093-NLR-NLR-V-22-MUTTUNAYAGAM-v.-BRITO-et-al.pdf
( 329 )
Present: Bertram C. J.
MUTTUNAYAGAM v. BRITO* et al.
380—D. C. Colombo, 52,818.
Civil Procedure Code, ss. 35 and 75—Plaintiff suing in one capacity—Claim by defendant in reconvention against ■plaintiff in anothercapacity.
Where a plaintiff brings an action in one capacity, it is notcompetent for the defendant to put in a claim against him inreconvention in another capacity.
r j ^HE facts appear from the judgment.
E. W. Jayawardene (with him Tisseverasinghe), for appellants.
A. St. V. Jayawardene (with him Bartholomeusz), for respondents.
June 21, 1920. Bertram C.J.—
This is an action to enforce a mortgage bond. The substantialplaintiff is really the second defendant. The plaintiff is nominallyan assignee of the bond, and was made plaintiff for the purpose of theaction in order to secure compliance with the provisions of the CivilProcedure Code, which require that in all mortgage actions themortgagor or the person who is in the position of the mortgagor shallbe made a defendant. The third and fourth defendants put in ananswer of a somewhat voluminous character, and in that answerthere is only the most exiguous trace of the contention they ulti-mately raised. In the settling of the issues, for the first time thereemerged their real plea that they were entitled to an account againstthe second defendant in another capacity, that is to say, as executorof his father-in-law, the original mortgagor. The District Judge,having framed this issue, was invited to make alterations in thepleadings, to adapt the pleadings to that issue. He declined to doso, and ultimately gave judgment in favour of the plaintiff on themortgage bond, but intimated' that the* Court would on propermaterial consider an application to withhold issue of the writ pendingthe settlement of the claim raised by the third and fourth defendantsin a separate action.
Against that judgment the present appeal is brought, and thesubstantial question which we have to decide on the appeal is this :Where a plaintiff brings an action in one capacity, is it competentfor the defendant to put in a claim against him in reconvention in adifferent capacity ? I quite agree with Mr. E. W. Jayawardenethat it might be very convenient if all matters of account betweenthe parties to this action could be decided in the present proceedings.But we have to determine this simple question of principle.
11*
( 330 )
1920.
Bbbtram
O.J.
Afottunaya-gam v, Brito
The case was argued for some time upon the bafeis of sub-section(2) of section 35 of the Civil Procedure Code, which declares that noclaim by or against an executor shall be joined with claims by oragainst him personally, except in certain specified cases. In myopinion, however, this case does not come.within that sub-section. Ithink this is quite clear from a consideration of the case of Macdonald v.Carington,1 In that case both Denman J. and Lindley J. expressedthe opinion that the corresponding English rule, namely, order 17,rule 5, does not apply to the case of a counter claim. On the samereasoning our section ought not be held to apply to a claim inreconvention. The principle of section 35 (2) is, I think, a simpleone. It is that, as a general rule, an action cannot be broughtagainst a man in his personal capacity and in his capacity asexecutor at the same time. To that there are certain* obviousexceptions which the course of practice has developed. One isthe case in which the claim against the executor personally ariseswith reference to the estate in respect of which he is sued as executor.The reason {or that exception is clearly explained in the Englishcase of Padwick v. Scot,2 The final sentence of the section mentionsanother obvious exception, namely, the case of two persons jointlyliable, one of whom becomes the executor of the other. Thesection, as I have said, does not appear to apply to claims in re-convention, though in an appropriate case we might no doubt applyits principles by analogy.
The case under consideration is not a case of joinder of claimsat all. It is the case of a person who sues in one capacity and iscalled upon to meet a claim in reconvention made against .him inanother. In deciding this question we are not governed by anyspecific section of the Civil Procedure Code. We have to applythe general principles of the Common law with regard to recon-vention which are discussed in the case of Silva v. Perera.3
We may conveniently inquire for this purpose what is the Englishprinciple in a similar case. This is explained by the judgment ofLindley J. in the case of .Macdonald v, Carington1 previously cited.Under the English rules of procedure, by order 19, rule 3, it is laiddown that a defendant may set off or set up by way of counterclaim any right or claim, whether such set off or counter claimsound in damages or not, and such .set off or counter claim shallhave the same effect as a statement of claim in a cross action.That rule is the foundation of our section 75 (e), though our ownenactment is not framed in precisely the same terms. Lindley J.speaking of that provision said that he understood the principleto be that the defendant in any action might set off or set up byway of counter claim any claim against the plaintiff in the samecharacter in which he sues himself. I think myself that this is a
1 2 Ck, D. 736, at page 743.*(1914) 17 N.L.R. 206,
1 4 C, P, D, 28,
( 331 )
principle which we ought to apply in regard to reconvention inour own system of law. I am, therefore, of opinion that this appealmust be dismissed, with costs. 1 have no doubt that the DistrictCourt, on proper application being made to it, will give effect to theintimation made by the District Judge in his judgment'.
It appears to be necessary that a formal amendment should bemade in the decree, as no date has been fixed for the payment. Inthe circumstances, it will be convenient that a date, three monthsfrom this date, should be fixed for this purpose. The costs of theappeal should be calculated upon the basis of 25 per cent, of theamount claimed.
Shaw J.—I agree.
Appeal dismissed.
1020*
Bebtbam
C.J.
Muttunaya-gam v. Brito