. Although the 1st respond-ent (the 5th substituted defendant) in his statement of objections filedin the District Court pleaded that the deceased plaintiff had “cancelledthe purported deed of dowry" yet no evidence whatsoever was pro-duced to establish the alleged revocation of the deed of gift. In fact
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the deed of gift relied on by the 1st appellant is a document filedof record (Folio 199). For the purpose of these proceedings, I holdthat the deceased plaintiff had gifted the premises in suit to the 1stappellant by the said deed No. 874 of 10.5.76.
On the basis of the gift of the premises in suit to the 1st appellant,Mr. Mahenthiran argued that the 1st appellant was the "transferee"of the decree within the meaning of section 339 (1) of the CivilProcedure Code and was accordingly entitled to move for “substitution"and for execution of the decree. With this submission, I do not agree.By reason of the gift there was no “transfer" of the decree by"assignment in writing or by operation of law" within the meaning ofsection 339 (1) of the Civil Procedure Code. I accordingly hold thatsection 339 (1) of the Civil Procedure Code has no relevance to theseproceedings.
It seems to me that the relevant provision in so far as theseproceedings are concerned is section 341 (3) of the Civil ProcedureCode, as rightly submitted by Mr. Manohara de Silva. Mr. de Silva,however, strongly urged before us that the substitution purported tohave been made in terms of section 341 (3) was bad in law inasmuchas it was made without notice to the 1st and 2nd respondents.Mr. de Silva further contended that the 2nd respondent being adaughter of the deceased plaintiff was an "heir" and if she had noticeof the application made by the appellants she would have been ina position to challenge the validity of the gift of the premises in suitto the 1st appellant. In short the principal contention of Mr. de Silvawas that in the absence of notice to the 1st and 2nd respondents,the substitution of the 1st and 2nd appellants in the room of thedeceased plaintiff was made without jurisdiction, and the order forissue of writ was also tainted with the same illegality. This, in sub-stance, was the view taken by the Court of Appeal. It therefore seemsto me that the true question that arises for consideration before usis whether the provisions of section 341 (3) of the Civil ProcedureCode required the District Court to issue notice on the 1st and 2ndrespondents. The finding of the Court of Appeal was that no noticewas issued on the respondents. I think that finding of fact must remainundisturbed, though Mr. Mahenthiran submitted that notice was servedon the 1st respondent.
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Section 341 (3) of the Civil Procedure Code reads thus:- "Ifthe judgment creditor dies before the decree has been fully executed,the legal representative may apply to the court to have his nameentered on the record in place of the deceased and the court shallthereupon enter his name on the record."
The matter upon which the court has to be satisfied is as to whetherthe person making the application is the “legal representative" of thedeceased plaintiff. If the court is so satisfied “the court shall thereuponenter his name on the record". Having regard to the wording of thesection it seems to me that the court is not required to give noticeof the application to any “respondent". I am fortified in taking this viewby reason of the significant difference in the language used in section341 (1). Section 341 (1) applies to a case where the judgment debtordies before the decree had been fully executed. Section 341 (1) readsthus:- "If the judgment debtor dies before the decree has been fullyexecuted, the holder of the decree may apply to the court whichpassed it, by petition, to which the legal representative of the deceasedshall be made respondent, to execute the same against the legalrepresentative of the deceased". In my opinion the absence of thewords underlined above in section 341 (3) is of the utmost significance.Section 341 (3) does not contemplate an application by petition towhich a party "shall be made respondent".
The next question is whether the 1st appellant (that is, the daughterof the deceased plaintiff to whom the premises had been gifted) wasthe "legal representative" within the meaning of section 341 (3). Nowsection 338 (3) (b) of the Civil Procedure Code defines the expression“legal representative" to mean "an executor or administrator or in thecase of an estate below the value of five hundred thousand rupees,the next of kin who have adiated the inheritance: Provided however,that in the event of any dispute arising as to who is the legalrepresentative the provisions of section 397 shall, mutatis mutandis,apply".
Having regard to the fact that the premises were gifted by thedeceased plaintiff to the 1st appellant, it seems to me she is onewho has "adiated the inheritance" and is therefore the "legal repre-sentative" within the meaning of the definition.
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Mr. Manohara de Silva contended that the 2nd respondent (thedaughter of the deceased who married the 1st respondent) disputedthe validity of the gift and relied on a last will executed prior to thegift. Counsel argued that in view of the dispute in regard to title, therearose a “dispute" as to who the legal representative of the deceasedplaintiff was and that the court should have tried this question as a"preliminary issue" before making an order for "substitution”.
With this submission, I am afraid, I cannot agree. In the first place,the 2nd respondent was at no time a party to the action. Whateverrights she claims she has cannot be agitated in these executionproceedings. Secondly, she has no "apparent" or "recognizable right"to remain in possession of the premises in suit. Moreover, as observedby Soza, J. in Tyagarajah v. Perera and others (1983) 1 Sri LR 380at 391: "At the outset it is well to remember that in executionproceedings the statutory procedures are so designed as to assist thejudgment creditor to recover the fruits of his judgment and not to affordfacilities to the judgment debtor to defeat or delay the execution ofthe decree of court". Again, at page 390 of the same judgment Soza,J. states: "The substitution of the legal representative is merely a stepin aid of execution". Having regard to the intrinsic nature of executionproceedings and the fact that the 2nd respondent was not a partyto the action. I hold that it was not open to the 2nd respondent toraise a "preliminary issue" as contended for by Mr. Manohara de Silva.
For these reasons, the appeal is allowed, the judgment of the Courtof Appeal is set aside, and the order of the District Court dated31.10.95 allowing the issue of writ is affirmed. In all the circumstances,I make no order for costs.
PERERA, J. – I agree.
BANDARANAYAKE, J. – I agree.
Appeal allowed.