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Cap.

105] CIVIL PROCEDURE CODE

CHAPTER 105
CIVIL PROCEDURE CODE

Ordinances AN ORDINANCE TO CONSOLIDATE AND AMEND THE LAW RELATING TO THE PROCEDURE OF
Nos. 2 of 1889, THE CIVIL COURTS.
12 of 1895,
23 of 1901,
12 of 1904,
14 of 1907,
31 of 1909,
9 of 1917,
39 of 1921,
42 of 1921,
21 of 1927,
23 of 1927,
25 of 1927,
15 of 1930,
26 of 1930,
4 of 1940,
18 of 1944,
39 of 1945,
Acts
Nos. 7 of 1949,
43 of 1949,
20 of 1954,
48 of 1954,
32 of 1957,
49 of 1958,
3 of 1960,
24 of 1961,
5 of 1964,
23 of 1969.
24 of 1969,

Laws
Nos.I2ofl973,
44 of 1973,
25 of 1975,
19 of 1977,
20 of 1977,
Act
No. 53 of 1980.
[1st August, 1890.]

CHAPTER I being in force shall after this Ordinance


comes into operation arise before any court,
PRELIMINARY such court shall thereupon make application
Short title. 1. This Ordinance may be cited as the to the Court of Appeal for, and the Court of
Civil Procedure Code.* Appeal shall and is hereby required to give,
such special orders and directions thereupon
Where no 4.+ In every case in which no provision as the justice of the case shall require :
provision is is made by this Ordinance, the procedure
made special
directions to be and practice hitherto in force shall be Provided always that nothing in this
given by Court followed, and if any matter of procedure or Ordinance contained shall be held in any
of Appeal. practice for which no provision is made by way to affect or modify any special rules of
this Ordinance or by any law for the time procedure which, under or by virtue of the

* The Civil Procedure Code No. 2 of 1889 was repealed by the Administration of Justice (Amendment) Law,
No. 25 of 1975, with effect from 1st January, 1976. and was revived by section 2 of the Civil Courts Procedure
(Special Provisions) Law. No. 19 of 1977. with effect from 15th December. 1977.
t Sections 2 and 3 are omitted, as they repeal previous laws relating to procedure in Courts, etc., and have taken
effect.
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CIVIL PROCEDURE CODE [Cap. 11
provisions of any enactment, may have from " foreign court " means a court situate
time to time been laid down or prescribed to beyond the limits of, and not
be followed by any civil court in Sri Lanka having authority in, Sri Lanka;
in the conduct of any action, matter, or
thing of which any such court can lawfully "foreign judgment " means the judgment
take cognizance, except in so far as any such of a foreign court;
provisions are by this Ordinance expressly
repealed or modified. " Judge " means the presiding officer of a [2, Law 20 of
court and includes Judges of the 1977]
Interpretation. 5. The following words and expressions Supreme Court and of the Court of
in this Ordinance shall have the meanings Appeal, District Judges, Judges of
hereby assigned to them, unless there is Family Courts and Judges of
something in the subject or context Primary Courts ;
repugnant thereto;
"judgment" means the statement given
" action" is a proceeding for the by the Judge of the grounds of a
prevention or redress of a wrong; decree or order;

[2, Law 20 of " Attorney-General " includes the "judgment-creditor" and " decree-
1977] Solicitor-General, the Additional holder " mean any person in whose
Solicitor-General and any State favour a decree or order capable of
Counsel specially authorized by the execution has been made, and
Attorney-General to represent the include any transferee of such
Attorney-General; decree or order;

" cause of action " is the wrong for the "judgment-debtor" means any person
prevention or redress of which an against whom a decree or order
action may be brought, and capable of execution has been
includes the denial of a right, the made;
refusal to fulfil an obligation, the
neglect to perform a duty and the " legal document " includes all processes, [2, Law 20 of
infliction of an affirmative injury; pleadings, petitions, affidavits, I977-]
notices, motions and other
" civil court " means a court in which civil documents, proceedings, and
actions may be brought; written communications;

" order " means the formal expression of


" counsel" means an attorney-at-law
any decision of a civil court which
instructed by a registered attorney;
is not a decree ;
" court " means a Judge empowered by " original court " includes District Courts,
law to act judicially alone, or a Family Courts and Primary
body of Judges empowered by law Courts;
to act judicially as a body, when
such Judge or body of Judges is "Public Trustee" means the Public [2, Law 20 of
acting judicially; Trustee of Sri Lanka appointed 1977!
under the Public Trustee Ordinance
" decree " means the formal expression of and includes a Deputy Public
an adjudication upon any right Trustee or any other state officer
claimed or defence set up in a civil generally or specially authorized by
court, when such adjudication, so the Public Trustee to act on his
far as regards the court expressing behalf;
it, decides the action or appeal;
" recognized agent" includes the persons
(An order rejecting a plaint is a designated under that name in
decree within this definition.) section 25 and no others;

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[2, Law 20 of " registered attorney " means an attorney- will only lake effect in the event of his not
1977.] at-law appointed under Chapter V showing any good cause against it on a day
by a party or his recognized agent appointed therein for the purpose ;
to act on his behalf; (b) or a day is appointed by the court for
entertaining the matter of the application on
[2, Law 20 of " Registrar" in relation to a court the evidence furnished, and notice is given to
1977.] - includes an Additional, Deputy or the defendant that he will be heard in
opposition to it on that day if he thinks
Assistant Registrar;
proper to come before the court for that
purpose.
" signed " includes " marked " when the
person making the mark is unable 8. Save and except actions in which it is Procedure of
to write; by this Ordinance or any other law specially action to be
ordinarily
provided that proceedings may be taken by regular.
[2, Law 20 of " the Island " and " this Island " means way of summary procedure, every action [2,53 of
1977.] respectively the Island of Sri lanka; 1980.]
shall commence and proceed by a course of
regular procedure, as hereinafter prescribed.
" written " and " writing " include
" printed" and " print" and
" lithographed " and " lithograph " CHAPTER III
respectively.
OF THE COURT OF INSTITUTION OF ACTION
PARTI
9. Subject to the pecuniary or other Institution of
OF ACTIONS IN GENERAL limitations prescribed by any law, action actions:
shall be instituted in the court within the in what court
CHAPTER II local limits of whose jurisdiction

GENERAL PROVISIONS (a) a party defendant resides ; or


Action. 6. Every application to a court for relief
(b) the land in respect of which the
or remedy obtainable through the exercise
action is brought lies or is situate in
of the court's power or authority, or
whole or in part; or
otherwise to invite its interference,
constitutes an action.
(c) the cause of action arises; or
Procedure of 7. The procedure of an action may be
an action. either " regular " or " summary ". (d) the contract sought to be enforced
was made.
Illustrations
When it is alleged to be uncertain within When one of
In actions of which the procedure is regular, the the local limits of the jurisdiction of which two or more
person against whom the application is made courts may
of two or more courts any immovable entertain an
is called upon to formally state his answer to
property is situate, any one of those courts action.
the case which is alleged against him in the
application before any question of fact is may, if satisfied that there is ground for the
entertained by the court, or its discretion alleged uncertainty, record a statement to
thereon is in any degree exercised. that effect, and thereupon proceed to
entertain and dispose of any action relating
In actions of which the procedure is summary, the to that property ; and its decree in the action
applicant simultaneously with preferring his
application supports with proper evidence shall have the same effect as if the property
the statement of fact made therein; and if ^ere situate within the local limits of its
the court in its discretion considers that a jurisdiction:
prima facie case is thus made out

(a) either the order sought is immediately passed


Provided that the action is one with
against the defendant before he has been respect to which the court is competent as
afforded an opportunity of opposing it, but regards the nature and value of the action to
subject to the expressed qualification that it exercise jurisdiction.
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CIVIL PROCEDURE CODE [Cap.105
Of application 10. Any of the parties to an action the same cause of action. And judgment
for withdrawal which is pending in any original court may, may be given for such one or more of the
and transfer of
action. before trial, and after notice in writing to plaintiffs as may be found to be entitled to
[ 3, Law 20 of the other parties of his intention so to do, relief for such relief as he or they may be
1977.] apply to the Court of Appeal by motion, entitled to, without any amendment of the
which shall be supported by affidavit setting plaint for that purpose. But the defendant
out the grounds on which it is based, for the though unsuccessful, shall be entitled to his
withdrawal of such action from the court in costs occasioned by so joining any person
which it is pending and for the transfer of it who is not found entitled to relief, unless the
for trial to any other court competent to try court in disposing of the costs of the action
the same in respect of its nature and the otherwise directs.
amount or value of its subject-matter. And
the Court of Appeal may, on any such 12. Where two or more persons are Where joint
entitled to the possession of immovable tenants or
application after hearing such of the parties tenants in
as desire to be heard, and on being satisfied property as joint tenants or tenants in common.
that such withdrawal and transfer are common, one or more of them may
desirable for any of the following maintain an action in respect of his or their
reasons; undivided shares in the property in any case
where such an action might be maintained
(a) that a fair and impartial trial cannot by all.
be had in any particular court or
13. Where an action has been instituted Substituted
place; or and added
in the name of the wrong person as plaintiff,
plaintiffs.
or where it is doubtful whether it has been
(b) that some question of law of unusual
instituted in the name of the right plaintiff,
difficulty is likely to arise ; or
the court may at any stage of the action, if
satisfied that the action has been so
(c) that it is expedient on any other
commenced through a bona fide mistake,
ground,
and that it is necessary for the
determination of the real matter in dispute
withdraw any such action pending in any
so to do, order any other person or persons,
such court, and transfer it for trial to any
with his or their consent, to be substituted
other such court as aforesaid, upon any
or added as plaintiff or plaintiffs, upon such
terms that the Court of Appeal shall think
terms as the court thinks just.
fit. When the action might have been
instituted in any one of several courts, the 14. All persons may be joined as Defendants.
balance of convenience only shall be deemed defendants against whom the right to any
sufficient cause for such withdrawal and relief is alleged to exist, whether jointly,
transfer to one of the alternative courts. severally, or in the alternative, in respect of
the same cause of action. And judgment
Stamp duty. In no case in which any action is so may be given against such one or more of
transferred as aforesaid from one court to the defendants as may be found to be liable,
another shall any stamp fee be leviable in according to their respective liabilities,
the court to which the action is transferred without any amendment.
on any pleading or exhibit on which the
proper stamp fee has been paid in the court 15. The plaintiff may, at his option, join Who may be
from which the action is so transferred. as parties to the same action all or any of joined as
parties
the persons severally, or jointly and defendant.
CHAPTER IV severally, liable on any one contract,
including parties to bills of exchange and
OF PARTIES AND THEIR APPEARANCES, promissory notes.
APPLICATIONS, AND ACTS
16. Where there are numerous parties Where
Plaintiffs. 11. All persons may be joined as having a common interest in bringing or numerous
parties, one
plaintiffs in whom the right to any relief defending an action, one or more of such may sue or
claimed is alleged to exist, whether jointly, parties may, with the permission of the defend for all.
severally, or in the alternative, in respect of court, sue or be sued, or may defend in such

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an action on behalf of all parties so 19. No person shall be allowed to intervention


Notice. interested. But the court shall in such case intervene in a pending action otherwise than not therwise
, - - - , , allowed.
give, at the expense of the party applying so in pursuance of, and in conformity with, the
to sue or defend, notice of the institution of provisions of the last preceding section. And
the action to all such parties, either by no person shall be added as plaintiff, or as
personal service or (if from the number of the next friend of a plaintiff, without his
parlies or any other cause such service is not own consent thereto;
reasonably practicable, then) by public
advertisement, as the court in each case may
direct.
Provided however that any person on Except in cases
whose behalf an action is instituted or under section
Misjoinder not 17. No action shall be defeated by defended under section 16 may apply to the 16.
to defeat reason of the misjoinder or non-joinder of
action.
court to be made a party, and all parties
parties, and the court may in every action whose names are so added as defendants
deal with the matter in controversy so far as shall be served with a summons in manner
regards the rights and interests of the parties hereinafter mentioned, and the proceedings
actually before it. as against them shall be deemed to have
begun only on the service of such summons.
Nothing in this Ordinance shall be
deemed to enable plaintiffs to join in respect
of distinct causes of action. 20. The court may give the conduct of Conduct of the
the action to such plaintiff as it deems action
proper.
If the consent of anyone who ought to be
joined as a plaintiff cannot be obtained, he
may be made a defendant, the reasons 21. Where a defendant is added, the Amendment of
therefor being stated in the plaint. plaint shall, unless the court direct plaint
otherwise, be amended in such manner as
Parties 18. (1) The court may on or before the may be necessary, and a copy of the
improperly hearing, upon the application of either amended plaint shall be served on the new
joined may be defendant and on the original defendants.
struck out. party, and on such terms as the court thinks
just, order that the name of any party,
whether as plaintiff or as defendant
improperly joined, be struck out; and the 22. All objections for want of parties, or Objections for
court may at any time, either upon or for joinder of parties who have no interest non-joinder or
without such application, and on such terms misjoinder to
in the action, or for misj oinder as co- be taken before
as the court thinks just, order that any plaintiffs or co-defendants, shall be taken at hearing.
plaintiff be made a defendant, or that any the earliest possible opportunity, and in all
Addition defendant be made a plaintiff, and that the cases before the hearing. And any such
of parties.
name of any person who ought to have been objection not so taken shall be deemed to
joined, whether as plaintiff or defendant, or have been waived by the defendant-
whose presence before the court may be
necessary in order to enable the court
effectually and completely to adjudicate
upon and settle all the questions involved in 23. When there are more plaintiffs than Plaintiffs (or
one, any one or more of them may be defendants)
that action, be added. may authorize
authorized by any other of them to appear, one of them to
(2) Every order for such amendment or plead, or act for such other in any act for them.
for alteration of parties shall state the facts proceeding under this Ordinance; and in
and reasons which together form the ground like manner, when there are more
on which the order is made. And in the case defendants than one, any one or more of
of a party being added, the added party or them may be authorized by any other of
parties shall be named, with the designation them to appear, plead, or act for such other
" added party ", in all pleadings or processes in any such proceeding. The authority shall
or papers entitled in the action and made be in writing signed by the party giving it,
after the date of the order. and shall be filed in court.
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CIVIL PROCEDURE CODE [Cap.105
CHAPTER V the jurisdiction of the court within
which limits the appearance or
OF RECOGNIZED AGENTS AND application is made or act done, in
ATTORN EYS-AT-LAW matters connected with such trade
or business only, where no other
Appearances 24. Any appearance, application, or act agent is expressly authorized to
may be by in or to any court, required or authorized by make such appearances and [4, Law 20 of
party in
person, his law to be made or done by a party to an applications and do such acts. I977]
recognized action or appeal in such court, except only
agent, or such appearances, applications, or acts as by 26. (1) Processes served on the Processes
attorney- served on
at-law. any law for the time being in force only recognized agent of a party to an action or
recognized
attorneys-at-law are authorized to make or appeal shall be as effectual as if the same agent,
do, and except when by any such law had been served on the party 'in person, effectual.
otherwise expressly provided, may be made unless the court otherwise directs.
or done by the party in person, or by his
recognized agent, or by an attorney-at-law (2) The provisions of this Ordinance for
duly appointed by the party or such agent to the service of process on a party to an
act on behalf of such parly : action shall apply to the service of process
on his recognized agent.
Provided that any such appearance shall
be made by the party in person, if the court 27. (1) The appointment of a registered Appointment
so directs. An attorney-at-law instructed by attorney to make any appearance or of registered
attorney.
a registered attorney for this purpose, application, or do any act as aforesaid, shall
represents the registered attorney in court. be in writing signed by the client, and shall
be filed in court; and every such
Recognized 25. The recognized agents of parties by appointment shall contain an address at
agents. whom such appearances and applications which service of any process which under
may be made or acts may be done are the provisions of this Chapter may be served
on a registered attorney, instead of the party
(a) the Attorney-General, on behalf of whom he represents, may be made.
the State in respect of any court;
who is also authorized to depute his (2) When so filed, it shall be in force
power of appointing a registered until revoked with the leave of the court and
attorney on behalf of the State in after notice to the registered attorney by a
respect to any court to any person writing signed by the client and filed in
by a written document to be signed court, or until the client dies, or until the
by the Attorney-General, and to be registered attorney dies, is removed, or
filed in that court; suspended, or otherwise becomes incapable
to act, or until all proceedings in the action
(b) persons holding general powers of are ended and judgment satisfied so far as
attorney from parties not resident regards the client.
within the local limits of the
jurisdiction of the court within (3) No counsel shall be required to
which limits the appearance or present any document empowering him to
application is made or act done, act. The Attorney-General may appoint a
authorizing them to make such registered attorney to act specially in any
appearances and applications, and particular case or to act generally on behalf
do such acts on behalf of such of the State.
parties; which power, or a copy
thereof certified by an attorney-at- 28. If any such registered attorney as in Death or
law or notary, shall in each case be the last preceding section is mentioned shall incapacity of
registered
filed in the court; die, or be removed or suspended, or attorney.
otherwise become incapable to act as
(c) persons carrying on trade or business aforesaid, at any time before judgment, no
for and in the names of parties not further proceeding shall be taken in the
resident within the local limits of action against the party for whom he

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appeared until thirty days after notice to make a new entry in the register and cancel
appoint another registered attorney has the registration of the previous address.
been given to that party either personally or
in such other manner as the court directs. (4) The fee for registration of the
address for service or for a change of such
Service on 29. Any process served on the registered address shall be fifty cents, with an addition
registered attorney of any party or left at the office or
attorney. of ten cents for each folio after the first in
ordinary residence of such registered which the address is to be registered.
attorney, relative to an action or appeal,
except where the same is for the personal
appearance of the party, shall be presumed CHAPTER VI
to be duly communicated and made known
to the party whom the registered attorney
represents; and, unless the court otherwise OF THE SCOPE AND SUBJECT OF ACTION
directs, shall be as effectual for all purposes
in relation to the action or appeal as if the 33.* Every regular action shall, as far as Regular action,
same had been given to, or served on, the practicable, be so framed as to afford how to be
party in person. ground for a final decision upon the subjects framed.
in dispute, and so to prevent further
Agent to 30. Besides the recognized agents litigation concerning them,
accept service. described in section 25, any person residing
within the jurisdiction of the court may be 34. (1) Every action shall include the Every action
appointed an agent to accept service of whole of the claim which the plaintiff is shall include
process. Such appointment may be special entitled to make in respect of the cause of
whole claim.
or general, and shall be made by an action; but a plaintiff may relinquish any
instrument in writing signed by the portion of his claim in order to bring the
principal, which shall contain an address at action within the jurisdiction of any court.
which such service may be made, and which,
or, if the appointment be general, a duly
attested copy thereof, shall be filed in court. (2) If a plaintiff omits to sue in respect
of, or intentionally relinquishes any portion
No appointment under this section shall of, his claim, he shall not afterwards sue in
be of any force or effect for the purpose of respect of the portion so omitted or
enabling or authorizing process to be served relinquished. A person entitled to more than
on an agent so appointed in any action to one remedy in respect of the same cause of
recover money due upon the mortgage of action may sue for all or any of his
immovable property. remedies; but if he omits (except with the
leave of the court obtained before the
Agent to 30A. (I) The mortgagor of any hearing) to sue for any of such remedies, he
accept service immovable property may make application shall not afterwards sue for the remedy so
in action upon
mortgage of for the registration of the address of any omitted.
immovable registered attorney or any person for the
property. service of process in any action upon the
[2, Law 12 of (3) For the purpose of this section, an
1973.] mortgage. The application shall be made obligation and a collateral security for its
substantially in the form No. 11A in the performance shall be deemed to constitute
First Schedule. but one cause of action.
(2) The address for service shall be
Illustration
registered in or in continuation of the folio
in which is registered the mortgage of the
A lets a house to B at a yearly rent of Rs. 1,000. The
immovable property. rent for the whole of the two years 1886 and
1887 is due and unpaid. A sues B only for
(3) Where the applicant declares in his the rent due for one of those years. A shall
application that a previously registered not afterwards sue B for the rent due for the
address is cancelled, the Registrar shall other year.

* Sections 31 and 32 in Chapter V are repealed by Law No. 20 of 1977.


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CIVIL PROCEDURE CODE [Cap.105
Joinder of 35. (1) In an action for the recovery of the plaintiff, or at any subsequent stage of
claims in immovable property, or to obtain a the action if the parties agree, order separate
actions for
immovable declaration of title to immovable property, trials of any such causes of action to be had,
property. no other claim, or any cause of action, shall or make such other order as may be
be made unless with the leave of the court, necessary or expedient for the separate
except disposal thereof.

(a) claims in respect of mesne profits or (2) When causes of action are united,
arrears of rent in respect of the the jurisdiction of the court as regards the
property claimed; action shall depend on the amount or value
of the aggregate subject-matters at the date
(b) damages for breach of any contract of instituting the action, whether or not an
under which the property or any order has been made under the second
part thereof is held; or paragraph of subsection (1).
consequential on the trespass which
constitutes the cause of action; and 37. Any defendant alleging that the Application by
plaintiff has united in the same action defendant in
such cases.
(c) claims by a mortgagee to enforce any several causes of action, which cannot be
of his remedies under the mortgage. conveniently disposed of in one action, may
at any time before the hearing apply to the
Example.A sues B to recover land upon the court for an order confining the action to
allegation that the land belongs to C, and such of the causes of action as may be
that he. A, has bought it of C. A makes C a conveniently disposed of in one action.
party defendant; but he cannot, without
leave of the court, join with this claim an 38. (I) If, on the hearing of such Order of court
alternative claim for damages against C for application, it appears to the court that the thereon.
non-performance of his contract of sale. causes of action are such as cannot all be
conveniently disposed of in one action, the
In actions (2) No claim by or against an executor, court may order any of such causes of
against administrator, or heir, as such, shall in any action to be excluded, and may direct the
executors, &c.
action be joined with claims by or against plaint to be amended accordingly, and may
him personally unless the last-mentioned make such order as to costs as may be just.
claims are alleged to arise with reference to
the estate in respect of which the plaintiff or (2) Every amendment made under this
defendant sues or is sued as executor, section shall be attested by the signature of
administrator, or heir, or are such as he was the Judge.
entitled to or liable for jointly with the
deceased person whom be represents. CHAPTER VII

In other cases. 36. (1) Subject to the rules contained OF THE MODE OF INSTITUTION OF ACTION
in the last section, the plaintiff may unite in
the same action several causes of action 39. Every action of regular procedure Regular action
against the same defendant or the same shall be instituted by presenting a duly to commence
by plaint.
defendants jointly, and any plaintiffs having stamped written plaint to the court or to [ 6, Law 20 of
causes of action in which they are jointly such officer as the court shall appoint in this 1977.]
interested against the same defendant or behalf.
defendants may unite such causes of action
in the same action. 40. The plaint shall be distinctly written Requisites of
upon good and suitable paper, and shall plaint
, contain the following particulars : [7,law 20 of
Exception: But if it appears to the court that an
court may such causes of action cannot be 1977]
order
separation. conveniently tried or disposed of together, (a) the name of the court and date of
the court may, at any time before the filing the plaint;
hearing, of its own motion or on the
application of any defendant, in both cases (b) the name, description, and place of
either in the presence of, or upon notice to, residence of the plaintiff;

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(c) the name, description, and the place Illustrations
of residence of the defendant so far
as the same can be ascertained , (a) A sues as B's executor. The plaint must state
that A has proved B's will.

(d) a plain and concise statement of the (b) A sues as C*s administrator- The plaint must
circumstances constituting each state that A has taken out administration to
cause of action, and where and C"s estate.
when it arose. Such statement shall
be set forth in duly numbered 43. The plaint must show that the Plaint must
paragraphs; and where two or defendant is or claims to be interested in the show
more causes of action are set out, defendant's
subject-matter, and that he is liable to be interest and
the statement of the circumstances called upon to answer the plaintiffs liability to be
constituting each cause of action demand. sued.
must be separate, and numbered;
44. If the cause of action arose beyond Exemption
the period ordinarily allowed by any law for from bar from
(e) a demand of the relief which the lapse of time to
plaintiff claims; and instituting the action, the plaint must show be shown.
the ground upon which exemption from
such law is claimed.
(f) if the plaintiff has allowed a set-off
or relinquished a portion of his 45. Every plaint shall contain a Jurisdiction of
claim, the amount so allowed or statement of facts setting out the jurisdiction court to be
, , , 1 1 - averred.
relinquished, of the court to try and determine the claim
in respect of which the action is brought.
If the plaintiff seeks the recovery of 46. (1) Every plaint presented by a Subscription of
money, the plaint must state the precise registered attorney on behalf of a plaintiff plaint
amount, so far as the case admits. In an shall be subscribed by such registered
action for a specific chattel, or to establish, attorney. In every other case in which a
recover, or enforce any right, status, or plaint is presented, it shall be subscribed by
privilege, or for mesne profits, or for the the plaintiff; and his signature shall be
amount which will be found due to the verified by the signature of some officer
plaintiff on taking unsettled accounts authorized by the court in that behalf.
between him and the defendant, the plaint
need only state approximately the value of (2) Before the plaint (whether presented Court may
the chattel, right, status, or privilege, or the by the plaintiff or by a registered attorney in refuse to
amount sued for. entertain
his behalf) is allowed to be filed, the court plaint.
may, if in its discretion it shall think fit,
Land sued for 41. When the claim made in the action refuse to entertain the same for any of the
to be described is for some specific portion of land, or for following reasons, namely:
by metes and
bounds or some share or interest in a specific portion
sketch. of land, then the portion of land must be (a) if it does not state correctly, and
described in the plaint so far as possible by without prolixity, the several
reference to physical metes and bounds, or particulars hereinbefore required to
by reference to a sufficient sketch, map, or be specified therein;
plan to be appended to the plaint, and not
by name only. (b) if it contains any particulars other
than those so required ;

Plaintiff suing 42. When the plaintiff sues in a (c) if it is not subscribed, or subscribed
in a representative character, the plaint should and verified, as the case may be, as
representative
character must show, not only that he has an actual existing hereinbefore required;
show that the interest in the subject-matter, but that he
character has has taken the steps necessary to enable him (d) if it does not disclose a cause of
accrued to him.
to institute an action concerning it. action;

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CIVIL PROCEDURE CODE [Cap.105
(e) if it is not framed in accordance with value involved, or by reason of the
section 33 ; conditions made necessary to the institution
of an action in any particular court by
(f) if it is wrongly framed by reason of section 9 not being present, the plaint shall
non-joinder or misjoinder of be returned to be presented to the proper
parties, or because the plaintiff has court.
joined causes of action which ought
not to be joined in the same action,
48. Every order returning or rejecting a Order on
plaint shall specify the date when the plaint rejection of
and may return the same for amendment
was presented. and, so returned. or rejected,
, plaint.
then and there, or within such time as may
the name of the person by whom it was
be fixed by the court, upon such terms as to
presented and whether such person was
the payment of costs occasioned by the
plaintiff or registered attorney, and the fault
amendment as the court thinks fit;
or defect constituting the ground of return
or rejection; and every such order shall be
Provided that no amendment shall be
in writing signed by the Judge, and filed of
allowed which would have the effect of
record.
converting an action of one character into
an action of another and inconsistent
character; 49. (1) The plaintiff shall endorse on Memorandum
the plaint, or annex thereto, a memorandum of documents
to be endorsed
And may And provided further, that in each of the of the documents, if any, which he has on plaint.
reject. following cases, namely : produced along with it; and if the plaint is [8, Law 20 of
admitted, shall present as many copies on 1977.]
(g) where the relief sought is unstamped paper of the plaint as there are
undervalued, and the plaintiff, on defendants, translated into the language of
being required by the court to each defendant whose language is not the
correct the valuation within a time language of the court; unless the court, by
to be fixed by the court, fails to do reason of the length of the plaint or the
so; number of the defendants or for any other
sufficient reason, permits him to present a
(h) where the relief sought is properly like number of concise statements of the
valued, but the plaint is written nature of the claim made, or of the relief or
upon paper insufficiently stamped, remedy required in the action, in which case
and the plaintiff on being required he shall present such statements.
by the court to supply the requisite
stamps within a time to be fixed by (2) If the plaintiff sues or the defendant
the court fails to do so; or any of the defendants is sued in a
representative capacity, such statement shall
(i) when the action appears from the show in what capacity such plaintiff or
statement in the plaint to be barred defendant sues or is sued ; and the plaintiff
by any positive rule of law; may by leave of the court amend such
statements so as to make them correspond
(j) when the plaint having been returned with the plaint.
for amendment within a time fixed
by the court is not amended within
such time, Such memorandum and copies or
statements shall be examined by the
the plaint shall be rejected; but such Registrar of the court and signed by him if
rejection shall not of its own force preclude Sie finds them correct.
the plaintiff from presenting a fresh plaint in
respect of the same cause of action. 50. If a plaintiff sues upon a document Plaintiff to
in his possession or power, he shall produce produce with
plaint
Where plaint 47. In every case where an action has it in court when the plaint is presented, and document sued
presented to been instituted in a court not having shall at the same time deliver the document on
wrong court.
jurisdiction by reason of the amount or or a copy thereof to be filed with the plaint.

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To annex list 51. If he relies on any other documents like jurisdiction within the local limits of
of other (whether in his possession or power or not) whose jurisdiction the defendant resides,
documents.
as evidence in support of his claim, he shall who shall cause the same to be duly served
enter such documents in a list to be added on the defendant, or on each defendant, if
or annexed to the plaint. more than one, and shall as hereinafter
provided, return the same and the execution
And to state 52. In the case of any such document thereof to the court, duly verified by the
where not being in his possession or power, he
document not officer to whom the actual service thereof
in his shall, if possible, state in whose possession has been entrusted.
possession is. or power it is.

Action on lost 53. In the case of any action founded


negotiable upon a bill of exchange, promissory note, (2) (a) Every party to an action, not
instrument. appearing by a registered attorney, shall on
cheque, or any negotiable instrument, if it
be proved that the instrument is lost, and if or before the date specified in the summons
an indemnity be given by the plaintiff, to the deliver to the Registrar a memorandum
satisfaction of the court, against the claims substantially in the form No. 16A in the
of any other person upon such instrument, First Schedule setting out an address
the court may make such decree as it would (hereinafter referred to as the " registered
have made if the plaintiff had produced the address") for the service on him of the
instrument in court when the plaint was notice under section 80 and any other legal
presented, and had at the same time document required to be served on a party
delivered a copy of the instrument to be under the provisions of this Ordinance
filed with the plaint. unless otherwise provided. Every party shall
with such memorandum tender to the
Document not 54. A document which ought to be Registrar stamps to the value required to
produced with produced in court by the plaintiff when the cover cost of service of such notice by
plaint
inadmissible plaint is presented, or to be entered in the registered post.
afterwards list to be added or annexed to the plaint,
without leave, and which is not produced or entered
[9, Law 20 of
1977.] accordingly, shall not, without the leave of (b) Where a party appears by a
the court, be received in evidence on his registered attorney the address of the
behalf at the hearing of the action.
registered attorney contained in his
appointment shall be deemed to be the
CHAPTER VIII registered address of such party; and such
registered attorney shall, on or before the
OF THE ISSUE AND SERVICE OF date specified in the summons, tender to the
SUMMONS Registrar stamps to the value required to
cover cost of service by registered post, of
Summons. 55. (1) Upon the plaint being filed and the notice under section 80.
[10 Law 20 of the copies or concise statements required by
1977] section 49 presented, the court shall order
summons in the form No. 16 in the First (c) The despatch by registered post to
Schedule to issue, signed by the Registrar of the registered address of a party of the
the court, requiring the defendant to answer notice under section 80, and of any other
the plaint on or before a day to be specified legal document required to be served on him
in the summons. The summons, together
shall be deemed to be sufficient service.
with such copy or concise statement each
translated into the language of the
defendant where his language is not the
language of the court, attached thereto, (d) The Registrar shall keep and
shall be delivered under a precept from the maintain a list of the registered addresses
court in the form No. 17 in the said furnished to him under this subsection,
Schedule, or to the like effect, to the Fiscal which list shall be filed as part of the record
of the court or to the Fiscal of a court of of the case.

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SERVICE consider appropriate (including in a


case where an address has been
Personal 59.* Subject to the several provisions as registered under section 30A, the
service of to service hereinafter in Chapter XXIII sending of a copy of the summons
summons,
what is. contained, service of the summons shall be by registered post to that address);
made by delivering or tendering to the
defendant personally a duplicate thereof. (b) service effected in the manner
specified in paragraph (a) shall be
Service lo be 60. Whenever it may be practicable, the deemed to be service on the
personal if service of summons shall be made on the
practicable ; defendant.
otherwise as defendant in person ; but if, after reasonable
court may exertion, the Fiscal is unable to effect
direct. personal service, he shall report such 61. The service substituted by order of Substituted
inability to the court in a fair-written return the court shall be as effectual as if it had service to be as
effectual as
to the precept, having the summons been made on the defendant personally. personal.
attached thereto as an exhibit, and it shall
be competent for the court, on being 62. Whenever service is substituted by Substituted
satisfied by evidence adduced before it that order of the court, the court shall fix a day service'
the defendant is within Sri Lanka, to on or before which the defendant shall file [10 Law 20 of
prescribe any other mode of service as an his answer and comply with the other 1977]
equivalent for personal service : requirements of section 55.

Provided, however, that where such a 63. When there are more defendants When more
return is made by the Fiscal in an action for than one, service of the summons shall be defendants
than one,
the recovery of money due on the mortgage made on each defendant. service on
of immovable property, the court shall not each.
under the preceding provisions of this 64. When a defendant has an agent Agents to
section have the power to prescribe any appointed under section 30 empowered to accept service;
other mode of service as an equivalent for accept service, service of summons on such
personal service, but the following agent shall be sufficient. And in the case of
provisions shall apply whether or not the an action against partners relative to a
court is satisfied that the defendant is within partnership transaction, or to an actionable
Sri Lanka: wrong in respect of which relief is claimable
from the partners, as a firm, each partner is partners, and
manager.
(a) if the court is satisfied upon a an agent so empowered of each other
certificate filed in that behalf by the partner, as is also the person (if any) not
registered attorney for the plaintiff being a partner, who has the management of
that the mortgagor has not the business of the partnership at the
registered an address for service principal place of such business within the
under section 30A, or if such an local limits of the court's ordinary
address having been registered the jurisdiction.
court is satisfied that the Fiscal was
unable to effect service on such
agent under section 64A, the court Nothing in the preceding provisions of
shall upon application made by the this section shall be deemed to authorize
plaintiff, order that copies of the summons in an action to recover moneys
summons in such language as the due on a mortgage of immovable property
court may consider appropriate to be served on any agent appointed under
shall be affixed by the Fiscal in at section 30.
least three conspicuous places upon
the mortgaged property and at the 64A. Where the mortgagor has Service on
court-house, and may in its registered the address of an agent under agent in
mortgage
discretion direct such other acts or section 30A, service of summons may be action.
things to be done as the court may made on such agent and shall be sufficient.

* Sections 56, 57 and 58 are repealed by Law No. 20 of 1977.


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Cap.105] CIVIL PROCEDURE CODE

When 65. In an action relating to any business 70. Every order giving leave to effect Order for, to
defendant out or work against a person who does not such service shall direct the mode of service, prescribe mode
of jurisdiction of.
has manager reside within the local limits of the and direct that the defendant shall, on or [13, Law 20 of
within it. jurisdiction of the court from which the before the date specified in such summons, 1977.] .
summons issued, service on any manager or file his answer and comply with the other
agent who at the time of the service requirements of section 55.
personally carries on such business or work
for such person within such limits shall be 71. A summons under sections 69 and Form of
deemed good service; and for the purpose 70 shall be in the form No. 18 in the First summons.
of this section the master of a ship is the Schedule.
agent of his owner or charterer.
CHAPTER IX
Service on 66. In an action to obtain relief OF FILING ANSWER [14, Law 20 of
agent in charge respecting or compensation for wrong to
of immovable 1977.]
property. immovable property, if the service cannot be
made on the defendant in person, and the 72. If the defendant admits the claim of Judgment
defendant has no agent empowered to the plaintiff, the court shall give judgment against
accept service, it may be made on any agent against the defendant according to the
defendant if he
of the defendant in charge of the property. admits claim of
admission so made. Such admission shall be the plaintiff.
in writing, signed by the defendant and his [15, Law 20 of
Misdescription 67. No misnomer or misdescription of signature attested by an attorney-at-law.
1977.]
noi to vitiate any person or place in any such summons,
summons, &c.
order, or process shall vitiate the same, 73. If the defendant does not admit the Answer to be
provided that the person or place be therein plaintiffs claim, he shall himself, or his in writing.
[15, Law 20 of
described as he or it is commonly known, registered attorney shall on his behalf, 1977.]
and provided that such misnomer or deliver to the court a duly stamped written
misdescription be not such as to mislead the answer.
party served therewith.
75.* Every such answer shall be Requisites of
Service on 68. If the defendant be in jail, the distinctly written upon good and suitable answer-
defendant in summons shall be delivered by the Fiscal to paper, shall be duly stamped, shall be [17, Law 20 of
jail. subscribed by the defendant or his duly 1977]
the officer in charge of the jail in which the
defendant is confined, and such officer shall constituted representative as in the case of a
cause the summons to be served upon the plaint is provided for the plaintiffs
defendant. subscription, or if he is represented by a
registered attorney, by such registered
attorney, and shall contain the following
The summons shall be returned through
particulars:
the Fiscal to the court from which it is
issued, with a statement of the service (a) the name of the court, the number of
endorsed thereon, and signed by the officer
the case, and the date of filing the
in charge of the jail.
answer;

Service out of 69. Service of a summons out of Sri (6) the name of the plaintiff;
Sri Lanka. Lanka may be allowed by the court in all
cases in which the court has jurisdiction. (c) the name, description, and residence
Application Every application for an order for leave to of the defendant;
for, how made. serve such summons on a defendant out of
Sri Lanka shall be by motion and shall be (d) a statement admitting or denying the
supported by evidence (by affidavit or several averments of the plaint, and
otherwise) showing in what place or country setting out in detail plainly and
such defendant is or may probably be concisely the matters of fact and
found, and the grounds on which the law, and the circumstances of the
application is made. case upon which the defendant

* Section 74 is repealed by Law No. 20 of 1977.


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CIVIL PROCEDURE CODE [Cap.105
means to rely for his defence; this CHAPTER X
statement shall be drawn in duly
numbered paragraphs, referring by OF THE REPLICATION AND FURTHER
number, where necessary, to the PLEADINGS
paragraphs of the plaint;
79. Except in the case of a claim by a When
defendant in reconvention, no pleading after replication may
(e) when the defendant sets up a claim be allowed.
in reconvention the answer must answer shall be filed except by order of [19, Law 20 of
contain a plain and concise court on special motion to be made after 1977.]
statement of the facts constituting due notice to the other side, and before the
the ground of such claim which the day appointed for the hearing of the action,
defendant makes in reconvention. A upon such terms as to costs and the
claim in reconvention duly set up in postponement of the hearing of the action
the answer shall have the same as the court shall think fit. Such order shall
effect as a plaint in a cross action so not be made (except in the case of a claim in
as to enable the court to pronounce reconvention on the part of the defendant)
a final judgment in the same action unless the court is satisfied on such motion
both on the original and on the that the real issues between the parties
cross claim; but it shall not affect cannot be conveniently raised without such
the lien upon the amount decreed of further pleading. All pleadings after answer
any registered attorney in respect of shall be subject to the rules prescribed by
the costs payable to him under the section 75 relative to the form and substance
decree. of the answer, so far as the same can be
made applicable, and copies of such
pleadings shall be served on the opposite
Jurisdiction of 76. If the defendant intends to dispute party or his registered attorney.
court to be the averment in the plaint as to the
specially
traversed. jurisdiction of the court, he must do so by a CHAPTER XI
separate and distinct plea, expressly
traversing such averment. OF FIXING DAY OF TRIAL

Rejection and 77. If any answer is substantially 8O. (1) Forthwith on the expiration of Day of trial.
amendment of defective in any of the particulars the time allowed for the filing of the [20, Law 20 of
answer.
hereinbefore defined, or is argumentative or defendant's answer, or, where a replication 1977]
prolix, or contains matter irrelevant to the is permitted, on the last day of the time
action, the court may, by an order to be allowed for filing such replication, and
endorsed thereon, reject the same or return whether the same is filed or not, the court
it to the party by whom it was made, for shall appoint a day for the case to be called
amendment within a time to be fixed by the in order to fix the day of trial of the action
court, imposing such terms as to costs or and shall give notice thereof in writing by
otherwise as the court thinks fit. registered post to all parties who have
furnished a registered address and tendered
If the answer is rejected or left the cost of service of such notice as provided
unamended as ordered, the defendant shall by subsection (2) of section 55.
be regarded as having failed to file answer.
(2) On the appointed day under
subsection (1) of this section or where it
The order so endorsed shall specify the appears to the court that the case is not
ground of the rejection. ready for trial, on any later day to which the
1 matter shall on that day have been
Copy of 78. A copy of the answer shall be served postponed, the court shall fix the day of
answer to be on the plaintiff, or each of the plaintiffs, if trial in open court.
delivered to
plaintiff or his more than one, or his or their registered
registered attorney. (3) The court may subsequently on
attorney. application made by either party and after
[18, Law 20 of
1977.] hearing both parties, or after proof of notice

V/83
Cap.105] CIVIL PROCEDURE CODE

of motion to the absent party, direct that the action, and if the court is satisfied that
the day for the hearing of any case shall be the defendant has been duly served with
advanced or deferred. summons, or has received due notice of the
day fixed for the subsequent filing of the
A reasonable 81. The court shall, in fixing the day of answer, or of the day fixed for the hearing
number of hearing, be careful not to appoint more of the action, as the case may be, and if, on
cases to be the occasion of such default of the
fixed for each cases for one day than there is a probability
day. of the court getting through on that day. defendant, the plaintiff appears, then the
court shall proceed to hear the case ex pane
forthwith, or on such other day as the court
Postponement. 82. When any case is in its turn called may fix.
on for hearing upon the day appointed
therefor, the court may, for sufficient cause
to be specified in its written order, direct
that the hearing be postponed to a day 85 . (1) The plaintiff may place procedure in
which shall be fixed in the order, upon suchevidence before the court in support of his ex parte troal
terms as to costs or otherwise as the court claim by affidavit, or by oral testimony and [23, Law 20 of
move for judgment, and the court, if 1977]
shall think fit;
satisfied that the plaintiff is entitled to the
relief claimed by him, either in its entirety or
Provided that the court may in its subject to modification, may enter such
discretion take and deal with a case out of judgment in favour of the plaintiff as to it
its order in the cause list on any day for shall seem proper, and enter decree
good reason to be adjudicated upon and accordingly.
recorded by the court before entering upon
the case.
(2) Where the court is of opinion that
Undisposed of 83. (1) The cases in any day's cause list the entirety of the relief claimed by the
cases to be not disposed of on that day, by reason of plaintiff cannot be granted, the court shall
placed at the
head of the want of time, will be placed at the head of hear the plaintiff before modifying the relief
roll. the next court-day's cause list, unless the claimed.
Judge directs otherwise.

[21, Law 20 of (2) As soon as the cause list for any day (3) Where there are several defendants
1977.] is prepared, legibly-written copies of it in of whom one or more file answer and
the language of the court and the language another or others of whom fail to file
or languages of the parties shall be placed in answer, the plaintiff may move for judgment
some fit and conspicuous place outside the against such of the defendants as may be in
court-house, so that the suitors and all default without prejudice to his right to
others interested may be enabled readily to proceed with the action against such of the
be informed of the contents of the same. defendants as may have filed answer. The
provisions of this subsection shall apply
notwithstanding that the defendants are
CHAPTER XII jointly liable upon a bill of exchange,
promissory note or cheque.
[ 22, Law 20 OF THE CONSEQUENCES AND CURE (WHEN
of 1977.] PERMISSIBLE) OF DEFAULT IN PLEADING
OR APPEARING (4) The court shall cause a copy of the
decree entered under this section to be
served on the defendant in the manner
Default of 84. If the defendant fails to file his prescribed for the service of summons. Such
defendant. answer on or before the day fixed for the copy of the decree shall bear an
[23, Law 20 of
1977.] filing of the answer, or on or before the day endorsement that any application to set
fixed for the subsequent filing of the answer aside the decree under subsection (2) of
or having filed his answer, if he fails to section 86 shall be made to court within
appear on the day fixed (or the hearing of fourteen days of such service.

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CIVIL PROCEDURE CODE [Cap.105

If defendant 86.* (2) Where, within fourteen days 88. (1) No appeal shall lie against any No appeal
excuses his of the service of the decree entered against judgment entered upon default. against
default, any Judgment for
order or him for default, the defendant with notice to default but
judgment to be the plaintiff makes application to and (2) The order setting aside or refusing to order setting
set aside. thereafter satisfies court, that he had aside or
[23, Law 20 of set aside the judgment entered upon default refusing to set
1977.] reasonable grounds for such default, the shall be accompanied by a judgment aside judgment
court shall set aside the judgment and adjudicating upon the facts and specifying appealable.
decree and permit the defendant to proceed [23, Law 20 of
the grounds upon which it is made, and 1977.]
with his defence as from the stage of default shall be liable to an appeal to the Court of
upon such terms as to costs or otherwise as Appeal.
to the court shall appear proper.
(3) The provisions of sections 761 and [4,53 of 1980.]
[3,53 of (2A) At any time prior to the entering of 763 shall, mutatis mutandis, apply to and in
1980.] judgment against a defendant for default, relation to the execution of a decree entered
the court may, if the plaintiff consents, but upon default, where an order refusing to set .
not otherwise, set aside any order made on aside such decree has been made.
the basis of the default of the defendant and
permit him to proceed with his defence as 89. In the case of an action against two Where two or
from the stage of default upon such terms as or more defendants alleged to be severally more
defendants
to costs or otherwise as to the court shall liable, where a summons is served upon any severally liable.
appear fit. of them, the plaintiff may proceed against
the person or persons served as if no other
(3) Every application under this section defendant were named in the summons.
shall be made by petition supported by Where it is served upon all of them, the
affidavit. plaintiff may take judgment against one or
more of them, where he would be entitled to
judgment if the action was against him or
Non- 87. (1) Where the plaintiff or where them alone. Where judgment is so taken the
appearance of both the plaintiff and the defendant make plaintiff may proceed in the same action
plaintiff.
[23, Law 20 of default in appearing on the day fixed for the against the other defendants.
1977.] trial, the court shall dismiss the plaintiffs
action. 90. In the case of an action where there One of many
are more defendants than one, the court defendants
appearing, no
shall not be obliged to pass a decree for decree for
(2) Where an action has been dismissed default against a defendant for failing to default need be
under this section, the plaintiff shall be appear at a stage of the action, provided passed against
precluded from bringing a fresh action in that one defendant at least appears at that
others.
respect of the same cause of action. stage against whom the action must
proceed,
(3) The plaintiff may apply within a
reasonable time from the date of dismissal,
CHAPTER XIII
by way of petition supported by affidavit, to
have the dismissal set aside, and if on the
hearing of such application, of which the OF MOTIONS
defendant shall be given notice, the court is
satisfied that there were reasonable grounds 91. Every application made to the court Motions
for the non-appearance of the plaintiff, the in the course of an action, incidental [23, Law 20 o
court shall make order setting aside the * thereto, and not a step in the regular 1977.]
dismissal upon such terms as to costs or procedure, shall be made by motion by the
otherwise as it thinks fit, and shall appoint a applicant in person or his counsel or
day for proceeding with the action as from registered attorney, and a memorandum in
the stage at which the dismissal for default writing of such motion shall be at the same
was made. time delivered to the court.

Subsection (I) is repealed by Act No. 53 of 1980.


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Postponements, 91A. (1) Where a day is fixed or time otherwise, as it may think fit, all pleadings
adjournments appointed for doing any act or taking any and processes in the action, by way of
and extensions
of time. proceeding by a party to the action, the addition, or of alteration, or of omission.
[25, Law 20 of court may, from time to time, upon the And the amendments or additions shall be
1977.] motion of such party and, if sufficient cause clearly written on the face of the pleading or
is shown, fix another day or enlarge or process affected by the order; or if this
abridge the time appointed, upon such cannot conveniently be done, a fair draft of
terms, if any, as to it may seem proper. the document as altered shall be appended
to the document intended to be amended,
(2) The day may be refixed or the time and every such amendment or alteration
enlarged although the application for the shall be initialled by the Judge.
same is not made until after the expiration
of the day or time fixed or appointed. CHAPTER XVI

(3) The court may, for sufficient cause, OF DISCOVERY, INSPECTION, PRODUCTION,
either on the application of the parties or of IMPOUNDING, AND RETURN OF
its own motion, advance, postpone or DOCUMENTS
adjourn the trial to any other date upon
such terms as to costs or otherwise as to it 94. (1) Any party may at any time Interrogatories.
shall seem proper. before hearing, by leave of the court to be
obtained on motion ex parte, deliver
(4) Where a date is fixed on or before through the court interrogatories in writing
which an act has to be done by a party to for the examination of the opposite party,
the action or a return has to be made to a or, where there are more opposite parties
commission issued by the court, the case than one, any one or more of such parties,
shall be called in open court on such date with a note at the foot thereof stating which
for the purpose of making an appropriate of such interrogatories each of such persons
order in connection therewith or relating is required to answer:
thereto.
Provided that no party shall deliver more
than one set of interrogatories to the same
CHAPTER XIV
person without the permission of the court,
and that no defendant shall deliver
OF THE JOURNAL
interrogatories for the examination of the
plaintiff unless such defendant has
Journal. 92. With the institution of the action the
previously tendered his answer, and such
court shall commence a journal entitled as
answer has been received and placed on the
of the action, in which shall be minuted, as
record.
they occur, all the events in the course of the
action, i.e., the original application, and (2) For the purposes of this Chapter,
every subsequent step, proceeding, and " opposite party ", means a party between
order; each minute shall be signed and whom and the party interrogating an issue
dated by the Judge, and the journal so kept has been raised.
shall be the principal record of the action.
95. Interrogatories delivered under the Service of
CHAPTER XV last section shall be served on the registered interrogatories.
attorney (if any) of the party interrogated,
OF AMENDMENT or in the manner hereinbefore provided for
the service of summons, and the provisions
Amendments 93. At any hearing of the action, or any herein contained with regard to service of
of pleadings. time in the presence of, or after reasonable summons shall, in the latter case, apply, so
notice to, all the parties to the action before far as may be practicable.
final judgment, the court shall have full
power of amending in its discretion, and 96. The court, in adjusting the costs of Cost of
upon such terms as to costs and the action, shall at the instance of any party, unreasonable
interrogatories
postponement of day for filing answer or inquire, or cause inquiry to be made, into to be borne by
replication or for hearing of cause, or t h e p r o p r i e t y of d e l i v e r i n g such party in fault.

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CIVIL PROCEDURE CODE [Cap.105
interrogatories; and if it thinks that such just exceptions to the admissibility of such
interrogatories have been delivered document in evidence) the genuineness of
unreasonably, vexatiously, or at improper any document material to the action.
length, the costs occasioned by the said
interrogatories, and the answers thereto, (2) The admission shall also be made in
shall be borne by the party in fault. writing, signed by the other party or his
registered attorney, and filed in court.
Interrogatories 97. If any party to an action is a body
to company, corporate or a company, whether (3) If such notice be not given, no costs
&c.
incorporated or not, or any other body of of proving such document shall be allowed,
persons empowered by law to sue or be unless the court otherwise orders.
sued, whether in its own name or in the
name of any officer or other person, any (4) If such notice is not complied with
opposite party may apply to the court for an within four days after its being served, and
order allowing him to deliver interrogatories the court thinks it reasonable that the
to any member or officer of such admission should have been made, the party
corporation, company, or body, and an refusing shall bear the expense of proving
order may be made accordingly. such document, whatever may be the result
of the action.
When party 98. Any party called upon to answer
may refuse to interrogatories, whether by himself or by
answer. 102. (1) The court may, at any time Order for
any such member or officer, may refuse to during the pendency therein of any action, discovery of
answer any interrogatory on the ground that documents.
order any party to the action to declare by
it is scandalous or irrelevant, or is not put affidavit all the documents which are or
bona fide for the purposes of the action, or have been in his possession or power
that the answer will tend to criminate relating to any matter in question in the
himself, or that the matter inquired after is action, and any party to the action may, at
not sufficiently material at that stage of the any time before the hearing, apply to the
action, or on any other like ground. court for a like order.
To be 99. Interrogatories shall be answered by
answered by (2) Every affidavit made under this
affidavit to be filed in court within ten days
affidavit. section shall specify which, if any, of the
from the service thereof, or within such
documents therein mentioned the declarant
further time as the court may allow.
objects to produce, together with the
grounds of such objection.
Application for 100. If any person interrogated omits or
further answer. refuses to answer or answers insufficiently
any interrogatory, the party interrogating 103. The court may, at any time during Order for
may apply to the court for an order the pendency therein of any action, order production of
,, , ,. , . . , ,- , documents.
requiring him to answer or to answer the production by any party thereto of such
further, as the case may be. And an order of the documents in his possession or power
may be made requiring him to answer or to relating to any matter in question in such
answer further, either by an affidavit or by action or proceeding as the court thinks
viva voce examination, as the court may right; and the court may deal with such
direct: documents when produced in such manner
as appears just.
Provided that the court shall not require
an answer to an interrogatory which in its 103A. (1) In any action to which the State required
State is a party, the State may also be to make
opinion need not have been answered under discovery or
section 98. required to make discovery or give give inspection
inspection of documents. of documents
Notice to 101. (1) Either party may, by a notice under certain
circumstances.
admit issued by order of court, to be obtained on (2) The provisions of subsection (1) shall [26, Law 20 of
genuineness of . ... , , 1977.]
documents motion ex parte within a reasonable time not prejudice the right of the State to
not less than ten days before the hearing, withhold any document on the ground that
require the other party to admit (saving ail in the opinion of the Minister in charge of

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the subject to which the document relates, (c) that they are in the possession or
the public interest would suffer by such power of the party against whom
disclosure. the application is made.

Notice to 104. (1) Any party to an action may, 108. If the party from whom discovery Court may
produce at any time before or at the hearing thereof, of any kind or inspection is sought objects reserve
documents for question as to
inspection. by motion ex parte, obtain an order of court to the same or any part thereof, and if the discovery or
for notice to issue to any other party in court is satisfied that the right of such inspection.
whose pleadings or affidavits reference is discovery or inspection depends on the
made to any document, to produce such determination of any issue or question in
document for the inspection of the party dispute in the action, or that for any other
giving such notice, or of his registered reason it is desirable that any such issue or
attorney, and to permit such party or question should be determined before
registered attorney to take copies thereof. deciding upon the right to the discovery or
inspection, the court may order that the
(2) No party failing to comply with such issue or question be determined first, and
notice shall afterwards be at liberty to put reserve the question as to the discovery or
any such document in evidence on his behalf inspection.
in such action, unless he satisfies the court
that such document relates only to his own 109. (1) If any party fails to comply Consequence
title, or that he had some other and with any order under this Chapter to answer of not
complying with
sufficient cause for not complying with such interrogatories, or for discovery, order under
notice. production, or inspection, which has been this Chapter.
duly served, he shall, if a plaintiff, be liable
Time and place 105. The party to whom such notice is to have his action dismissed for want of
of such given shall, within ten days from the receipt prosecution, and if a defendant, to have his
production to
be specified by thereof, deliver through the court to the defence, if any, struck out, and to be placed
party receiving party giving the same a notice stating a time in the same position as if he had not
notice. within three days from such delivery at appeared and answered.
which the documents, or such of them as he
does not object to produce, may be And the party interrogating or seeking
inspected at his registered attorney's office discovery, production, or inspection may
or some other convenient place, and stating apply to the court for an order to this effect,
which, if any, of the documents he objects and the court may make such order
to produce, and on what grounds. accordingly.

Otherwise, 106. If any party served with notice (2) Any party failing to comply with any
order for under section 104 omits to give notice under order under this Chapter to answer
inspection to
be made by section 105 of the time for inspection, or interrogatories, or for discovery,
court. objects to give inspection, or names an production, or inspection which has been
inconvenient place for inspection, the party served personally upon him, shall also be
desiring it may apply to the court for an deemed guilty of the offence of contempt of
order of inspection. court.

Application for 107. Except In the case of documents 110. (1) The court may of its own Court may
order to be referred to in any pleading or affidavit of accord, or in its discretion upon the inspect records
supported by of other courts.
affidavit. the party against whom the application is application of any of the parties to an
made, or disclosed in his affidavit of action, send for, either from its own records
documents, such application shall be or from any other court, the record of any
founded upon an affidavit showing 'other action or proceeding, and inspect the
same.
(a) of what documents inspection is
sought, (2) Every application made under this
section shall (unless the court otherwise
(b) that the party applying is entitled to directs) be supported by an affidavit of the
inspect them, and applicant or his registered attorney, showing

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CIVIL PROCEDURE CODE [Cap.105
how the record is material to the action in (2) Every document so proved or Proved
which the application is made, and that the admitted shall be endorsed with some documents to
be marked and
applicant cannot, without unreasonable number or letter sutticient to identity it. 1 he filed.
delay or expense, obtain a duly Judge shall then make an entry on the
authenticated copy of the record or of such record to the effect that such document was
portion thereof as the applicant requires, or proved against or admitted by (as the case
that the production of- the original is may be) the person against whom it is used,
necessary for the purposes of justice. and shall in such entry refer to such
document by such number or letter in such
(3) Nothing in this section shall be a way as to identify it with the document so
deemed to enable the court to use in proved or admitted. The document shall
evidence any document which by the law of then be filed as part of the record.
evidence in force in Sri Lanka would be
inadmissible in the action. (3) All documents produced at the Documents
hearing and not so proved or admitted shall which are not
Parties to he 111. The parties or their registered proved to be
be returned to the parties respectively returned to
ready with all attorneys shall bring with them and have in
documents at
producing them. parties.
trial. readiness at the hearing of the action, to be
produced when called for by the court, all
the documentary evidence of every 115. N o t w i t h s t a n d i n g a n y t h i n g Court may
contained in section 114, the court may, if it order any
description in their possession or power, on document to be
which they intend to rely, and which has not sees sufficient cause, direct any document or impounded.
already been filed in court, and all book produced before it in any action to be
documents which the court at any time impounded and kept in the custody of an
before such hearing has ordered to be officer of the court for such period and
produced. subject to such conditions as the court
thinks fit.
Document 112. No documentary evidence in the
called for and possession or power of any party which 116. (1) When an action has been When
not produced document
shall not be should have been, but has not been, disposed of, or when the time for preferring
admitted in
received produced in accordance with the an appeal from the decree has elapsed, or if evidence may
afterwards. requirements of section 111, shall be an appeal has been preferred, then after the be returned.
received at any subsequent stage of the appeal has been disposed of, any person,
proceedings, unless good cause be shown to whether a party to the action or not,
the satisfaction of the court for the non- desirous of receiving back any document
production thereof. And the court on produced by him in the action, and placed
receiving any such evidence shall record its on the record, shall, unless the document is
reason for so doing. impounded under section 115, be entitled to
receive back the same:
Documents to 113. (1) The court shall receive the
be received by documents respectively produced by the
court. Provided that a document may be
parties at the hearing, provided that the returned at any time if the person applying
documents produced by each party be for such return deliver to the proper officer
accompanied by an accurate list thereof. a certified copy of such document to be
substituted for the original;
Rejection of (2) The court may at any stage of the
irrelevant or action reject any document which it
inadmissible And provided further, that no document Certain
documents. considers irrelevant or otherwise
inadmissible, recording the grounds of such shall be returned which by force of the documents not
to be returned.
rejection. decree has become void or useless.

No documents 114. (1) No document shall be placed (2) On the return of a document which Receipt for
to be placed on on the record unless it has been proved or has been admitted in evidence, a receipt returned
record unless documents.
proved. admitted in accordance with the law of shall be given by the party receiving it, in a
evidence for the time being in force. receipt book to be kept for the purpose.

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Provisions as 117. The provisions herein contained as (a) a list of witnesses to be called by
to documents to documents shall, so far as may be, apply such party at the trial, and
apply to other
material to all other material objects producible as
objects. evidence. (b) a list of the documents relied upon
by such party and to be produced at
TRANSLATIONS OF DOCUMENTS the trial,
Translations of 118. No translation of any document 122. The party applying for a summons Payment
documents, tendered in evidence in any court shall be shall, before the summons is granted, and witness's
permitted to be read as a translation of such expenses
within a period to be fixed by the court, pay
document, unless the same shall be signed into court, or give security for payment of,
by an interpreter of the Supreme Court, or such a sum of money as appears to the court
the Court of Appeal, or by a Government to be sufficient to defray the travelling and
sworn translator, or by a sworn translator other expenses of the person summoned, in
or interpreter of some District Court, passing to and from the court in which he is
Family Court or Primary Court. required to attend, and for one day's
attendance:
Who shall be 119. No person other than an interpreter
deemed a of the Supreme Court, or the Court of
translator. Provided that in the case of a witness
Appeal, or a Government sworn translator,
residing within four miles of the court at
or an interpreter of a District Court, or
which his attendance is required, no such
Family Court or Primary Court, shall be
payment shall be made nor security given;
deemed to be a translator of any court
unless he shall have received a certificate
from the Judge of such court that he is And provided further that the making of
competent to fulfil the duties of a translator, any such payment and the giving of any
and shall have taken an oath before such such security shall in no case be a condition
Judge faithfully to perform the duties of his precedent to the issue of a summons, but in
office. every case (except the case of a witness
residing within four miles from the court)
Fees of 120. No such translator as aforesaid where summons issues without such
translators. shall be entitled to have or recover in payment having been made or security
respect of fees for any translation any sum given, the witness shall be informed on the
of money in excess of the following rates, face of the summons that such is the case,
namely,: and that it is not obligatory on him to
attend.
[27, Law 20 of For every folio of 120 words .. Rs. 1. 25
1977.] For every fractional part of a folio .. Rs. 1 .25 123. The sum so paid into court, or so Witness's
secured, shall at least be paid or tendered to expenses to be
paid before he
CHAPTER XVII the person summoned at the time when he is gives evidence
called on to give his evidence, if he demands
[28, Law 20 of OF WITNESSES AND DOCUMENTS the same.
1977.]
Summonses to 121. (1) The parties may, after the
witnesses. summons has been delivered for service on 124. If it appears to the court or to such Court may
the defendant, obtain, on application to the officer as it appoints in this behalf that the order a
sufficient sum
court or to such officer as the court sum paid into court is not sufficient to cover to be paid.
appoints in that behalf, before the day fixed such expenses, the court may direct such
for the hearing, summonses to persons further sum to be paid to the person
whose attendance is required either to give summoned as appears to be necessary on
evidence or to produce documents. that account; and in case of default in
payment, may, by writ issued to the Fiscal,
Lists of (2) Every party to an action shall, not order such sum to be levied by sequestration
witnesses and less than fifteen days before the date fixed and sale of the movable property of the
documents.
[29, Law 20 of for the trial of an action, file or cause to be party obtaining the summons as is
I977.J filed in court after notice to the opposite hereinafter provided; or the court may
party discharge the person summoned without

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CIVIL PROCEDURE CODE [Cap.105
requiring him to give evidence ; or may both summons on the defendant; and the rules
order such levy and discharge such person contained in this Ordinance as to proof of
as aforesaid. service of summons on the defendant shall
apply in case of all summonses served under
Expenses of 125. If it is necessary to detain the this section.
detention. person summoned for a longer period than
one day, the court may from time to time 130. The service shall in all cases be Service must
order the party at whose instance he was made a sufficient time before the time afford
reasonable
summoned to pay into court such sum as is specified in the summons for the attendance time for
sufficient to defray the expenses of his of the person summoned, to allow him a attendance.
detention for such further period; and in reasonable time for preparation and for
default of such deposit being made, may, by travelling to the place at which his
writ issued to the Fiscal, order such sum to attendance is required.
be levied by sequestration and sale of the
movable property of the party at whose 131. (1) If the Fiscal returns to the Procedure to
instance he was summoned ; or the court court that the summons for the attendance be followed
when summons
may discharge the person summoned of a person, either to give evidence or to cannot be
without requiring him to give evidence; or produce a document, cannot be served, the served.
may both order such levy and discharge court may take evidence touching the
such person as aforesaid. non-service.

Summons to 126. (1) Every summons for the And upon being satisfied that such
specify time, attendance of a person to give evidence or evidence or production is material, and that
place, and
purpose of produce a document shall specify the time the person for whose attendance the
attendance. and place at which he is required to attend summons has been issued is absconding, or
and also whether his attendance is required keeping out of the way for the purpose of
for the purpose of giving evidence or to avoiding the service of summons, the court
produce a document, or for both purposes; may in its discretion either issue a warrant
and any particular document which the for the apprehension of such witness or may
person summoned is called on to produce issue a proclamation requiring him to attend
shall be described in the summons with to give evidence, or produce the document,
reasonable accuracy. at a time and place to be named therein;
and a copy of such proclamation shall be
(2) If money has been deposited or affixed on the outer door of the house in
security given for his expenses under the which he ordinarily resides.
provisions of section 122, the summons shall
contain a statement to that effect. (2) If he does not attend at the time and Proclaimed
place named in such proclamation, the court witness how
dealt with.
Summons to 127. Any person may be summoned to may in its discretion, at the instance of the
produce produce a document without being party on whose application the summons
document.
summoned to give evidence; and any person was issued make an order for the
summoned merely to produce a document sequestration of the property of the person
shall be deemed to have complied with the whose attendance is required, to such
summons if he cause such document to be amount as the court thinks fit, not
produced, instead of attending personally to exceeding the amount of the costs of
produce the same. sequestration and of the fine which may be
imposed under section 133.
Person in court 128. Any person present in court may be
may be required by the court to give evidence, or to 132. If, on the sequestration of his If witness
required to appears,
produce a produce any document then and there in his 'property, such person appears and satisfies
sequestration
document. actual possession or power. the court that he did not abscond or keep may be
out of the way to avoid service of the withdrawn.
Service of 129. Every summons to a person to give summons, and that he had not notice of the
summons. evidence or produce a document shall be proclamation in time to attend at the time
served as nearly as may be in the manner and place named therein, the court shall
hereinbefore prescribed for the service of direct that the property be released from

V/91
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sequestration, and shall make such order as (b) he has obtained the court's leave to
to the costs of the sequestration as it thinks depart.
fit.
137. (I) If any person on whom a Witness may
Procedure 133. If such person does not appear, or summons to give evidence or produce a be arrested
when witness for non-
appearing, fails to satisfy the court that he document has been served fails to comply compliance
fails to appear.
did not abscond or keep out of the way to with the summons, or if any person so with summons.
avoid service of the summons, and that he summoned and attending departs in
had not notice of the proclamation in time contravention of section 136, the court may
to attend at the time and place named order him to be arrested and brought before
therein, the court may impose upon him the court:
such fine, in the case of the Primary Court
not exceeding fifty rupees, and in the case of Provided that no such order shall be
the District Court not exceeding two made when the court has reason to believe
hundred rupees, as the court thinks fit, that the person so failing had a lawful
having regard to his condition in life and all excuse for such failure.
the circumstances of the case; and may
(2) When any person so brought before Non-compli-
order the property sequestered, or any part ance with
the court fails to satisfy it that he had a
thereof, to be sold for the purpose of summons
lawful excuse for not complying with the without lawful
satisfying all costs incurred in consequence
summons, he shall be deemed to be guilty of excuse deemed
of such sequestration, together with the to be contempt
the offence of contempt of court, and
amount of the said fine, if any: of court.
punishable therefor.
Provided that if the person whose 138. If any person so apprehended and Court may
attendance is required pays into court the brought before the court cannot, owing to release arrested
costs and the fine as aforesaid, the court witness on bail.
the absence of the parties or any of them
shall order the property to be released from give the evidence or produce the document
sequestration. which he has been summoned to give or
produce, the court may require him to give
Court may 134. Subject to the rules of this
summon and reasonable bail or other security for his
Ordinance as to attendance and appearance,
examine any appearance at such time and place as it
person as if the court at any time thinks it necessary to
thinks fit, and on such bail or security being
witness. examine any person other than a party to
given may release him.
the action, and not named as a witness by a
party to the action, the court may, of its 139. If any person so failing to comply Procedure
own motion, cause such person to be with a summons absconds or keeps out of when witness
summoned as a witness to give evidence, or absconds.
the way, so that he cannot be apprehended
to produce any document in his possession, and brought before the court, the provisions
on a day to be appointed ; and may examine of sections 131, 132, and 133 shall, mutatis
him as a witness, or require him to produce mutandis, apply.
such document.
140. If any party to an action being Court may
Person 135. Subject as last aforesaid, whoever present in court refuses, without lawful pass decree
summoned against party
is summoned to appear and give evidence in excuse, when required by the court, to give refusing to give
must attend at
time and place an action must attend at the time and place evidence, or to produce any document then evidence.
named in the named in the summons for that purpose, and there in his actual possession or power,
summons. and whoever is summoned to produce a the court may in its discretion either pass a
document must either attend to produce it, decree against him, or make such other
or cause it to be produced, at such time and order in relation to the action as the court
place. thinks fit, or may punish him as for a
contempt of court.
When witness 136. No person so summoned and
may depart. attending shall depart unless and until 141. (1) Whenever any party to an Rules as to
action is required to give evidence or witnesses to
apply to a party
(a) he has been examined or has produce a document, the rules as to summoned to
produced the document and the witnesses contained in this Ordinance shall give evidence.
court has risen; or apply to him, so far as they are applicable.

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CIVIL PROCEDURE CODE [Cap.105
(2) Nothing in this Chapter contained CHAPTER XIX
shall be deemed in any way to contravene or
affect the provisions of the Proof of Public
OF THE TRIAL
Documents Ordinance except in so far as
the same may be hereby expressly repealed
or modified. 146. (1) On the day fixed for the Determining of
hearing of the action, or on any other day to lssues-
Privilege from 142. Any person duly and in good faith which the hearing is adjourned, if the parties
arrest of summoned or ordered to attend for the are agreed as to the question of fact or of
witness. law to be decided between them, they may
purpose of being examined in a case is
privileged from arrest in a civil action or state the same in the form of an issue, and
special proceeding while going to, the court shall proceed to determine the
remaining at, and returning from the place same.
where he is required to attend.
(2) If the parties, however, are not so
CHAPTER XVIII agreed, the court shall, upon the allegations
made in the plaint, or in answer to
OF ADJOURNMENTS interrogatories delivered in the action, or
upon the contents of documents produced
Adjournments. 143. (1) The court may, if sufficient by either party, and after such examination
cause be shown, at any stage of the action of the parties as may appear necessary,
grant time to the parties, or to any of them, ascertain upon what material propositions
and may from time to time adjourn the of fact or of law the parties are at variance,
hearing of the action. and shall thereupon proceed to record the
issues on which the right decision of the case
(2) In all such cases the court shall fix a appears to the court to depend.
day for the further hearing of the action,
and may make such order as it thinks fit (3) Nothing in this section requires the
with respect to the costs occasioned by the court to frame and record issues when the
adjournment: defendant makes no defence.

Provided that, when the hearing of


147. When issues both of law and of fact Trial of issues
evidence has once begun, the hearing of the
arise in the same action, and the court is of of law first
action shall be continued from day to day
opinion that the case may be disposed of on
until all the witnesses in attendance have
the issues of law only, it shall try those
been examined, unless the court finds the
issues first, and for that purpose may, if it
adjournment of the hearing to be necessary
thinks fit, postpone the settlement of the .
for reasons to be recorded and signed by the
issues of fact until after the issue of law have
Judge.
been determined.
Non-appear- 144. If on any day to which the hearing
ance of a of the action is adjourned, the parties or any 148. If the court is of opinion that the Adjournment
party on the issues cannot be correctly framed without for evidence.
adjourned day. of them fail to appear, the court may
proceed to dispose of the action in one of the examination of some person not before
the modes directed in that behalf by the court, or without the inspection of some
Chapter XII, or make such other order as it document not produced in the action, it
thinks fit. may adjourn the framing of the issue to a
future day to be fixed by the court, and may
Default of 145. If any party to an action, to whom compel the attendance of such person or the
parly to carry time has been granted, fails to produce his production of such document by summons
out purpose of or other process.
adjournment. evidence, or to cause the attendance of his
witnesses, or to perform any other act
necessary to the further progress of the 149. The court may, at any time before Amendment of
action, for which time has been allowed, the passing a decree, amend the issues or frame lssues-
court may, notwithstanding such default, additional issues on such terms as it thinks
proceed to decide the action forthwith. fit.

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Party having 150. The party having the right to begin 153. Then shall follow re-examination Re-
right to begin shall state his case, giving the substance of by the first side if required, for the purpose examination.
to state his
the facts which he proposes to establish by of enabling the witness to explain such
his evidence. answers given by him on cross-examination
as may have left facts imperfectly stated by
Rules as to Explanation 1.The plaintiff has the right to begin him, and to add such further facts as may
right to begin. unless where the defendant admits the facts have been suggested and made admissible
alleged by the plaintiff, and contends that by the cross-examination.
either in point of law or on some additional
facts alleged by the defendant the plaintiff is
not entitled to any part of the relief which he Explanation.During the course of the
seeks, in which case the defendant has the examination, cross-examination, and re-
right to begin. examination, the court ought not, as a
general rule, to interfere, except when
Explanation 2. The case enunciated must necessary for the purpose of causing
reasonably accord with the party's pleading, questions to be put in a clear and proper
i.e., plaint or answer, as the case may be. shape, of checking improper questions and
And no party can be allowed to make at the of making the witness give precise answers.
trial a case materially different from that At the end of it, however, if it has been
which he has placed on record, and which reasonably well conducted, the court ought
his opponent is prepared to meet. And the to know fairly the position of the witness
facts proposed to be established must in the with regard to the material facts of the case,
whole amount to so much of the material and it should then put such questions to the
part of his case as is not admitted in his witness as it may consider necessary to
opponent's pleadings. possess itself of all the detailed relevant facts
to which the witness can speak from
Party having 151. After stating his case in person, or personal observation, or which bear upon his
right to begin by his registered attorney or counsel, the trustworthiness.
to produce his
evidence. same party shall produce his evidence,
calling his witnesses and by questions 154. (I) Every document or writing Tender of
which a party intends to use as evidence documents
eliciting from each of them the relevant and in evidence.
material facts to which such witness can against his opponent must be formally
speak of his own observation. tendered by him in the course of proving his
case at the time when its contents or purport
Explanation.The questions should be simple, and
are first immediately spoken to by a witness.
so framed as to obtain from ihe witnesses, as If it is an original document already filed in
nearly as may be in a chronological order, a the record of some action, or the deposition
narrative of all the facts relevant to the of a witness made therein, it must previously
matter in issue between the parties which he be procured from that record by means of,
has witnessedi.e., which he has in any
manner directly observed or perceived, and and under an order from, the court. If it is a
no others. And on any disputed point the portion of the pleadings, or a decree or
questions should not be such as to lead, or order of court made in another action, it
suggest, the answer; nor such as to induce a shall not generally be removed therefrom,
witness, other than an expert, to state a but a certified copy thereof shall be used in
conclusion of his reasoning, an inference of
fact, or a matter of belief, in the place of evidence instead.
describing what he actually observed.

Also, a general request to a witness to tell what he (2) It shall not be competent to the court Records of
knows, or to state the facts of the case, is, as to admit in evidence the entire body of other actions
a rule, not to be permitted, because it gives not to be
an opening for a prepared story.
proceedings and papers of another action admitted in
indiscriminately. Each of the constituent bulk.
Nothing in this explanation operates to prevent a documents, pleadings, or processes of the
witness from stating hearsay, or giving any former action, which may be required in the
opinion, where the hearsay or opinion is a
relevant fact in the case.
pending action, must be dealt with
separately as above directed.
Cross- 152. After the examination-in-chief by
examination. the party who called the witness, the cross- (3) The document or writing being Documents
examination of the same witness, if admitted in evidence, the court, after admitted to
be read aloud
required, shall in like manner be effected by marking it with a distinguishing mark or in court.
the opposite side, only that in this case letter by which it should, when necessary, be
leading questions may be put. ever after referred to throughout the trial,

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CIVIL PROCEDURE CODE [Cap. 105
shall cause it, or so much of it as the parties 156. The questioning for this purpose Cross-
may desire, to be read aloud. should be effected by the party who is examination
seeking to prove the document; and the knowledge
Explanation.If the opposing party does not, on the opposing party, if he desires to do so,
document being tendered in evidence, object should be allowed to interpose with cross-
to its being received, and if the document is examination on this point before the
not such as is forbidden by law to be
received in evidence, the court should admit
document is shown to the witness.
it.
If, however, on the document being tendered the 157. It is the duty of the court, in the Court to see
opposing party objects to its being admitted event of a witness professing to be able to witness thus
in evidence, then commonly two questions tested.
recognize or identify writing, always to take
arise for the court :
care that his capacity to do so is thus tested,
Firstly, whether the document is authenticin unless the opposite party admits it.
other words, is what the party
tendering it represents it to be; and 158. If on the examination effected for And to decide
this purpose it appears to the court that the on his
Secondly, whether, supposing it to be authentic, , i - r competency.
it constitutes legally admissible
witness was not in tact present at the time 01
evidence as against the party who is signing, or is not reasonably competent to
sought to be affected by it. identify the handwriting, then the court
shall not permit him to give his testimony
The latter question in general is matter of on the matter of the signature.
argument only, but the first must be
supported by such testimony as the
party can adduce. If the court is of 159. (I) The signature of a person, Signature by
opinion that the testimony adduced which purports or which appears by the a mark how
for this purpose, developed and tested evidence to have been written by the pen of proved
by cross-examination, makes out a
prima facie case of authenticity and is
another, is not proved until both the fact of
further of opinion that the authentic the writing and the authority of the writer to
document is evidence admissible write the name on the document as a
against the opposing party, then it signature is proved.
should admit the document as before.

If, however, the court is satisfied that either of


(2) Subsection (1) applies to the case
those questions must be answered in where the signature is a ma'rk explained by
the negative, then it should refuse to the name written adjacent thereto.
admit the document.

Whether the document is admitted or not it 160. In the case of an illiterate person, Proof in the
who cannot read, it must also be proved case of an
should be marked as soon as any illiterate
witness makes a statement with that at the time when his name was written person.
regard to it; and if not earlier marked on, or his mark put to, the document, he
on this account, it must, at least, be understood the contents of it:
marked when the court decides upon
admitting it.
Provided that where the name of such
Procedure to 155. Before a witness is allowed to, in illiterate person shall have been written on,
be followed any way, identify a document, he should or his mark put to, any document for the
before witness
is asked to generally be made, by proper questioning, purpose merely of attesting the signature of
identify to state the grounds of his knowledge with another, it shall not be necessary to prove
document. regard to it. that he understood the contents of such
document, but it shall be sufficient to prove
Illustration that he was aware of the purpose for which
ftis name was so written or his mark so put,
If the witness is about to speak to the act, or factum, and that the person whose signature he
of signature he should first be made to
explain concisely the occurrences which led
purports to attest was known to him.
to his being present on the occasion of the
signing; and if he is about to recognize a 161. When the document purports on Case of
signature on the strength of his knowledge of the face of it to be so old that proof of the documents
the supposed signer's handwriting, he should whose
first be made to slate the mode in which this
actual execution is not required by law, it is execution need
knowledge was acquired. not proved until sufficient evidence has been not be proved.

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given to prove both that it comes into court answers to such questions shall be made to
from the proper custody, and that it has appear on the face of the record as having
continued to be in proper custody been given to the court.
throughout the period during which it can
be reasonably accounted for. 165. The court may also in its discretion Court may
recall any witness, whose testimony has recall witness.

Copy of absent 162. When the document, the admission been taken, for further examination or
original how of which is objected to, is put forward as the cross-examination, whenever in the course
proved. of the trial it thinks it necessary for the ends
copy of an absent original, it is not proved
until both such evidence as is sufficient to of justice to do so.
prove the correctness of the copy, and also
such evidence as would be sufficient to 166. The court may for grave cause, to When may
be recorded by it at the time, permit a court permit
prove the original, had it been tendered departure from
instead of the copy, has been given. departure from the course of trial prescribed above rules.
in the foregoing rules.
Note.The question whether a copy document is
admissible in evidence between the parties in the place 167. The evidence of the witnesses shall Evidence of
be given orally, as above prescribed, in open witness to be
of the original is quite distinct from the question given orally
whether the document (original or copy) is admissible court in the presence and under the personal in open court.
as evidence relevant to the issue under trial. direction and superintendence of the Judge.
On termination 163. When the party beginning has
of beginning
stated his case and adduced his evidence in 168. Witnesses professing to be Witness to be
party's case Christians or Jews, who have discretion to examined on
the opposing accordance with the foregoing rules, then oath or
party to state the opposing party or parties (if there are understand the nature of an oath, shall be affirmation.
and prove his
in like more than one, who have distinct cases) examined upon oath, unless they state that,
manner. shall in person, or by registered attorney or according to their religious tenets or on
counsel, state his or their case or cases (and other grounds they object to the taking of
in the latter event in succession), and when an oath, in which case they shall be
the case of each opposing party has been so examined on affirmation. Witnesses not
Reply. stated each such party shall adduce in order professing to be Christians or Jews shall be
his evidence, oral and documentary, and the examined on affirmation. The same rule
same shall be received and dealt with shall apply to affidavits. And except when
precisely as in the case of the party hereinafter otherwise expressly provided,
beginning, who shall then be entitled to the oath or affirmation shall be
When reply. But where there are several issues, the administered in open court.
rebutting burden of proving some of which lies on the
evidence is
other party or parties, the party beginning 169. The evidence of each witness shall Evidence of
admissible. witness how
may at his option either produce his be taken down in writing by the Judge, or in
taken down.
evidence on those issues or reserve it by way his presence and hearing and under his
[ 30, Law 20
of answer to the evidence produced by the personal direction and superintendence. The of 1977.]
opposing party or parties; and in the latter evidence shall be taken down ordinarily in
case the party beginning may produce the form of a narrative.
evidence on those issues after the other
party or parties has or have produced all his 170. The court may of its own motion Any particular
or on the application of any party take question and
or their evidence, and such other party or answer may
parties may then reply specially on the down or cause to be taken down any be taken down.
evidence so produced by the party particular question and answer, or any
beginning, but the party beginning will in objection to any question, if there appear to
that case be entitled to reply generally on the court any special reason for so doing.
the whole case.
171. If any question put to a witness be The objection
Court may 164. The court may at any time, whether objected to, and the court allows the same to question
question which is
before or after the examination of a witness to be put, the Judge may in his discretion allowed and
witness at any
time. by the respective parties or during such take down in writing the question, the the decision of
examination, put and interpose such answer, the objection, and the name of the court thereon
may be
questions as it may consider conducive to party making it, together with the decision taken down.
the attainment of truth and justice. And the of the court thereon.

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CIVIL PROCEDURE CODE [Cap. 105
The objection 172. If on objection made the court (2) A document which is required to be [3l,Law20of
to question refuses to allow the question to be put, the included in the list of documents filed in 1977]
disallowed and
the decision of Judge shall, on the request of the court by a party as provided by section 121
court thereon questioner, take down in writing the and which is not so included shall not,
to be taken question, the objection, and the name of the without the leave of the court, be received in
down.
party making it, together with the decision evidence at the trial of the action :
of the court thereon.
Provided that nothing in this subsection
Court may 173. The court may record such remarks shall apply to documents produced for cross
record remarks as it thinks material respecting the examination of the witnesses of the opposite
on demeanour
of witness. demeanour of any witness while under party or handed over to a witness merely to
examination. refresh his memory.

Witnesses may 174. The witnesses on either side or on 176. The court may forbid any questions Court may
be kept out of or inquiries which it regards as indecent or forbid indecent
both or all sides shall, on motion of any of or scandalous
court. scandalous, although such questions or
the parties, be kept out of court and questions.
of hearing, except the witness immediately inquiries may have some bearing on the
under examination; nor shall any witness, questions before the court, unless they relate
who shall remain in court or within hearing to facts in issue or to matters necessary to
after order made to that effect, be permitted be known in order to determine whether or
not the fact in issue existed.
to give evidence, unless in the case of a
witness called to prove some fact which has 177. The court shall forbid any question Court shall
incidentally become essential in the course which appears to it to be intended to insult forbid insulting
of the trial, and the necessity of which could questions.
or annoy, or which, though proper in itself,
not reasonably have been anticipated. And appears to the court needlessly offensive in
every witness who has been examined shall form.
be kept separate from, and shall be allowed
no communication with, those who still 178. (1) If a witness is about to leave Evidence de
remain to be examined : the jurisdiction of the court, or if other bene esse.
sufficient cause is shown to the satisfaction
Provided that it shall be lawful for the of the court why his evidence should be
court in its discretion to allow any witness taken immediately, the court may upon the
to be examined, if it shall think such application of either party or of the witness,
examination conducive to the attainment of at any time after the institution of the action
truth or justice, notwithstanding that such and before trial, take the evidence of such
witness shall have remained in court or witness in manner hereinbefore provided.
within hearing contrary to such order
aforesaid. (2) Where such evidence is not taken
forthwith, and in the presence of the parties,
No witness to 175. (1) No witness shall be called on such notice as the court thinks sufficient of
be called or behalf of any party unless such witness shall the day fixed for the examination shall be
document to be
have been included in the list of witnesses given to the parties.
produced
unless included previously filed in court by such party as
in list of (3) The evidence so taken may be read at
provided by section 121: any hearing of the action, provided that the
witnesses or
documents. witness cannot then be produced.
Provided, however, that the court may in
its discretion, if special circumstances 179. The court may at any time, for Evidence taken
appear to it to render such a course sufficient reason, order that any particular on affidavit or
advisable in the interests of justice, permit a fact or facts may be proved by affidavit, or on
commission.
witness to be examined, although such by depositions taken on commission,
witness may not have been included in such instead of by the testimony of witnesses
list aforesaid, given viva voce before it, or that the
affidavit, or deposition taken on
Provided also that any party to an action commission, of any witness may be read at
may be called as a witness without his name the hearing of the action on such conditions
having been included in any such list. as the court shall think reasonable ;
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Cap.105] CIVIL PROCEDURE CODE
Provided that when it appears to the shall, after consultation with the assessors
court that either party bona fide desires the (if any), pronounce judgment in open court,
production of a witness before the court for either at once or on some future day, of
cross-examination viva voce, and that such which notice shall be given to the parties or
witness can be so produced, an order shall their registered attorneys at the termination
not be made authorizing the evidence of of the trial.
such witness to be given otherwise than viva
voce. (2) On the day so fixed, if the court is
Court may 180. In the event of an order having not prepared to give its judgment, a yet
examine been made for the proof of facts by future day may be appointed and
witness viva
voce notwith- affidavit, or by deposition taken on announced for the purpose.
standing commission, the court may, nevertheless, at
affidavit or the instance of either party order the 185. A Judge may pronounce a Judge may
commission.
attendance of the declarant or deponent at judgment written by his predecessor, but not pronounce
, judgment
the hearing of the action for viva voce cross- pronounced, written by
examination, if he is in Sri Lanka and can predecessor.
be produced.
186. The judgment shall be in writing Judgment to be
What 181. Affidavits shall be confined to the and shall be dated and signed by the Judge in writing and
statements may statement of such facts as the declarant is to be dated
affidavit in open court at the time of pronouncing it. and signed in
contain. able of his own knowledge and observation open court.
to testify to, except on interlocutory [32, Law 20 of
applications in which statement of his belief 1977.]
may be admitted, provided that reasonable 186A. Where a Judge pronounces a Validation in
grounds for such belief be set forth in the judgment written by his predecessor but not certain
affidavit. circumstances
pronounced as provided in section 185, such of judgments
judgment shall, if such predecessor was a pronounced by
Petitions 182. A petition stating facts of judicial officer within the meaning of Article successors in
cannot be observation and belief is not converted into office of
converted to 114(6) of the Constitution at the time such Judges.
affidavits. an affidavit by the addition of a verifying judgment was written, not be deemed to be [2, 3 of I960.]
clause, an affirmation or oath, to the effect invalid by reason only of the fact that such
that the statements in the petition are true. predecessor had no jurisdiction to write
such judgment.
Who may 183. In the case of any affidavit under
administer this Chapter
oaths. 187. The judgment shall contain a Requisites of
concise statement of the case, the points for Judgment
(a) any court, or Magistrate, or Justice
determination, the decision thereon, and the
of the Peace; or
reasons for such decision; and the opinions
(b) any officer whom the Minister in of the assessors (if any) shall be prefixed to
charge of the subject of Justice may the judgment and signed by such assessors
respectively.
appoint for the purpose (and who
shall be styled " Commissioner for
Oaths ") may administer the oath to 188. As soon as may be after the Decree.
the declarant. judgment is pronounced, a formal decree
bearing the same date as the judgment shall
CHAPTER XX be drawn up by the court in the form No. 41
in the First Schedule or to the like effect,
JUDGMENT AND DECREE specifying in precise words the order which
is made by the judgment in regard to the
Judgment 184. (I) The court, upon the evidence relief granted or other determination of the
when . which has been duly taken or upon the action. The decree shall also state by what
pronounced.
facts admitted in the pleadings or otherwise, parties and in what proportions costs are to
and after the parties have been heard either be paid, and in cases in the Primary Courts
in person or by their respective counsel or shall state the amount of such cost. The
registered attorneys (or recognized agents), decree shall be signed by the Judge.

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CIVIL PROCEDURE CODE [Cap.105
Amendment of 189, (1) The court may at any time, 193. When the action is for damages for When may
Judgments, either on its own motion or on that of any breach of contract, if it appear that the court decree
decrees and specific
orders. of the parties, correct any clerical or defendant is able to perform the contract, performance.
arithmetical mistake in any. judgment or the court, with the consent of the plaintiff,
order or any error arising therein from any may decree the specific performance of the
accidental slip or omission, or may make contract within a time to be fixed by the
any amendment which-is necessary to bring court, and in such case shall award an
a decree into conformity with the judgment. amount of damages to be paid as an
alternative if the contract is not performed.
(2) Reasonable notice of any proposed
amendment under this section shall in all 194. In all decrees for the payment of When may
money, except money due on mortgage of court decree
cases be given to the parties or their payment by
registered attorneys. movable or immovable property, the court instalments.
may order that the amount decreed to be
Requisites of 190. Where the decree relates to due shall be paid by instalments, with or
decree relating immovable property the property affected without interest, and the court may in its
to immovable discretion impose such terms as it may think
property. thereby shall be described therein by the
[33, Law 20 of boundaries and in such other manner by fit as to giving security for the payments so
1977.] reference to surveys or otherwise as may to be made:
secure, as far as possible, correctness of
identification ; and the description shall be Provided always that on failure to pay the
in such form as to enable such decree to be first or any other instalment, the whole
registered under the Registration of amount or any balance then due shall on
Documents Ordinance. such failure become immediately payable;

Provided also, that if the party ordered to


Requisites of 191. When the action is for movable
decree relating pay by instalments shall appeal against the
property, if the decree be for the delivery of
to movable decree, and the appeal shall be decided
property. such property, it shall also state the amount
against him, his right to pay by instalments
of money to be paid as an alternative, if
shall cease, and the whole amount shall be
delivery cannot be had.
immediately payable, unless the Court of
Appeal or the Supreme Court, as the case
At what rate 192. (1) When the action is for a sum may be, give express direction to the
may interest on of money due to the plaintiff, the court may,
money be contrary;
decreed. in the decree order interest according to the
[5, 53 of rate agreed on between the parties by the Provided also, that no appeal shall lie
1980.] instrument sued on, or in the absence of any against the refusal of the court to make an
such agreement at the rate of twelve per order for payment by instalments.
centum per annum to be paid on the
principal sum adjudged from the date of the 195. If the defendant shall have been Decree when
action to the date of the decree, in addition allowed to set off any demand against the set-off or claim
to any interest adjudged on such principal in reconvention
claim of the plaintiff, the decree shall state is allowed.
sum for any period prior to the institution what amount is due to the plaintiff and
of the action, with further interest at such what amount (if any) is due to the
rate on the aggregate sum so adjudged, from defendant, and the mandatory part of the
the date of the decree to the date of decree shall be for the recovery of any
payment, or to such earlier date as the court balance which shall on that statement
thinks fit. appear to be due to either party. The decree
of the court with respect to anything
(2) When such a decree is silent with warded to the defendant on any matter on
respect to the payment of further interest on which the defendant obtains judgment by
such aggregate sum as aforesaid from the set-off or in reconvention, shall be to the
date of the decree to the date of payment or same effect, and be subject to the same
other earlier date, the court shall be deemed rules, as if such thing had been claimed by
to have refused such interest, and a separate the defendant in a separate action against
action therefor shall not lie. the plaintiff.

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Decree when 196. When the action is for the recovery liabilities respectively as may be in force for
claim in respect of the possession of immovable property, the time being with respect to the estates of
of mesne
profits from yielding rent or other profit, the court may, persons adjudged insolvent.
date of action whenever the prayer of the plaint asks for
is allowed. damages in respect of mesne profits or rent,
[6, 53 of
And all persons who in any such case
1980.] provide in the decree for the payment of would be entitled to be paid out of such
money in lieu of mesne profits or rent in property may come in under the decree for
respect of such property from the date of its administration and make such claims
the institution of the action until the against the same as they may respectively be
delivery of possession to the party in whose entitled to by virtue of this Ordinance.
favour the decree is made, with interest
thereon at such rate not exceeding twelve 200. When the action is to enforce a Decree in
per centum as the court thinks fit. right of pre-emption in respect of a action for pre-
particular sale of property, and the court emption &c
Explanation: " Mesne profits " of property mean finds for the plaintiff, if the amount of
those profits which the person in wrongful purchase money has not been paid into
possession of such property actually court, the decree shall specify a day on or
received, or might, with ordinary diligence, before which it shall be so paid, and shall
have received therefrom.
declare that on payment of such purchase
money, together with the costs (if any)
Mesne profits 197. When the action is for the recovery decreed against him, the plaintiff shall
prior to date of of possession of immovable property and
action. obtain possession of the property, but that if
for mesne profits which have accrued such money and costs are not so paid on or
thereon during a period prior to the before such day or any extension thereof
institution of the action, the court may which shall have been allowed for good
either determine the amount and make an cause shown, the action shall stand
order for the payment thereof additional to dismissed with costs.
and embodied in the decree itself, or may
pass a decree for the property and reserve 202*. When the action is for the Interlocutory
the inquiry into the amount of mesne profits dissolution of partnership, the court before order in action
to be entered upon after the execution of the for dissolution
making its decree may pass an order fixing of partnership.
decree for the property, as may appear most the day on which the partnership shall stand
convenient. dissolved, and directing such accounts to be
taken and other acts to be done as it thinks
fit.
Interlocutory 198. When the action is for an account
order for of any property and for its due
accounts.
administration under the decree of the 203. When the action is for an account Suit for
of pecuniary transactions between principal account
court, the court, before making the final between
decree between the parties, shall order such and agent, and in all other actions not principal and
accounts and inquiries to be taken and hereinbefore provided for, where it is agent.

made, and give such other directions, as it necessary in order to ascertain the amount
thinks fit. of money due to or from any party that an
account should be taken, the court shall
before making its decree pass an order
Administration 199. In the administration by the court directing such account to be taken as it
by. the court. of the property of any person who dies after thinks fit.
this Ordinance comes into force, if such
property proves to be insufficient for the 204. When a decree or order made at Decree or
payment in full of his debts and liabilities, the hearing of the action is such as to have order
postponing
the same rules shall be observed as to the* the effect of postponing the further hearing hearing.
respective rights of secured and unsecured and the final determination of the action, as
creditors, and as to debts and liabilities for instance a decree for the taking of
provable, and as to the valuation of accounts, or an order for the issue of a
annuities and future and contingent commission to take evidence, or of a

* Section 201 is repealed by Ordinance No. 21 of 1927.

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CIVIL PROCEDURE CODE [Cap.105
commission to divide by metes and bounds, 209. When disposing of any application Court always
it shall specify the time at which the further or action under this Ordinance, whether of to have power
to give or
hearing of the action shall be proceeded regular or of summary procedure, the court reserve costs.
with. may, unless elsewhere in this Ordinance
otherwise directed, give to either party the
Any person 205. Upon being paid such fee as the costs of such application or action, or may
entitled to court shall from time to time determine, the reserve the consideration of such costs for
certified copies
of decree and Registrar of the court shall at all times any future stage of the proceedings; any
judgment. furnish to any person applying for the same, order for the payment of costs only is a
and supplying the necessary stamp, copies decree for money within the provisions of
of the proceedings in any action, or any section 194 as to payment by instalments.
party thereof, or upon such application and
production of such stamp shall examine and 210. The decree or order shall direct by Court shall
certify to the correctness of any such copies whom the costs of each party are to be paid, direct by whom
costs to be
made by such person. and whether in whole or in what part or paid.
Decree or copy 206. The decree or such certified copy proportion.
to be primary thereof shall constitute the sole primary
evidence of
evidence of the decision or order passed by 211. The court shall have full power to Court may
decision-
the court. give and apportion costs of every apportion
application and action in any manner it costs.
Decrees must 207. All decrees passed by the court thinks fit, and the fact that the court has no
be decisive, shall, subject to appeal, when an appeal is jurisdiction to try the case is no bar to the
and must not exercise of such power:
direct non-suit. allowed, be final between the parties; and
no plaintiff shall hereafter be non-suited.
Provided that if the court directs that the
Explanation.Every right of property, or to money, costs of any application or action shall not
or to damages, or to relief of any kind which follow the event, the court shall state its
can be claimed, set up, or put in issue reasons in writing.
between the parlies to an action upon the
cause of action for which the action is
brought, whether it be actually so claimed,
212. The court may direct that the costs Set-off of
set up, or put in issue or not in the action, payable to one party by another shall be set costs.
becomes, on the passing of the final decree in off against a sum which is admitted or is
the action, a res adjudicata, which cannot found in the action to be due from the
afterwards be made the subject of action for former to the latter.
the same cause between the same parties.

CHAPTER XXI But such direction shall not affect the lien
upon the amount decreed of any registered
OF COSTS attorney in respect of the costs payable to
Costs. 208. Under the denomination of costs him under the decree.
are included the whole of the expenses
necessarily incurred by either party on 213. The court may give interest on Court may give
costs at any rate not exceeding twelve per interest on
account of the action and in enforcing the costs.
decree passed therein, such as the expense of centum per annum, and may direct that [7, 53 of
stamps, of summoning the defendants and costs, with or without interest, be paid out 1980]
witnesses, and of other processes, or of of, or charged upon, the subject-matter of
procuring copies of documents, fees and the action.
charges of counsel and registered attorneys,
such just and reasonable charges as appear 214. All bills of costs, whether between Costs to be
to have been properly incurred in procuring party and party or between registered taxed.
evidence and the attendance of witnesses, attorney and client, shall be taxed by the
and expenses of commissioners either in Registrar of the court according to the rates
taking evidence or in local investigations, or specified in the Second Schedule; and if
in investigations into accounts; and all either party is dissatisfied with this taxation,
[34, Law 20 of other expenses of procuring and adducing the matter in dispute shall be referred to the
1977.] necessary evidence. court for its decision, and the decision of the
court in review of taxation of costs shall

V/101
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(except when it is the decision of the Court or it may, without affording any substantive
of Appeal) be liable to an appeal to the relief or remedy
Court of Appeal.
(G) declare a right or status.
Action for 215. No registered attorney shall
costs by commence or maintain any action for the And the method of procedure to be
registered followed, when necessary, by the person
attorney. recovery of any fees, charges, or
disbursements at law until the expiration of party to the action in whose favour the
one month or more after he shall have decree or order is made, hereinafter called
delivered unto the party charged therewith, the "decree-holder" or "judgment-
or left with him at his dwelling house or last creditor ", in order to enforce satisfaction or
known place of abode, a bill of such fees, execution of the decree in each case
charges and disbursements subscribed by respectively by the person party to the
such registered attorney. And after such action against whom the decree is made,
delivery or service thereof, either the hereinafter called " the judgment-debtor ", is
registered attorney or party charged that which is next hereinafter specified
therewith may obtain an appointment from according to the above distinguishing heads.
the taxing officer for the taxation thereof;
and if either party shall fail to attend, and (A)
the taxing officer is satisfied that such party
has received due notice of the appointment, EXECUTION OF DECREE TO PAY MONEY
the taxation shall proceed in his absence.
218. When the decree falls under head Power of
(A) and is unsatisfied, the judgment-creditor creditor to
Registered 216. If more than one-sixth of the seize and st
attorney to has the power to seize, and to sell or realize debtor's
amount of any bill of costs is disallowed by
bear costs of in money by the hands of the Fiscal, except property in
taxation in the taxing officer, the registered attorney satisfactior
as hereinafter mentioned, all saleable
what case. shall bear the expense of taxation. decree for
property, movable or immovable, belonging payment of
to the judgment-debtor, or over which or money.
CHAPTER XXII the profits of which the judgment-debtor
has a disposing power, which he may
OF EXECUTIONS exercise for his own benefit, and whether
the same be held by or in the name of the
Classification 217. A decree or order of court may judgment-debtor or by another person in
of decrees. command the person against whom it trust for him or on his behalf;
operates
Provided that the following shall not be
(A) to pay money; liable to such seizure or sale, namely

(B) to deliver movable property; (a) the necessary wearing apparel, beds, Excepted
and bedding of the judgment- property.
(C) to yield up possession of immovable debtor, or of his wife and children;
property;
(b) tools, utensils, and implements of [35, Law
(D) to grant, convey, or otherwise pass trade or business, and, where the 1977.]
from himself any right to, or judgment-debtor is an agriculturist,
interest in, any property; his implements of husbandry and
such cattle and seed grain as may in
(E) to do any act not falling under any the opinion of the court be
one of the foregoing heads ; necessary to enable him to earn his
livelihood as such; and such
or it may enjoin that person quantity of paddy as may, in the
opinion of the court, be necessary
(F) not to do a specified act, or to for the purpose of providing for the
abstain from specified conduct or support of himself and his family
behaviour, until the next harvest;

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CIVIL PROCEDURE CODE [Cap.105
[35, Law 20 of (c) professional instruments and library appurtenant thereto as the court
1977.] necessary for the carrying on of the may consider necessary for its
judgment-debtor's profession or enjoyment;
business to the value of one
thousand rupees; (o) the amount standing to the credit of [2, 24 of
an employee's individual account in 1961.]
(d) books of accounts ; the Employees' Provident Fund
established under the Employees'
(e) mere rights to sue for damages; Provident Fund Act, or in any
other provident fund established for
(f) any right of personal service ; the benefit of employees in any
employment.
[2, 24 of (g) the stipend, the cost of living
1961.] allowance and the special living Explanation.The particulars mentioned in clauses [35, Law 20 of
(g), (h), (i), (j), (m) and (o) are exempt from 1977.]
allowance of a naval, military, air
sequestration or sale, whether before or after
force, civil or political pensioner of they are actually payable.
the Government;
219. (1) The party entitled to enforce Examination
[35. Law 20 of (h) so much of the salary and any decree for the recovery or payment of of judgment-
1977.] debtor as to
allowances of a state officer as does money may apply to the court for an order debts owing to
not in the aggregate exceed five that the debtor (or, in the case of a him.
hundred rupees per month ; corporation, that any officer thereof) be
orally examined before the court on oath or
(i) the pay and allowances of persons to affirmation, as to whether any and what
whom the articles of war apply ; debts are owing to the debtor, and whether
the debtor has any and what other property
(j) the wages of labourers and domestic or means of satisfying the decree; and the
servants; court may thereon make an order for the
attendance and examination on oath or
(k) an expectancy of succession by affirmation of such debtor or of any other
survivorship or other merely person whom it thinks necessary, and for
contingent or possible right of the production by such debtor or person of
interest; any books or documents.

[35, Law 20 of (l) a right to future maintenance and all (2) If a debtor for whose attendance an
1977.] maintenance, alimony and costs order has been made under this section fails
ordered in matrimonial suits or to comply with such order, the court may,
maintenance actions; on its own motion or on the application of
the party entitled to enforce the decree, issue
[35, Law 20 of (m) so much of the salary or wages and a warrant for the arrest of such debtor:
1977.] allowances of an employee other
than a state officer as does not in Provided the court may make it a
the aggregate exceed five hundred condition of the issue of such warrant that
rupees per month; the person applying for it shall deposit such
sum as the court may deem reasonable for
[35, Law 20 of (n) any house which is not mortgaged as the subsistence of the debtor from the time
1977.] security for the payment of the of his arrest until he can be brought before
whole or part of the sum referred to the court, and for the purpose of defraying
in such decree and which is the any other expenditure that may be incurred
actual residence of the judgment- in executing such warrant.
debtor at the time of the execution
of such decree and has been such 220. It shall not be necessary to support Application
residence from the time of the any such application by affidavits of the need not be
supported by
institution of the action in which applicant's belief that any debts are owing affidavit.
such decree has been entered to the debtor, or that he has any other
together with such extent of land property or means of satisfying the decree.

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Costs. 221. The costs of any such application (f) whether any, and what previous
and of any proceedings arising thereout or applications have been made for
incidental thereto shall be in the discretion execution of the decree, and with
of the court. what result, including the dates and
amounts of previous levies, if any;
Execution of 222. (1) If the decree is against a party
decree against as the legal representative of a deceased
legal (g) the amount of the debt or
representative person, and is for money to be paid out of compensation, with the interest, if
of a deceased the property of the deceased, it may be any, due upon the decree, or other
person. executed by the attachment and sale of any relief granted thereby;
such property in the hands or under the
control of the party against whom the (h) the amount of costs, if any,
decree is made. awarded;
(2) If no such property can be found,
and the judgment-debtor fails to satisfy the (i) the name of the person against whom
court that he has duly applied such property the enforcement of the decree is
of the deceased as is proved to have come sought;
into his possession, the decree may be
executed against the judgment-debtor to the (j) the mode in which the assistance of
extent of the property not duly applied by the court is required, whether by
him, in the same manner as if the decree had the delivery of property specifically
been against him personally. decreed, by the arrest and
imprisonment of the person named
[8, 53 of (3) An application to execute a decree in the application, or by the
1980.] against the judgment-debtor as provided in attachment of his property, or
subsection (2) shall be made, by petition otherwise as the nature of the relief
supported by affidavit of the judgment- sought may require.
creditor setting out the material facts, to
which application the judgment-debtor shall 225. (1) Upon the application for Court to satisfy
be made respondent. The court shall after execution of the decree being made, the itself as to
conformity c
inquiry, if satisfied that the decree should be court shall satisfy itself by reference, if application.
executed against the judgment-debtor necessary, to the record of the action in
personally, grant such application. which the decree or order sought to be
executed was passed, that the application is
Seizure and 223. For the purpose of effecting the
sale to be required seizure and sale in any case the substantially in conformity with the
effected under foregoing directions, and that the applicant
order of court. Fiscal must be put in motion by application
for execution of decree to the court which is entitled to obtain execution of the decree
made the decree sought to be enforced. or order which is the subject of the
application. If the court is not satisfied in When
Application 224. The application for execution of these respects it shall refuse to entertain the application
therefor. should be
the decree shall be in writing, signed by the application, unless and until amended in the refused by the
applicant or his registered attorney, and particulars in which the court considers it court.
shall contain the following particulars : faulty and defective, and with the view to its
(a) the number of the action; being so amended the court shall point out
these particulars to the applicant;
(b) the names of the parties;
Provided that the court may make the
(c) the date of the decree;
requisite amendment then and there, if it is
(d) whether any appeal has been consented to by the applicant and is such as
preferred from the decree; to admit of being conveniently so affected;
and
(e) whether any, and what, adjustment
of the matter in dispute has been Provided further that every such
made between the parties amendment shall be attested by the
subsequently to the decree; signature of the Judge making it.

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CIVIL PROCEDURE CODE [Cap.105
(2) In the event of the court refusing to The Fiscal, Deputy Fiscal, or other officer Disposal of
entertain the application, the order of may at his discretion permit the owner or property seized
refusal, stating the date both of the possessor of the property or the writ-holder until sale.
application and of the order, and the name to take charge of the property until the time
of the applicant, and specifying the grounds of sale, on giving security to the satisfaction
of refusal, shall be endorsed on the of such officer that he will in the meantime
application, and the same shall be filed of safely and securely keep the same; or such
record in the action. officer may upon the necessary expenses
therefor being advanced or secured to him
Writ of (3) If the court is satisfied in the respects by the debtor or the writ-holder, keep the
execution. above indicated, it shall direct a writ of property in his own custody or in the
execution to issue to the Fiscal in the form custody of one of his subordinates, or cause
No. 43 in the First Schedule. the same to be removed to some fit place of
security.
Duties of 226. (1) Upon receiving the writ, the
Fiscal on Fiscal or his deputy, or other officer, shall If such security is not given or such
receiving writ.
within forty-eight hours after delivery to expenses are not advanced or secured, the
him of the same, if the debtor shall be a Fiscal, Deputy Fiscal, or other officer shall
person residing within five miles of the make a special return thereof to the court,
office of the Fiscal or Deputy Fiscalor if and shall not be responsible for the due
residing beyond five miles, within an custody of the property so seized.
additional forty-eight hours for every five
miles or part thereofrepair to his dwelling The expenses of keeping the property in
house or place of residence and there such custody or of removing the same when
require him, if present, to pay the amount of certified by the Fiscal shall, if not paid by
the writ. the debtor, be a first charge on the proceeds
of the property seized or sequestered,
(2) If by reason of the debtor's absence provided that the court may, if it thinks fit,
no demand for the payment is made, or, in reduce the amount of expenses so certified
the event of any such demand, when made as aforesaid:
not being complied with, the Fiscal shall
forthwith proceed to seize and sell, or Provided that when the property seized is Proviso as to
otherwise realize in money, such unclaimed subject to speedy and natural decay, or perishable
property.
property of the judgment-debtor as may be when the expense of keeping it in custody
pointed out and surrendered to him for the will exceed its value, the Fiscal may sell it at
purpose by the judgment-debtor, or in once.
default thereof such property of the
Judgment-debtor as may be pointed out by 228. If the property is a negotiable As to
instrument not deposited in a court, nor in attachment of
the judgment-creditor, or such property as is negotiable
specified in the writ according to the rules the custody of a public officer, the instrument.
next hereinafter contained: instrument shall be seized and brought into
court and held subject to the further orders
Provided that when the debtor is out of of the court.
Sri Lanka it shall not be necessary to
229. In the case of- Sezure of
require him to pay the amount of the writ debts, shares,
before the execution is carried into effect. (i) a debt not secured by a negotiable and movable
property not in
instrument, possession of
Mode of Seizure debtor and not
(ii) a share in the capital of any public deposited in
Seizure of 227. If the property sought to be seized company or corporation,
court to be by
written notice
movable and sold, or otherwise realized in
property in of prohibition-
possession of satisfaction of the decree to be executed is (iii) other movable property not in the
debtor to be movable property in the possession of the possession of the judgment-debtor,
manual. judgment-debtor, other than the property except property deposited in, or in
mentioned in the first proviso to section the custody of, any court, or in the
218, the seizure shall be manual. custody of a public officer,

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the sequestration or seizure shall be made to, any such application as aforesaid shall
by a written notice signed by the Fiscal, be in the discretion of the court.
prohibiting
231. Payment made by, or execution Payment by
(a) in the case of the debt, the creditor levied upon, such debtor in manner him to be a
from recovering the debt, and the discharge as
provided in the last preceding section shall against
debtor from making payment be a valid discharge to him as against the judgment-
thereof until the further order of the judgment-debtor to the amount paid or debtor.
court from which the writ of levied, although such proceeding may be set
execution authorizing the seizure aside or the judgment in respect of which
issues; any payment or levy is made may be
reversed.
(b) in the case of the share, the person in
whose name the share may be
standing from transferring the same 232. (1) If the property is deposited in, Seizure of
or in the custody of, any court or public property
or receiving any dividend thereon ; deposited in
officer, the seizure shall be made by a notice any court.
(c) in the case of the other movable to such court or officer, requesting that such
property except as aforesaid, the property and any interest or dividend
person in possession of the same becoming payable thereon may be held
from giving it over to the subject to the further orders of the court
judgment-debtor. from which the writ of execution
authorizing the seizure issues :
A copy of such order shall be affixed to
some conspicuous part of the court-house, Provided that, if such property is Question of
and another copy of the same shall be deposited in, or is in the custody of, a court, title or proirity.
delivered or sent by post, in the case of the any question of title or priority arising
debt to the debtor, in the case of the share between the judgment-creditor and any
to the proper officer of the company or other person, not being the judgment-
corporation, and in the case of the other debtor, claiming to be interested in such
movable property (except as aforesaid) to property by virtue of any assignment,
the person in possession of the same. attachment, or otherwise, shall be
determined by such court.
Judgment- 230. (I) A debtor prohibited under
debtor's debtor clause (a) of the last preceding section may,
maybe (2) Upon such notice being received by
summoned, or upon the ex parte application of the any court a memorandum thereof shall be
execution may judgment-creditor, be summoned by the made in the journal of the action in which
issue against court to show cause, on a day fixed in the
him. or to the credit of any party to which, the
summons, why he should not pay to the money is deposited, or is in the custody of
judgment-creditor the debt due from him to the court.
the judgment-debtor, or so much thereof as
may be sufficient to satisfy the judgment. If Explanation.Money in an appropriate bank account
to the credit of an action, or to the credit of
such debtor does not dispute the debt due or
any party to an action, is within the meaning
claimed to be due from him, and fails within of this section, money deposited in, or in the
such time as may be allowed him by the custody of, the court in which the action is.
court to pay into court the amount due
from him to the judgment-debtor, or an
amount equal to the judgment, or if he does 233. The notice necessary to effect Notice by
not appear upon summons, then the court seizure under section 229 and 232 may be Fisca1.
may order execution to issue, and it may signed and served by the Fiscal under the
issue accordingly, to levy the amount due authority of the writ of execution alone.
from such debtor, or so much thereof as
may be sufficient to satisfy the judgment. 234. (1) If the property is a decree for Seizure of a
money passed in favour of the judgment- money decree
in favour of
(2) The costs of any application and of debtor by the court which passed the decree Judgment-
any proceedings arising from, or incidental sought to be executed, the seizure shall be debtor.

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CIVIL PROCEDURE CODE [Cap. 105
made by an order of the court directing the the continuance of the seizure, shall be void
proceeds of the former decree to be applied as against all claims enforceable under the
in satisfaction of the latter decree. seizure.

(2) If the property is a decree for money 237. (1) If the property is immovable, Seizure of
the seizure shall be made by a notice signed immovable
passed by any other court, the seizure shall properly to be
be made by a notice in writing to such court by the Fiscal prohibiting the judgment- by written
signed by the Registrar of the court which debtor from transferring or charging the notice of
property in any way, and all persons from prohibition.
passed the decree sought to be executed,
requesting the former court to stay the receiving the same from him by purchase,
execution of its decree until such notice is gift, or otherwise.
cancelled by the court from which it was
sent. The court receiving such notice shall (2) The notice shall specify the parties to Publication of
the action, the judgment-debtor, the dates of such notice-
stay execution accordingly, unless and
until judgment and seizure, and the name,
situation, and boundaries of the land seized,
and shall be proclaimed at some place on or
(a) the court which passed the decree adjacent to such property by beat of tom-
sought to be executed cancels the tom or other customary mode, and a copy
notice, or of the notice shall be affixed by the Fiscal to
a conspicuous part of the property and of
(b) the holder of the decree sought to be the court-house and of the Fiscal's office.
executed applies to the court But in no case shall the Fiscal enter upon
receiving such notice to execute its actual possession of the immovable property
own decree. so seized, or receive the rents and profits
thereof, unless expressly directed so to do
On receiving such application the court by order made under Chapter L.
shall proceed to execute the decree and
apply the proceeds in satisfaction of the 238. When a seizure of immovable Effect of
property is effected under a writ of publication of
decree sought to be executed. seizure and
execution and made known as provided by registration of
section 237 and notice of the seizure is notice of
Seizure of any 235. In the case of all other decrees the registered before the 1st day of January, seizure.
other decrees. seizure shall be made by an order of the 1928, in the book formerly kept under
court which passed the decree sought to be section 237 or is registered on or after the
executed to the holder of the decree sought 1st day of January, 1928, under the
to be seized, prohibiting him from Registration of Documents Ordinance, any
transferring or charging the same in any sale, conveyance, mortgage, lease, or
way, and when such decree has been passed disposition of the property seized, made
in any other court, also by sending to such after the seizure and registration of the
court a like notice in writing to abstain from notice of seizure and while such registration
executing the decree sought to be seized remains in force is void as against a
until such notice is cancelled by the court purchaser from the Fiscal selling under the
from which it was sent. Every court writ of execution and as against all persons
receiving such notice shall give effect to the deriving title under or through the
same until it is so cancelled. purchaser.

Alienation by 236. When a seizure of any negotiable 239. If the amount decreed with costs When seizure
debtor instrument, debt, share, money, decree or and all charges and expenses resulting from must be
subsequent to ordered to be
seizure void as any other movable property has been the seizure of any property is paid into withdrawn.
against claims effected and made known in manner court, or if satisfaction of the decree is
enforceable hereinbefore provided, any private otherwise made through the court, or if the
under seizure,
alienation of the property seized, whether by decree is set aside or reversed, an order shall
sale, gift, mortgage, or otherwise, and any be issued on the application of any person
payment of the debt or dividend or delivery interested in the property, for the
of the share to the judgment-debtor during withdrawal of the seizure.

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List to be made 240. As soon as any property shall be 242. The claim or objection shall be Claim to be
of property made at
seized by the Fiscal, Deputy Fiscal, or other made at the earliest opportunity, and if the earliest
seized.
officer, a list of such property shall property to which the claim or objection opportunity
forthwith be made and signed by himself or applies shall have been advertised for sale,
the person seizing the same, and shall be the sale may (if it appears to the court
given to the judgment-debtor and to any necessary) be postponed for the purpose of
person claiming to be in possession of the making the investigation mentioned in
property seized, and copies thereof shall be section 241:
also deposited in the Fiscal's office and
annexed to the return to the writ. Provided that no such investigation shall
be made if it appears to the court that the
Claims to Property seized making of the claim or objection was
designedly and unnecessarily delayed with a
Claims to 241. In the event of any claim being view to obstruct the ends of justice.
property seized preferred to, or objection offered against the
to be reported
by Fiscal and seizure or sale of, any immovable or 243. The claimant or objector must on Claimant to
investigated by movable property which may have been such investigation adduce evidence to show adduce
court. evidence.
seized in execution of a decree or under any that at the date of the seizure he had some
order passed before decree, as not liable to interest in, or was possessed of, the property
be sold, the Fiscal or Deputy Fiscal shall, as seized.
soon as the same is preferred or offered, as
the case may be, report the same to the 244. If upon the said investigation the Discretion of
court which passed such decree or order; court is satisfied that, for the reason stated court to release
the property
and the court shall thereupon proceed in a in the claim or objection such property was claimed.
summary manner to investigate such claim not, when seized, in the possession of the
or objection with the like power as regards judgment-debtor, or of some person in trust
the examination of the claimant or objector, for him or in the occupancy of a tenant or
and in all other respects, as if he were a other person paying rent to him, or that
party to the action; being in the possession of the judgment-
debtor at such time, it was so in his
Provided always that when any such possession, not on his own account or as his
claim or objection is preferred or offered in own property, but on account of or in trust
the case of any property so seized outside for some other person, or partly on his own
the local limits of the jurisdiction of the account and partly on account of some
court which passed the decree or order other person, the court shall release the
under which such seizure is made, such property wholly, or to such extent as it
report shall be made to, and such thinks fit, from seizure and make such order
investigation shall thereupon be held by, the as to payment of fees and charges already
court of the district or division within the incurred by the Fiscal as it may deem fit.
local limits of which such seizure was made,
and the proceedings on such report and 245. If the court is satisfied that the When may
investigation with the order thereon shall, at property was, at the time it was seized, in court disallow
the claim.
the expiry of the appealable time, if no possession of the judgment-debtor as his
appeal has been within that time taken own property, and not on account of any
therefrom, but if an appeal has been taken, other person or was in the possession of
immediately upon the receipt by such court some other person, in trust for him, or in
of the judgment or order in appeal, be the occupancy of a tenant or other person
forwarded by such court to the court which paying rent to him, the court shall disallow
passed the decree or order, and shall be and the claim.
become part of the record in the action;
246. If the court is satisfied that the Court may
Provided, further, that in every such case property is subject to a mortgage or lien in continue
seizure subject
the court to which such report is made shall favour of some person not in possession, to mortgage or
be nearer to the place of seizure than, and of and thinks fit to continue the sequestration lien.
co-ordinate jurisdiction with, the court or seizure, it may do so subject to such
which passed the decree or order. mortgage or lien.

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CIVIL PROCEDURE CODE [Cap.105
Action by 247. The party against whom an order 251. Where property of a partnership Undertaking,
party claiming under section 244, 245, or 246 is passed may has been released upon an undertaking as to whose
right. benefit it
institute an action within fourteen days prescribed in the last two sections, if the
from the date of such order to establish the execution by virtue of which the levy was
right which he claims to the property in made is set aside or is satisfied without a
dispute, or to have the said property sale of the interest levied upon, the
declared liable to be sold in execution of the undertaking enures to the benefit of each
decree in his favour ; subject to the result of judgment-creditor of the same judgment-
such action, if any, the order shall be debtor then having an execution in the
conclusive. hands of the Fiscal having authority to levy
upon that interest, as if it had been given to
Punishment as 248. Whenever it shall appear to a obtain a release from a seizure made by
well as competent court, and be so found and virtue of such an execution.
damages may
be awarded for declared in any judgment pronounced by it
groundless in any action instituted by or against any 252. Where property of a partnership Interest of
claim. person claiming any property pointed out or has been so released, the interest of the judgment-
debtor may be
seized in execution, that such claim is judgment-debtor therein may be sold by the sold.
altogether groundless, and wilfully preferred Fiscal, and the purchaser upon the sale
only to defeat or delay the execution, every acquires all that interest as if he was an
such claimant shall, in addition to his assignee thereof.
liability to pay costs and damages, be liable
Of the Sale and Disposition of the Property
to a fine not exceeding fifty rupees, and
seized: (I) Of Sales Generally
such fine shall be recovered as a fine
imposed by a court in a criminal case.
253. If the property seized is coin or Coin or
currency notes the Fiscal shall deal with it in currency notes
seized how
Seizure of 249. When a Fiscal has seized property the manner hereinafter directed in respect of dealt with.
partnership of a partnership before or after its money received by the Fiscal on the sale of
property for property sold at the execution sale.
debt of dissolution, upon a writ of execution against
partner, other the interest therein of any partner made by
partner may 254. When the property seized is a How may
virtue of ah execution against his individual decree of court,
apply for decree of court the judgment-creditor at
release. property, any other partner or former whose instance the seizure is made shall be seized be
partner having an interest in the property realized.
deemed the assignee thereof under
may, at any time before the sale, apply to assignment as of the date of the seizure,
the court from which the writ of execution made by the person against whom he is
issued, upon an affidavit showing the facts, executing the writ of execution, so far as
for an order directing the Fiscal to release that person's interest extends, and he may
the property and to deliver it to the realize the decree in the manner hereinafter
applicant. provided for the execution of a decree by an
assignee thereof.
Undertaking to 250. Upon such an application the 255. In the case of all other property Procedure in
be given by applicant must give an undertaking, with at
applicant. seized by the Fiscal he shall proceed to the case of other
least two sureties, approved by the Judge, to sale thereof in the manner following :
property seized
the effect that he will account to the by Fiscal.
purchaser upon the sale to be made by
I.In all cases of movable property the Notice of sale:
virtue of the execution of the interest of the Fiscal or Deputy Fiscal shall cause notice of I.For
judgment-debtor in the property seized, in sale thereof to be given by beat of tom-tom
movable
like manner as he would be bound to property.
or in such other manner as to secure
account to an assignee of such an interest; publicity thereto, both at the place of sale
and that he will pay to the purchaser the and also where the seizure shall have been
balance which may be found due upon the made, and such notice shall not be less than
accounting, not exceeding a sum specified in three days and not exceeding fourteen days
the undertaking, which must be not less before the day of sale, unless the time be
than the value of the interest of the enlarged by any order of court, and shall
judgment-debtor in the property seized by specify, as fairly and accurately as under the
the Fiscal as fixed by the Judge. circumstances is reasonably practicable

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(a) the property to be sold ; When the proceeds do not exceed the sum
of seven thousand five hundred rupees, the
(b) the action in which, and Fiscal or Deputy Fiscal shall recover a fee
(c) the place, and of three per centum on the proceeds actually
recovered on return thereof made to the
(d) day, and court in respect of every sale and resale of
(e) hour at which the sale is to take movable property, and two per centum on
place; the proceeds of sale of immovable property
belonging to the debtor.
(f) the amount of money for the levy of
which the writ issued. When the proceeds, whether of movable
or immovable property, exceed that sum,
II.For II.In all cases of immovable property the Fiscal or Deputy Fiscal shall recover a
immovable the like notice of sale shall be given as is
property. fee of one hundred and fifty rupees and of
[36, Law 20 of
hereinbefore required in sales of movable five rupees for every thousand rupees of the
1977.] property, and the Fiscal, Deputy Fiscal, or proceeds over and above the said sum of
other officer shall also cause to be made seven thousand five hundred rupees.
three copies of the notice of sale in the
language of the court, and, where the And in every case after the seizure of
language of the court is also Tamil, three property and publication of sale thereof, in
translations into that language, one of each which the sale shall be postponed or stayed
of which he shall cause to be posted at the at the request or with the concurrence of the
court-house whence the execution issued, in party suing out the writ, the Fiscal or
some conspicuous part of the town or Deputy Fiscal shall recover half of the
village in which the land is situate, and on above fees on the estimated value of such
some conspicuous spot on the property for property from the party at whose instance
sale, each of which publications shall be the writ shall be stayed, and in default of
made ten days at the least before such sale immediate payment thereof the Fiscal shall
takes place. certify the amount of such fees to the court
whence the execution issued :
Advertisement 256. Whenever the property seized
where under one writ shall exceed the value of five
property Provided, however, that such fee shall
exceeds five thousand rupees, the Fiscal, Deputy Fiscal never exceed fifty rupees or the actual
thousand or other officer shall, in addition to the expenditure already incurred by the Fiscal
rupees in notice hereinbefore required, advertise the towards carrying out the sale, whichever
value. sale thereof, enumerating briefly the goods
[37, Law 20 of sum shall be the larger. The fees recovered
1977.] for sale, the nature and situation of the under this section shall be brought to
land, and the time and place of the sale, in a account and appropriated in such manner as
local daily newspaper or in such other the Secretary to the Treasury shall from
manner as the court may direct having time to time direct.
regard to the value of the property and
other relevant circumstances; and no such 259. (1) If at any time prior to the sale Court may in
sale shall take place until it shall have been of immovable property seized in execution certain cases
so advertised once at least twenty days prior the judgment-debtor can satisfy the court postpone sale.
to the sale. It shall be lawful to the that there is reason to believe that the
execution-creditor or debtor to require the amount of the decree and of any unsatisfied
publication of such sale to be made in any judgment then in force against him may be
newspaper to be named by him, and all raised by mortgage, or lease, or private sale
costs and charges attending such of such property, or some part thereof, or of
advertisements, particulars of which shall be any other immovable property of the
always given by the Fiscal with his return,
judgment-debtor, the court may on his
shall be paid in advance by the party
application postpone the sale of such
requiring such publication.
property for such period as it thinks proper
Proceedings at 258*. Every sale shall be held by an to enable him to raise the amount, and shall
the sale. officer of the Fiscal, or some other person make such order as to the payment of fees
duly authorized by the Fiscal or Deputy and charges due to the Fiscal as it may
Fiscal by writing under his hand. deem fit.

* Section 257 is repealed by Law No. 20 of 1977.


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CIVIL PROCEDURE CODE [Cap. 105
(2) In such case the court shall grant a persons, of whom one is a co-sharer,
certificate to the judgment-debtor, respectively advance the same sum at any
authorizing him, within a period to be bidding at such sale, such bidding shall be
mentioned therein, and notwithstanding deemed to be the bidding of such co-sharer.
anything contained in section 238, to make
the proposed mortgage, lease, or sale; 265. The Fiscal or other officer Fiscal to satisfy
conducting any sale of immovable property himself as to
bona fides of
Provided that all moneys payable under under this Chapter may, before accepting bidder.
such mortgage, lease, or sale shall be paid any bid at such sale, satisfy himself as to the
into court and not to the judgment-debtor ; bona fides of the bidder, and his ability to
pay down the amount of deposit required ;
Provided also that no mortgage, lease, or and in the event of his not being so satisfied
sale under this section shall become absolute may refuse to accept any such bid, and shall
until it has been confirmed by the court. continue the sale as if no such bid had been
made.
Deposit by 260. On every sale of immovable
purchaser. property under this Chapter the person 266. The second sale, taking place in Deficiency on
declared to be the purchaser shall pay consequence of such non-payment of resale to be
immediately after such declaration, in every paid by first
balance of purchase money, shall be made purchaser on
case where the price does not exceed one in the manner hereinbefore prescribed for Fiscal's
hundred rupees, the full amount of, but in certificate.
the first sale, and if the amount of the
every other case a deposit of twenty-five per purchase money for which the property is
centum on the amount of his purchase sold at such second sale shall fall short of
money to the officer conducting the sale, the amount for which the first sale was
and in default of such deposit the property concluded, then the first purchaser and his
shall forthwith be put up again for sale. sureties, if any, shall be held liable to pay
the Fiscal the amount of this difference, and
Payment in 261. Where the price exceeds one the Fiscal on non-payment thereof by such
full. hundred rupees the balance amount of the purchaser and his sureties within one week
purchase money shall be paid by the after demand made by him upon them
purchaser on or before the thirtieth day respectively in writing, shall certify the
after the sale of the property, or if the amount of the said difference to the court
thirtieth day be a public holiday, then on whence the execution issued. And the like
the first office day after the thirtieth day. course shall be observed in respect of any
subsequent sale rendered necessary by
Default in 262. In default of payment within the failure in payment of the purchase amount.
payment, period mentioned in the last preceding
consequence
of. section, the deposit, after defraying the 267. If at the sale of immovable On highest
property the highest bidder on being bidder not
expenses of the sale, shall be forfeited to, making
and shall go in reduction of the claim of, the declared the purchaser shall not forthwith deposit, next
Judgment-creditor, and the property shall be pay down the amount of deposit required, highest may be
and give good and sufficient security to the declared
resold, and the defaulting purchaser shall purchaser;
forfeit all claim to the property and to any satisfaction of the Fiscal, Deputy Fiscal, or difference to be
part of the sum for which it may other officer for the payment of the residue, paid by highest
the next highest bidder may be thereupon bidder on
subsequently be sold. Fiscal's
declared the purchaser, and required to certificate.
Fresh 263. Every resale of immovable property make such deposit and security as
notification in default of payment of the purchase aforesaid ; and in the same manner the other
on resale. money within the period allowed for such bidders in rotation ; and each person failing
payment shall be made after the issue of a to make such deposit and to give security as
fresh notification in the manner and for the aforesaid may be held liable to pay the
period hereinbefore prescribed for the sale. difference between the amount of his offer
and the sum finally settled at the sale, and
Bid by a 264. When the property sold in the Fiscal, on non-payment thereof by such
co-sharer. execution of a decree is a share of undivided persons respectively within one week after
immovable property, and two or more demand made by him upon them in writing,

V/lll
Cap.105] CIVIL PROCEDURE CODE
shall certify the amount of the said tom-tom or in any other manner
difference in each case to the court whence whatsoever, shall in every instance, where
the execution issued: provision for the payment thereof is not
otherwise specially made, be prepaid by the
Provided,-however, that in case of default person at whose instance or in whose
of the highest bidder, instead of declaring interest the same is required.
the next highest bidder purchaser, the
officer holding the sale may forthwith put 271. No officer having any duty to No officer
up the property for sale anew, or adjourn perform in connection with any sale under conducting sale
the sale, in which latter case the property this Chapter shall either by himself or to bid
shall again be advertised as before. another bid for, acquire, or attempt to
acquire any interest in any property sold at
Forfeiture of 268. If the price for which the property such sale.
deposit. is finally sold at the second or any
subsequent sale is not less than that of the 272. (1) A holder of a decree in Holder of
first sale, then the money deposited by the execution of which property is sold may, decree may be
or purchase.
purchaser at the first and other sales which with the previous sanction 01 and subject to
preceded the final sale shall be paid to the such terms as to credit being given him by
execution-creditor in satisfaction pro tanto the Fiscal and otherwise as may be imposed
of the judgment; and in the event of such by the court, bid for or purchase the
judgment being so satisfied, and any surplus property.
remaining, such surplus shall, after
deducting any expenses consequent on the (2) When a decree-holder purchases, the And purchase
purchase money and the amount due on the money may be
sale, be paid to the judgment-debtor. set off against
decree may, if the court thinks fit, be set off decree.
Differences 269. The differences between the against one another, and the court in
realized to biddings of any person failing to make the execution of whose decree the sale is made
augment the may enter up satisfaction of the decree in
purchase deposit and give the security required by
money. section 267 and the sum finally settled at whole or in part accordingly.
any such sale and between the amount of
the final sale and those of previous sales 273. In all cases the sale of immovable Place of sale of
shall, when realized, be paid by the Fiscal property shall be conducted on the spot, immovable
into the Government Agent's office in unless the court shall otherwise direct, or property.
augmentation of the purchase money of the unless on application in writing to the Fiscal
final sale. or his deputy the parties shall consent to its
being conducted elsewhere.
The amount 270. The amount certified by the Fiscal
certified by (2) Of Sales of Movable Property
to be payable to him for half fees under the
Fiscal to be
recovered as by provisions of section 258 and the amounts 274. If the property to be sold is a Sale of a
execution of of the differences certified by the Fiscal and negotiable instrument or a share in any negotiable
decree. directed to be reported to the court by instrument or a
public company or corporation, the court share in any
sections 266 and 267 shall, in the case of may direct the Fiscal, instead of selling it by public
such half fees at the instance of the Fiscal company.
public auction, to make the sale of such
and in the case of such differences instrument or share through a broker at the
respectively at the instance either of the market rate of the day.
Fiscal, or of the judgment-creditor, or of the
judgment-debtor, be recoverable from the 275. (1) In the case of other movable Sale of other
persons declared in those sections to be property, the price shall be paid at the time movable
property.
liable to pay the same, in the same way as if of sale, and in default of payment the
the certificate were a decree for money property shall forthwith be again put up for
passed by the court to which it is returned sale.
Cost of notice, against those persons; and the cost (to be
publication, or fixed by the court) of any notice, (2) On payment of the purchase money,
proclamation.
publication, or proclamation required under the officer holding the sale shall grant a
any of the provisions of this Ordinance to receipt for the same, and the sale shall
be given or made by the Fiscal by beat of become absolute.

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CIVIL PROCEDURE CODE [Cap.105
What may 276. No irregularity in publishing or " A. B. by C. D.. Judge of the District
vitiate sale. conducting the sale of movable property Court of . . . . . . . . (or as the case may be),
shall vitiate the sale unless substantial in an action by E. F. against A. B."
damage has been caused to the person
impeaching the sale thereby. (2) Until the transfer of such instrument
or share the court may, by order, appoint
some person to receive any interest or
Delivery to 277. When the property sold is a dividend due thereon, and to sign a receipt
purchaser. negotiable instrument or other movable for the same; and any endorsement made,
property of which actual seizure has been or document executed, or receipt signed as
made, the property shall be delivered to the aforesaid, shall be as valid and effectual for
purchaser. all purposes as if the same had been made,
or executed, or signed by the party himself.
Delivery where 278. When the property sold is any 281. In the case of any movable In case of other
third party is in movable property to which the judgment- movable
possession. property not hereinbefore provided for, the
debtor is entitled, subject to a right of iproperty court
court may make an order and execute such may make
possession of some other person, the document as may be necessary vesting such vesting order.
delivery thereof to the purchaser shall be property in the purchaser, or as he may
made by giving notice to the person in direct; and such property shall vest
possession prohibiting him from delivering accordingly.
possession of the property to any person
except the purchaser. (3) Of Sales of Immovable Property
282. (1) The Fiscal shall report to the Sale not
Delivery of 279. When the property sold is a debt court every sale of immovable property absolute unti1
unsecured debt not secured by a negotiable instrument, or is after thirty
or share. made by him or under his direction within days and
a share in any public company or ten days after the same shall have been confirmation
corporation, the assignment thereof shall be made. And no sale of immovable property by court ;
made by a certificate of sale in favour of the shall become absolute until thirty days have
purchaser signed by the Fiscal, who shall elapsed subsequent to the receipt of such
forthwith, by a written notice, prohibit the report, and until such sale has been
creditor from receiving the debt or any confirmed by the court.
interest thereon, and the debtor from
making payment thereof to any person (2) The decree-holder, or any person and may be set
except the purchaser, or the person in whose whose immovable property has been sold asidefor
material
name the share may be standing from under this Chapter, or any person irregularity.
making any transfer of the share to any establishing to the satisfaction of the court
person except the purchaser, or receiving an interest in such property, may apply by
payment of any dividend or interest thereon, petition to the court to set aside the sale on
and the manager, secretary, or other proper the ground of a material irregularity in
officer of the company from permitting any publishing or conducting it; but no sale
such transfer or making any such payment shall be set aside on the ground of
to any person except the purchaser. irregularity unless the applicant proves to
the satisfaction of the court that he has
Endorsement 280. (1) If the endorsement or sustained substantial injury by reason of
of negotiable conveyance of the party in whose name a such irregularity, and unless the grounds of
instrument or the irregularity shall have been notified to
share negotiable instrument or a share in any
certificate. public company or corporation is standing the court within thirty days of the receipt of
is required to transfer such instrument or the Fiscal's report.
share, the Judge may endorse the
instrument or the certificate of the share, or (3) In every such application the
may execute such other document as may be purchaser shall be made respondent to the
petition.
necessary.
283. (1) If no such application as is Order
The endorsement or execution shall be in mentioned in the last preceding section is confirming the
the following form or to the like effect: made within the thirty days, or if such sale

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application is made and the objection required by law for the conveyance of the
disallowed, the court shall at any time after land sold to him (which stamps he shall be
the expiration of the thirty days, on the bound to supply when he pays the purchase
application of the decree-holder or of the money in full), and if the sale was not
purchaser, pass an order confirming the sale effected in execution of a decree specifically
as regards the parties to the suit and the directing the sale, then the Fiscal or Deputy
purchaser: Fiscal shall forthwith make out and execute
a conveyance in duplicate of the property
Provided that no order confirming the according to the form No. 56 in the First
sale shall be made if it appear to the court Schedule, or such other form, or expressed
that the judgment-debt was satisfied at the in such terms, as the court may deem
time that the writ of execution issued. expedient, which conveyance shall be
binding and of force, though not executed
Order setting (2) If such application is made, and if before a notary public.
aside the sale. the objection is allowed, the court shall pass
an order setting aside the sale. The Fiscal or Deputy Fiscal shall deliver
the original to the purchaser and transmit
When 284. The purchaser at any such sale may the duplicate to the Registrar of Lands for
purchaser may apply to the court by petition on summary the district in which the land is situate, in
apply to set
aside sale. procedure to set aside the sale, on the like manner as now is or shall be required to
ground that the person whose property be done by notaries in respect of deeds
purported to be sold had no saleable interest executed before them; and the Fiscal or
therein, and the court may, on such Deputy Fiscal shall be entitled to recover
application, make such order as it thinks for such conveyance
fit:
(a) when the amount of purchase shall
Provided that both the judgment-debtor be under thirty rupees, a fee of fifty
and the decree-holder are made respondents cents;
to the petition.
(b) when it shall exceed thirty rupees, a
fee of one rupee;
When 285. (!) When a sale of immovable
purchaser may property is set aside under sections 282, 283,
get back his (c) when it shall exceed one hundred
purchase or 284, when it is found that the judgment- rupees, a fee of one rupee and fifty
money. debtor had no saleable interest in the cents;
property which purported to be sold, and
the purchaser is for that reason deprived of (d) when it shall exceed two hundred
it, the purchaser shall be entitled to receive rupees, a fee of two rupees and fifty
back his purchase money from any person cents; and
to whom the purchase money has been paid.
(e) when it shall exceed five hundred
(2) An order for the repayment of the rupees, a fee of three rupees and
said purchase money may be made by the seventy-five cents, and no more;
court on any application under sections 282,
283 or 284, provided that the person and such fee shall be brought to account
against whom the order is directed is party and appropriated in such manner as the
thereto, and such order may be enforced Secretary to the Treasury shall direct.
against such person under the rules But if the sale was effected in execution of
provided by this Ordinance for the a decree specifically directing the sale, then
execution of a decree for money. the conveyance shall be made in conformity
with the directions of the court contained in
Conveyance to 286. If the court shall have confirmed the decree:
purchaser. the sale and the purchaser shall have paid
the full amount of the purchase money Provided, however, that to all Conveyance to
according to the conditions of sale, and conveyances made by the Fiscal to complete contain
sufficient map
shall have supplied the Fiscal or Deputy a sale effected in execution of a decree of of the
Fiscal with stamps of the proper amount court, in the event of there being no premises.

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CIVIL PROCEDURE CODE [Cap. 105
transferred to the purchaser, and the cost
diagram or map of the premises which are (to be fixed by the court) of such
the subject of the conveyance already proclamation shall in every case be prepaid
appended to a title deed thereof delivered to by the purchaser.
[2, 32 of the purchaser there shall, if the purchaser
1957.] so requires but not otherwise, be annexed a 289. The right and title of the judgment- Right and title
sufficient map exhibiting, when possible, debtor or of any person holding under him of jutigment-
debtor not
some permanent physical feature of the or deriving title through him to immovable divested by
ground; and the purchaser shall pay in property sold by virtue of an execution is sale till
advance the expense of preparing it in not divested by the sale until the confirmation
and execution
addition to the fee prescribed for the confirmation of the sale by the court and of Fiscal's
conveyance. Such diagram or map shall be the execution of the Fiscal's conveyance, conveyance.
prepared by a competent surveyor licensed But if the sale is confirmed by the court and
by the Fiscal or Deputy Fiscal for that the conveyance is executed in pursuance of
purpose, and such surveyor shall be an the sale, the grantee in the conveyance is
officer of the Fiscal within the meaning of deemed to have been vested with the legal
section 325, and shall for the purposes of estate from the time of the sale.
the Penal Code be deemed to be a public
servant. 290. The Fiscal, on the day of the sale. Fiscal may
or at any time thereafter until the enter property
Court may 287. (1) When the property sold is in confirmation of the sale by the court and sold.
order delivery the occupancy of the judgment-debtor or of the execution of the Fiscal's conveyance
of possession
to purchaser. some person on his behalf, or of some may at his discretion, and if provided with
person claiming under a title created by the the necessary funds therefor by the
judgment-debtor subsequently to the seizure purchaser or by the judgment-creditor, or
of such property, and a conveyance in debtor, himself or by his agent duly
respect thereof has been made to the authorized in writing enter into possession
purchaser under section 286, the court shall of the immovable property sold by virtue of
on application by the purchaser, order the execution, and retain possession of the
delivery to be made by putting the same until the confirmation of the sale by
purchaser or any person whom he may the court and the execution of the
appoint to receive delivery on his behalf in conveyance in pursuance thereof.
possession of the property, and, if need be,
by removing any person bound by the
291. The person in possession of Person in
decree who refuses to vacate the same. possession may
immovable property sold by virtue of an use and enjoy
execution may, until the confirmation of the until
Order how to (2) An order for delivery of possession confirmation
be enforced. sale by the court and the execution of the of sale.
made under this section may be enforced as
Fiscal's conveyance, use and enjoy the same
an order falling under head (C) section 217,
as follows, without being chargeable with
the purchaser being considered as
committing waste;
judgment-creditor.
(1) He may use it and enjoy it in like
Mode of 288. When the property sold is in the manner and for the like purposes as
delivery where occupancy of a tenant or other person
property is in it was used and enjoyed before the
occupancy of entitled to occupy the same, and a sale, doing no permanent injury to
person entitled conveyance in respect thereof has been the property.
to occupy. made to the purchaser under section 286,
the court shall order delivery thereof to be (2) He may make the necessary repairs
made by affixing a notice of the sale having to a building or other erection
taken place, in the language of the court, thereupon. But this provision does
and, where the language of the court is also not permit an alteration in the form
Tamil, in that language, in some or structure of the building or other
conspicuous place on the property, and erection.
proclaiming to the occupant by beat of tom-
tom, or in such other mode as may be (3) He may use and improve the land in
customary, at some convenient place, that the ordinary course of husbandry,
the interest of the judgment-debtor has been and may collect, gather, harvest,
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Cap.105] CIVIL PROCEDURE CODE
and store the crops and produce Moneys paid to. and realized by, the Fiscal
thereof, but shall not be entitled to
them. 296. Whenever any person, whether Mode of
acting for himself or as an attorney-at-law payment to
court by
(4) He may apply any wood or timber for any other person, has occasion to pay attorneys-at-
on the land to the necessary any sum of money into any court to the attorneys-at-
reparation of a fence, building, or credit of any case, he shall deposit such sum law and other
persons.
other erection which was thereupon of money to the credit ot such case in the [39, Law 20 of
at the time of the sale. appropriate bank account. 1977.]

On confirma- 292. On the sate being confirmed by the 297. (1) Whenever the Fiscal receives Mode of
tion and court and the conveyance executed in payment to
execution of or realizes a sum of money in the course of
pursuance of the sale, the Fiscal or person court by Fiscal
conveyance, the execution of a decree or otherwise, he [39,Law 20 of
Fiscal to in possession of the immovable property shall issue a receipt for "such sum to the 1977.]
deliver sold shall forthwith give possession of the
possession to person making payment, and shall forthwith
grantee. same, together with all the crops and deposit such sum of money to the credit of
produce (if any) collected, gathered, such case in the appropriate bank account.
harvested, and stored subsequent to the sale,
to the grantee in the conveyance ; and if the (2) In this and the preceding section
sale is not confirmed, the Fiscal or his agent "appropriate bank account" means the bank
shall forthwith, if in possession, restore the account of the court to whose credit or
judgment-debtor or any person holding under whose authority such money is paid,
under him to possession of the immovable received, or realized.
property together with all the crops and
produce (if any) collected, gathered,
harvested, and stored whilst the Fiscal or his Arrest and Imprisonment
agent was in possession.
298. (1) Where, after the issue of a writ Issue of
for the execution of a decree for the warrant for
Judgment- 293. If at any time before the execution arrest of debtor
debtor may be of the Fiscal's conveyance the judgment- payment ot money, the court is satisfied on execution of
restrained from the application of the judgment-creditor, decree for
waste. debtor, or any other person in possession of money
the property sold, commits, or threatens to after such inquiry as the court may deem
commit, or makes preparations for necessary, that the judgment-debtor
committing waste thereupon, the court from
which execution issued may, upon the (a) is about to abscond or leave the
application of the purchaser or his agent or jurisdiction of the court with intent
attorney, and proof by affidavit of the facts, to defraud the judgment-creditor or
grant, without notice, an order restraining with intent to obstruct or delay the
the wrongdoer from committing waste upon execution of the decree ; or
the property.
(b) is about to leave Sri Lanka under
Punishment for 294. If the person against whom such an circumstances affording reasonable
committing order is granted commits waste in violation probability that the judgment-
waste. creditor will thereby be obstructed
thereof after the service upon him of the
order, the court, upon proof by affidavit of or delayed in the execution of the
the facts, may grant an order requiring him decree; or
to show cause at a time and place therein
specified why he should not be punished for (c) has, on or after the date of the
a contempt. institution of the action in which
the writ of execution was issued,
And for 295. If upon the return of the order to concealed, transferred or removed
disobeying show cause it satisfactorily appears that the his property or any part thereof
order.
person required to show cause has violated with intent to defraud the
the former order, the court may punish him judgment-creditor or with intent to
in manner provided by law for the obstruct or delay the execution of
punishment of contempts of court. the decree, or has, on or after such

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CIVIL PROCEDURE CODE [Cap.105
date, committed with the like intent decree inclusive of interest, if any, up to the
any act of bad faith in relation to date of the decree but exclusive of any
his property; or further interest and of costs, is less than one
thousand five hundred rupees.
(d) has been guilty of any act whereby
any creditor, other than the 302. No warrant under section 298 or Woman not
judgment-creditor at whose instance notice under section 299 shall be issued liable to arrest
in execution.
the writ of execution was issued, where the judgment-debtor is a woman; and
has been given any undue, no woman shall be arrested or committed to
unreasonable or fraudulent jail in execution of any decree for the
preference; or payment of money or of costs.

(e) has, at any time since the date of the 303. Where a judgment-debtor to whom Warrant to
decree, had sufficient means to pay a notice under section 299 has been issued issue where
debtor fails to
the amount of the decree, or any fails to appear on the day specified in the appear on
part of that amount, and has notice, the court may issue a warrant for his notice.
refused or neglected to pay such arrest.
amount or part thereof; or
304. Subject to the provisions of Execution of
(f) being a trustee or person acting in Chapter XXIII, a judgment-debtor for warrant of
any other fiduciary capacity, has, arrest.
whose arrest a warrant has been issued
when ordered to pay by a court, under section 298 or section 303 may be
made default in the payment of any arrested at any hour, and on any day, and in
sum in his possession or under his any place, and shall thereupon, as soon as
control, practicable, be brought before the court,

the court may, subject to the other 305. Where a judgment-debtor who has Officer
provisions of this Chapter, issue a warrant been arrested on a warrant pays the amount effecting arrest
for the arrest of the judgment-debtor and to release
of the decree in execution of which he is debtor on
for his production in court with a view to arrested, and the costs of the arrest, to the payment of
his committal to jail in execution of the officer arresting him, such officer shall at amount of
decree. decree and
once release him from custody. costs of arrest.
(2) A decree for the payment of costs
306. Where a judgment-debtor is Discharge of
only shall, for the purposes of the debtor where
brought before the court after arrest on a
application of the provisions of subsection amount of
warrant or appears in court in pursuance of decree and
(1), be deemed to be a decree for the
a notice issued under section 299, and costs of arrest
payment of money. paid into court.
either
Issue of notice 299. The court may, in its discretion,
on debtor as instead of issuing a warrant under section (a) pays into court the amount of the
alternative to decree and, if he has been brought
warrant. 298, issue a notice on the judgment-debtor
calling upon him to show cause, on a date before the court under a warrant,
to be specified in the notice, why he should the costs of the arrest, or
not be committed to jail in execution of the
decree referred to in that section. (b) gives security for the payment of the
same to the satisfaction of the
Application for 300. Every application under section 298 judgment-creditor,
warrant to be shall be made by petition supported by
made by
petition and affidavit; and it shall not be necessary to The court shall release him from arrest or
affidavit. name the judgment-debtor as respondent to discharge him from such notice, as the case
any such application. may be. If such payment is not made or if
such security is not given, the court shall
No arrest for 301. No warrant under section 298 or call upon the judgment-debtor to show
sum under notice under section 299 shall be issued in cause why he should not be committed to
Rs. 1,500.
[40, Law 20 of any case in which the sum awarded in the jail.
1977.]
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Cap.105] CIVIL PROCEDURE CODE
Debtor who 307. Where the judgment-debtor, on 310. (1) Where the judgment-debtor Debtor to be
has no cause to being called upon to show cause under committed to
show to be desires to show cause why he should not be
jail or to give
committed to section 306, has no cause to show, the court committed to jail, the court may appoint a security for
Jail. shall commit him to jail. date for an inquiry and may, pending such appearance
inquiry, order the judgment-debtor to be pending
Debtor who 308. Where the Judgment-debtor, on detained in prison or take sufficient security
inquiry.
has cause to being called upon to show cause under
show to be from him that he will appear in court when
discharged or section 306, proves to the satisfaction of the called upon.
committed to court
Jail after
inquiry. (2) A judgment-debtor who is not
(a) that any material allegation of fact, detained in prison pending the inquiry may
made in the affidavit of the be arrested on a warrant issued by the court
judgment-creditor or given in at any time for the purposes of such inquiry
evidence before the court prior to or with a view to his committal to jail.
the issue of the warrant or notice, in
consequence of which such warrant (3) The inquiry referred to in subsection
or notice was issued, was untrue or (1) may be adjourned from time to time by
incorrect; or order of the court.

(b) that for any other reason the 311. Where a judgment-debtor is Issue of
warrant or notice should not have committed to Jail, the court shall issue a warrent of
committal to
been issued, or was irregularly warrant substantially in the form No. 61 m jail.
issued in the first instance ; the First Schedule.

312. Where a judgment-debtor has been Debtor


he shall, if under arrest, be released or, if he released after arrest on a warrant or discharged
under section
has appeared on notice, be discharged from discharged from a notice under section 306 306 or section
such notice; but if he fails or is unable to or section 308, no further proceedings shall 308 not to be
furnish such proof the court shall commit be taken as hereinbefore provided with a rearrested.
him to jail. view to the committal to jail of that
judgment-debtor in execution oi the decree
in respect of which such warrant or notice
Provided that if, on the date on which the was issued.
Judgment-debtor is brought or appears
before the court, the court is satisfied that a 313. No judgment-debtor shall be Sufficient
interim
warrant for the arrest of the judgment- arrested in execution of a decree unless and subsistence
debtor may be issued on any ground other until the decree-holder pays into court such money to be
than that on which the warrant or notice sum as the Judge thinks sufficient for the deposited
before arrest.
was issued in the first instance, the court subsistence of the judgment-debtor from the
may commit the judgment-debtor to jail. time of his arrest until he can be brought
before the court, and, where the writ is to be
executed in another district, such further
Written 309. Where a judgment-debtor contends sum as the Judge thinks sufficient to cover
statement to be that any material allegation of fact, made in the expenses of his transport to the court
filed by debtor
who desires to the affidavit of the judgment-creditor or issuing the writ.
show cause. given in evidence before the court prior to
the issue of the warrant or notice, is untrue 314. And when a judgment-debtor is Subsistence
allowance
or incorrect, he shall file in court a written committed to jail in execution of a decree, during
statement specifying which of the allegations the court shall fix for his subsistence such imprisonment
in such affidavit or in such evidence is monthly allowance as he may be entitled to to be fixed on
commitment.
impugned as untrue or incorrect; and where at rates to be fixed by order of Government
a judgment-debtor contends that the from time to time, as occasion shall require,
warrant or notice should not have been
issued or was irregularly issued, he shall file 315. (1) The monthly allowance fixed Allowance to
be paid
in court a written statement of the grounds by the court shall be supplied to the Fiscal monthly in
on which such contention is based. by the party on whose application the advance.

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CIVIL PROCEDURE CODE [Cap. 105
decree has been executed by monthly (4) Any additional sum for the payment
payments in advance before the first day of of which an order is made under this section
each month. shall be supplied to the Fiscal by the party
on whose application the decree has been
(2) The first payment shall be made for executed, in the manner and at the time
such portion of the current month as specified in the order of the court.
remains unexpired before the judgment-
debtor is committed to jail. 316. Sums of money disbursed by the Disbursements
decree-holder under section 315 or section by decree-
holder to be
315A shall be deemed to be costs in the
Power to vary 315A. (1) Where a judgment-debtor action:
deemed costs.
allowance or
additional who hasbeen commited to jal is, with the
payments. approval of the Commissioner of Prisons, Provided that the judgment-debtor shall
either given any special diet on medical not be detained in jail or arrested on
advice or admitted to any hospital for account of any sum so disbursed ;
examination or treatment, and the monthly
allowance fixed under section 314 for the Provided further, that where at the time
subsistence of that judgment-debtor is of the discharge of the judgment-debtor
insufficient to meet the cost of such special from jail there remains any unexpended
diet, examination or treatment, the court balance out of the sum so disbursed, such
may by order, on application made by balance shall be repaid by the Fiscal to the
the Fiscal, and after hearing such decree-holder and shall not be deemed to be
representations as may be made by the party costs in the action.
on whose application the decree has been
executed and such other evidence as the 317. (1) The judgment-debtor shall be When debtor
court may deem necessary discharged from jail entitled to be
discharged
from jail.
(a) vary the monthly allowance fixed (a) on the decree being fully satisfied ; or
under section 314, and specify the
period during which the allowance (b) at the request of the person on
so varied shall be payable, or whose application he has been
imprisoned ; or
(b) fix such additional sum as may, in
the opinion of the court, be (c) on such person omitting to pay the
necessary to meet the cost of such allowance as hereinbefore directed ;
examination or treatment in or
hospital and all expenses incidental
thereto or connected therewith, and (d) if the Judgment-debtor be declared
may specify in that order the time an insolvent, and an order in
and manner of payment of such insolvency is made by the District
additional sum. Court protecting him from arrest;
or
(2) Any order made by the court under (e) when the term of his imprisonment
subsection (1) may at any time be varied or as limited by section 318 is fulfilled :
cancelled by the court by a further order, on
application made by the Fiscal or by the Provided that in the first, second, third,
party on whose application the decree has and fourth cases mentioned in this
been executed, and after such inquiry as the subsection the judgment-debtor shall not be
court may deem necessary. discharged without the order of the court.

(3) The provisions of section 315 shall (2) A judgment-debtor discharged under
apply to the monthly allowance as varied this section is not thereby discharged from
under this section, in like manner as those his debt, but he cannot be rearrested under
provisions apply to the monthly allowance the decree in execution of which he was
originally fixed by the court. imprisoned.

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Limit of 318. No person shall be imprisoned in judgment-debtor is made respondent, direct
imprisonment. execution of a decree for a longer period a writ of execution by seizure and sale of the
than six months. judgment-debtor's property, or a warrant
for the arrest of the judgment-debtor, or
Endorsement 319. The Fiscal shall endorse upon the both, to issue to the Fiscal.
on the warrant. warrant of arrest the day on and the manner
in which it was executed, and if the latest 322. The amount of money directed to Amount to be
day specified in the warrant for the return be levied in the writ of execution by seizure levled and
manner of
thereof has been exceeded, the reason of the and sale issuing under the preceding section execution.
delay; or if it was not executed, the reason shall be the amount of pecuniary loss as
why it was not executed, and shall return nearly as the court can estimate it, which is
the warrant with such endorsement to the occasioned to the Judgment-creditor by
court. reason of the judgment-debtor's default in
making delivery of the specific movable or
(B) share thereof according to the terms of the
decree, and which the court shall award by
DECREES FOR DELIVERY OF MOVABLE
way of compensation to the judgment-
PROPERTY
creditor by the order directing the writ to
issue ; and the execution of this writ, and of
Application for 320. If the decree is for any specific the warrant of arrest issuing under the same
execution of movable or for any share in a specific
decree for section, shall be effected according and
delivery of movable, application to the court for subject to the rules prescribed for the writ of
movable execution of the decree by seizure and execution and warrant of arrest issued for
properly, how delivery may be made by the judgment-
to be made. the enforcement of decrees falling under
creditor in the manner and according to the head (A).
rules prescribed for execution of decrees
under head (A) so far as the same are
(C)
applicable; and if the court on such
application is satisfied that the judgment- DECREES FOR POSSESSION OF IMMOVABLE
creditor is entitled to obtain execution of PROPERTY
Form of writ. the decree, it shall direct a writ of execution
to issue to the Fiscal in the form No. 62 in 323. If the decree or order is for the Application for
the First Schedule. recovery of possession of immovable excution of
decree for
property or any share thereof by the delivery of
Fiscal to 321. (I) Upon receiving the writ the judgment-creditor, or if it directs the immovable
procure Fiscal or his officer shall as soon as property, how
delivery judgment-debtor to yield or deliver up
reasonably may be repair to the dwelling to be made.
thereunder. possession thereol to the judgment-creditor,
house or place of residence of the judgment- application to the court for execution of the
debtor, and there showing him the writ shall decree may be made by the judgment-
demand delivery of the movable or, if creditor in the manner, and according to the
practicable, the share thereof specified rules, prescribed for execution of decrees
therein, and on his failing to comply with under head (A), so far as the same are
his demand, the Fiscal or his officer shall, if applicable; and if the court on such
possible, seize the said specific movable or application is satisfied that the judgment-
share thereof, and deliver the same to the creditor is entitled to obtain execution of
Judgment-creditor or to the person the decree, it shall direct a writ of execution
authorized by him to receive it. to issue to the Fiscal in the form No, 63 in Form of writ.
the First Schedule.
Procedure on (2) If the judgment-debtor fails to
default. comply with the Fiscal's demand, and if the 324. (1) Upon receiving the writ the Fiscal how to
Fiscal is unable to obtain for the judgment- Fiscal or his officer shall as soon as proceed
, . , , , thereunder.
creditor delivery of the specific movable or reasonably may be repair to the ground, and
share thereof mentioned in the writ, then the there deliver over possession of the property
court upon being satisfied of these facts described in the writ to the judgment-
may, on application made to it by the creditor or to some person appointed by
judgment-creditor by petition, to which the him to receive delivery on his behalf, and if

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CIVIL PROCEDURE CODE [Cap.105
need be by removing any person bound by (2) When a petition under subsection (1) [9,53 of
the decree who refuses to vacate the is presented, the court may, upon the 1980]
property: application of the judgment-creditor made
by motion ex parle, direct the Fiscal to
Provided that as to so much of the publish a notice announcing that the Fiscal
property, if any, as is in the occupancy of a has been resisted or obstructed in delivering
tenant or other person entitled to occupy possession of such property, or that the
the same as against the judgment-debtor, judgment-creditor has been hindered in
and not bound by the decree to relinquish taking complete and effectual possession
such occupancy, the Fiscal or his officer thereof or ousted therefrom, as the case may
be, by the judgment-debtor or other person,
shall give delivery by affixing a copy of the
and calling upon all persons claiming to be
writ in some conspicuous place on the
in possession of the whole or any part of
property and proclaiming to the occupant such property by virtue of any right or
by beat of tom-tom, or in such other mode interest and who object to possession being
as is customary, at some convenient place, delivered to the judgment-creditor to notify
the substance of the decree in regard to the their claims to court within fifteen days of
property; and the publication of the notice-
Provided also that if the occupant can be (3) The Fiscal shall make publication by
found, a notice in writing containing the affixing a copy of the notice in the language
substance of such decree shall be served of the court, and, where the language of the
upon him, and in such case no proclamation court is also Tamil, in that language, in
need be made. some conspicuous place on the property and
proclaiming in the customary mode or in
(2) The cost (to be fixed by the court) of such manner as the court may direct, the
such proclamation shall in every case be contents of the notice. A copy of such notice
prepaid by the judgment-creditor. shall be affixed to the court-house and if the
court so orders shall also be published in
Resistance to Execution of Proprietary any daily newspaper as the court may direct,
Decrees
(4) Any person claiming to be in
Procedure in 325. (1) Where in the execution of a possession of the whole of the property or
event of decree for the possession of movable or part thereof as against the judgment-
resistance to creditor may file a written statement of his
execution of immovable property the Fiscal is resisted or
claim within fifteen days of the publication
writ or delivery obstructed by the judgment-debtor or any
of properly. of the notice on such property, setting out
other person, or where after the officer has
[41, Law 20 of his right or interest entitling him to the
1977.] delivered possession, the judgment-creditor present possession of the whole property or
is hindered or ousted by the judgment- part thereof and shall serve a copy of such
debtor or any other person in taking statement on the judgment-creditor. The
complete and effectual possession thereof, investigation into such claim shall be taken
and in the case of immovable property, up along with the inquiry into the petition
where the judgment-creditor has been so in respect of the resistance, obstruction,
hindered or ousted within a period of one hindrance or ouster complained of, after
year and one day, the judgment-creditor due notice of the date of such investigation
may at any time within one month from the and inquiry has been given to all persons
date of such resistance or obstruction or concerned.
hindrance or ouster, complain thereof to the
court by a petition in which the Judgment- 326. (1) On the hearing of the matter Punishment of
debtor and the person, if any, resisting or of the petition and the claim made, if any, person
obstructing.
obstructing or hindering or ousting shall be the court, if satisfied [10,53 of
named respondents. The court shall 1980.]
thereupon serve a copy of such petition on (a) that the resistance, obstruction,
the parties named therein as respondents hindrance or ouster complained of
and require such respondents to file was occasioned by the. judgment-
objections, if any, within such time as they debtor or by some person at his
may be directed by court. instigation or on his behalf;

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Cap.105] CIVIL PROCEDURE CODE
(b) that the resistance, obstruction, 328. Where any person other than the Court shall
hindrance or ouster complained of judgment-debtor or a person in occupation investigate
dispute if bona
was occasioned by a person other under him is dispossessed of any property in fide claimant
than the judgment-debtor, and that execution of a decree, he may, within fifteen be dispossessed
the claim of such person to be in in effecting the
days of such dispossession, apply to the execution.
possession of the property, whether court by petition in which the judgment- [41, Law 20 of
on his own account or on account creditor shall be named respondent 1977.]
of some person other than the complaining of such dispossession. The
judgment-debtor, is frivolous or court shall thereupon serve a copy of such
vexatious; or petition on such respondent and require
such respondent to file objections, if any,
(c) that the claim made, if any, has not within fifteen days of the service of the
been established, petition on him. Upon such objections being
filed or after the expiry of the date on which
such objections were directed to be filed, the
shall direct the judgment-creditor to be put court shall, after notice to all parties
into or restored to the possession of the concerned, hold an inquiry. Where the court
property and may, in the case specified in is satisfied that the person dispossessed was
paragraph (a), in addition sentence the in possession of the whole or part of such
judgment-debtor or such other person to property on his own account or on account
imprisonment for a period not exceeding
of some person other than the judgment-
thirty days,
debtor, it shall by order direct that the
petitioner be put into possession of the
[41, Law 20 of (2) Where any claim is established only property or part thereof, as the case may be.
1977.] to a share of any property, it shall be
competent to the court in any order made
under the preceding subsection to direct that 329. No appeal shall lie from any order Effect of order
the judgment-creditor be put into or made under section 326 or section 327 or made under
section 326 or
restored to possession of the share of the section 328 against any party other than the section 327 or
property to which no claim has been judgment-debtor. Any such order shall not section 328.
established. [41, Law 20
bar the right of such party to institute an of 1977.]
action to establish his right or title to such
[4l, Law 20 of (3) The court may make such order as property.
1977.] to the costs of the application, the charges
and expenses incurred in publishing the
notice and the hearing and the reissue of 330. Any subsequent resistance or How
obstruction to the execution of the writ or subsequent
writ as the court shall deem meet. obstruction to
hindrance to the possession or ouster of the be dealt with.
judgment-creditor within a year and a day [11,53 of 1980.]
If resistance be 327. Where the resistance or obstruction
made by bona or hindrance or ouster is found by court to of the delivery of possession
fide claimant in
possession, have been occasioned by any person other
court to than the judgment-debtor, claiming in good
dismiss the faith to be in possession of the whole of (a) by the judgment-debtor or any other
petition. respondent to the petition under
[4t,Law20of such property on his own account or on
1977.] account of some person other than the section 325, or
judgment-debtor by virtue of any right or
interest, or where the claim notified is found
by the court to have been made by a person (b) where a notice under subsection (2)
claiming to be in possession of the whole of of section 325 has been duly
such property on his own account or on published, by any person
account of some person other than the whosoever,
judgment-debtor, by virtue of any right or
interest, the court shall make order
dismissing the petition. shall be punishable as a contempt of court.

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CIVIL PROCEDURE CODE [Cap.105
may be in the following form: "C. D.,
Judge of the court of . . . . . . . . . . (as the
DECREES FOR EXECUTION OF CONVEYANCE case may be), for A. B., in an action by E.
OR TRANSFER OF PROPERTY F. against A. B.", or in such other form as
the Supreme Court may from time to time
Application for 331. If the decree is for the execution of prescribe, and shall have the same effect as
enforcement of a conveyance, or for the endorsement of a the execution of the" conveyance or
decree for
execution of negotiable instrument, and the judgment- endorsement of the instrument by the party
any debtor neglects or refuses to comply with ordered to execute or, endorse the same, and
conveyance, the decree, the decree-holder may prepare such conveyance shall be binding and of
how to be
made. the draft of a conveyance or endorsement in force though not executed before a notary
accordance with the terms of the decree, and public. And the court shall deliver the
apply to the court by petition, not naming a original of such conveyance to the decree-
respondent, to have the said draft served on holder, and shall transmit the duplicate to
the judgment-debtor. the Registrar of Lands for the district in
which the land is situate, in like manner as
Service of the 332. (1) The court shall thereupon now is or shall be required to be done by
draft cause the draft and a copy of the petition to notaries in respect of deeds executed before
conveyance on
judgment- be served on the judgment-debtor in manner them.
debtor. hereinbefore provided for serving a
summons, together with a notice in writing 333A. In sections 331, 332, and 333 the Meaning of
stating that his objections, if any, thereto, expression tt conveyance " includes conveyance m
sections 331,
shall be made within such time (mentioning " contract or other document". 332, and 333.
it) as the court fixes in this behalf, and will
come on before the court to be considered (E)&(F)
and determined on a day to be named in the
notice for that purpose. MANDATORY AND RESTRAINING DECREES

(2) The decree-holder may also tender a 334. When a decree or order falling Application for
duplicate of the draft to the court for under either of the heads (E) or (F) has been enforcement of
execution, supplying a stamp of the proper mandatory
passed, and the judgment-debtor has had an decrees, how to
amount if a stamp is required by law. opportunity of obeying the decree or order, be made.
but has wilfully failed to obey it, application
(3) On proof of such service the court,
to the court for execution or enforcement of
or such officer as it appoints in this behalf,
the decree or order may be made by the
shall on the day appointed for the
judgment-creditor by petition to which the
consideration of objections, if no objections
judgment-debtor shall be made respondent;
are made, proceed to execute the duplicate
and which shall set out the damage, if any,
so tendered, or may, if necessary, alter the
caused to the judgment-creditor by the
same, so as to bring it into accordance with
disobedience of the judgment-debtor to the
the terms of the decree, and execute the
decree or order.
decree so altered.

Objections to But in the event of the judgment-debtor And if the court on the hearing of such
draft. or any other party on that day objecting to application is satisfied that the judgment-
the draft so served, provided the objections creditor is entitled to obtain execution or
have been stated in writing and filed within enforcement of the decree or order, it shall
the time fixed therefor, the court shall direct a writ of execution by seizure and sale Court may
of the judgment-debtor's property, or a issue writ of
proceed to hear and determine such execution by
objections, and shall thereupon pass such warrant for the arrest of the judgment- seizure and
order as it thinks fit, and execute, or alter debtor, or both, to issue to the Fiscal. sale.
and execute, the duplicate in accordance
therewith. 335. The amount of money directed to Amount to be
be levied on the writ of execution issuing levied under
writ.
Execution of 333. The execution of a conveyance or under the preceding section shall be the
the conveyance the endorsement of a negotiable instrument amount of pecuniary loss, if any, as nearly
by the court.
by the court under the last preceding section as the court can estimate it, which is

V/I23
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occasioned to the judgment-creditor by (a) such writ may at any time, before its
reason of the judgment-debtor's default in expiration, be renewed by the
obeying the decree or order, and which the judgment-creditor for one year
court shall award by way of compensation from the date of such renewal and
to the judgment-creditor by the order so on from time to time ; or
directing the writ to issue. And the
execution of this writ and of the warrant of (b) a fresh writ may at any time after the
arrest issuing under the same section shall expiration of an earlier writ be
be effected according, and subject, to the issued,
rules prescribed for the writ of execution
and warrant of arrest issued for the till satisfaction of the decree is obtained.
enforcement of decrees falling under head
338. (1) If a decree has been passed Application by
(A).
jointly in favour of more persons than one, one of several
any one or more of such persons, or his or decree-holders
for execution
GENERAL PROVISIONS
their legal representatives, may apply for the of the decree
execution of the whole decree for the benefit for the benefit
Discretion of 336. The court may in its discretion of them all, or, where any of them has died, of all.
court to issue refuse to issue execution at the same time
execution. for the benefit of the survivors and those
against the person and property of the claiming under the deceased. The
judgment-debtor in cases when the application for this purpose shall be made
judgment-creditor is entitled to apply for by petition to which the co-decree-holders
both simultaneously. or their representatives as well as the
judgment-debtor shall be respondents.
When 337. (1) No application (whether it be
subsequent the first or a subsequent application) to (2) If the court sees sufficient cause for
application
may be made execute a decree, not being a decree allowing the decree to be executed on an
for execution granting an injunction, shall be granted application so made, it shall pass such order
of decree partly after the expiration of ten years from as it deems necessary for protecting the
sat is tied - interests of the persons who have not Joined
[12,53 of
1980.] (a) the date of the decree sought to be in the application.
executed or of the decree, if any, on
appeal affirming the same; or (3) For the purposes of this Chapter- [42, Law 20 of
1977.]

(b) where the decree or any subsequent (a) " estate" means the gross value of
order directs the payment of money the estate of the deceased ; and
or the delivery of property to be
(b) " legal representative" means an
made on a specified date or at
executor or administrator or in the
recurring periods, the date of the
case of an estate below the value of
default in making the payment or
delivering the property in respect of twenty thousand rupees, the next of
which the applicant seeks to execute kin who have adiated the
decree. inheritance:

(2) Nothing in this section shall prevent Provided, however, that in the event of
any dispute arising as to who is the legal
the court from granting an application for
representative, the provisions of section 397
execution of a decree after the expiration of
the said term of ten years, where the shall, mutatis mutandis, apply.
judgment-debtor has by fraud or force
prevented the execution of the decree at 339. (1) If a decree is transferred by Application by
assignment in writing or by operation of law assignee of a
some time within ten years immediattly decree for
from the decree-holder to any other person, execution
before the date of the application.
the transferee may apply for its execution by thereof, how to
petition, to which all the parties to the be made.
[12,53 of (3) Subject to the provisions contained action or their representatives shall be made
1980.] in subsection (2), a writ of execution, if respondents, to the court which passed it,
unexecuted, shall remain in force for one and if on that application that court thinks
year only from its issue, but fit, the transferee's name may be substituted
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CIVIL PROCEDURE CODE [Cap.105
for that of the transferor in the record of the Provided also that he report to the court
decree, and the decree may be executed in in his return to the writ of execution, or
the same manner and subject to the same sooner, the cause for which the adjournment
conditions as if the application were made was made.
by such decree-holder:
343. (1) The court may for sufficient Stay of
Provided that where the decree has been cause stay execution proceedings at any proceedings
and
transferred by operation of law, the stage thereof, and make order for adjournment of
transferor need not be made respondent to adjournment of a sale. sale by court.
the petition;
(2) The application to the court to stay
Provided also that where a decree against proceedings shall be made by petition, to
several persons has been transferred to one which all persons interested in the matter of
of them, it shall not be executed against the the execution shall be made parties, and no
others. such order shall be made until after
payment of all Fiscal's fees then due.
(2) In the case where one decree of court
is seized in execution of another decree, the 344. All questions arising between the All questions
judgment-creditor of the second decree is in parties to the action in which the decree was arising in
execution to be
the situation of assignee of the judgment- passed, or their legal representatives, and determined by
creditor of the decree which is seized, relating to the execution of the decree, shall order of court
provided the latter person is identical with be determined by order of the court and not by
separate
the judgment-debtor of the decree in executing the decree, and not by separate action.
execution of which the seizure is made. action.

Transferee 340. Every transferee of a decree shall 345. (1) If cross decrees between the Procedure
bound by same parties for the payment of money be where there are
hold the same subject to the equities (if any) cross decrees
equities. produced to the court, execution shall be
which the judgment-debtor might have between the
enforced against the original decree-holder. taken out only by the party who holds a parties.
decree for the larger sum, and for so much
Legal 341. (1) If the judgment-debtor dies only as remains after deducting the smaller
representative before the decree has been fully executed, sum, and satisfaction for the smaller sum
of deceased shall be entered on the decree for the larger
debtor, how the holder of the decree may apply to the
made liable. court which passed it, by petition, to which sum as well as satisfaction on the decree for
the legal representative of the deceased shall the smaller sum.
be .made respondent, to execute the same
against the legal representative of the (2) If the two sums be equal, satisfaction
deceased. shall be entered up on both decrees.

Explanation 1.The decrees contemplated by this


and extent of (2) Such representative shall be liable section are decrees capable of execution at
liability. only to the extent of the property of the the same time and by the same court.
deceased which has come to his hands and
has not been duly disposed of; and for the Explanation 2.This section applies where either
purpose of ascertaining such liability, the party is an assignee of one of the decrees and
as well in respect of judgment-debts due by
court executing the decree may on the the original assignor as in respect of
application of the decree-holder compel the judgment-debts due by the assignee himself.
said representative to produce such accounts
as it thinks fit. Explanation 3.This section does not apply
unless

Fiscal may 342. The Fiscal may in his discretion (a) the decree-holder in one of the actions in which
adjourn sale- adjourn a sale: the decrees have been made is the judgment-
debtor in the other and each party fills the
same character in both actions, and
Provided that the date to which the sale is
adjourned is published in the same manner (b) the sums due under the decrees are definite and
as was the original notice of sale; and unconditional.

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Illustrations 348. Whenever a person has before the Execution
passing of a decree in an original action against surety.
(a) A holds a decree against B for one thousand become liable as surety for the performance
rupees. B holds a decree against A for the of the same or of any part thereof, the
payment of one thousand rupees in case A decree may be executed against him to the
fails to deliver certain goods at a future day. extent to which he has rendered himself
B cannot treat his decree as a cross decree liable in the same manner as a decree may
under this section. be executed against a judgment-debtor,
upon application made by the judgment-
(b) A and B, co-plaintiffs, obtain a decree for one creditor to the court for that purpose by a
thousand rupees against C; and C obtains a petition to which the person sought to be
decree for one thousand rupees against B. made liable as surety shall be named
C cannot treat his decree as a cross decree
respondent.
under this section.

349. (1) If any money payable under a Decree-holder


(c) A obtains a decree against B for one thousand decree is paid out of court, or the decree is to certify
rupees. C, who is a trustee for B, obtains a payment to the
otherwise adjusted in whole or in part to the court.
decree on behalf of B against A for one
satisfaction of the decree-holder, he shall
thousand rupees. B cannot treat C's decree
as a cross decree under this section.
certify such payment or adjustment to the
court whose duty it is to execute the decree.

Procedure 346. (1) When two parties are entitled


where parties (2) The judgment-debtor may also by
under the same decree to recover from each
recover petition inform the court of such payment
different other sums of different amounts, the party
or adjustment, and apply to the court to
amounts under entitled to the smaller sum shall not take
same decree. issue a notice to the decree-holder to show
out execution against the other party; but
cause on a day to be fixed by the court why
satisfaction for the smaller sum shall be
such payment or adjustment should not be
entered on the decree.
recorded as certified. And if after due
service of such notice the decree-holder fails
(2) When the amounts are equal, neither to appear on the day fixed, or having
party shall take out execution, but appeared fails to show cause why the
satisfaction for each sum shall be entered on payment or adjustment should not be
the decree. recorded as certified, the court shall record
the same accordingly.

Proceedings 347. In cases where there is no (3) No such payment or adjustment


where one year
hat. elapsed
respondent named in the petition of shall be recognized by any court unless it
from date of application for execution, if more than one has been certified as aforesaid.
decree. year has elapsed between the date of the
decree and the application for its execution,
350. (1) Money, which in the course of Concurrence
the court shall cause the petition to be and preference.
an action or in satisfaction of a decree has
served on the Judgment-debtor, and shall [43, Law 20 of
been paid into and received by the court 1977.]
proceed thereon as if he were originally shall be paid to the person entitled to the
named respondent therein:
same, on his ex parte application.

Provided that no such service shall be (2) Where


necessary if the application be made within
one year from the date of any decree passed (a) before money realized in execution
on appeal from the decree sought to be of a decree, other than money
executed or from the date of the last order received or seized by the Fiscal
against the party, against whom execution is from the judgment-debtor in
applied for, passed on any previous payment of the amount of the writ
application for execution. before the sale in execution of any

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CIVIL PROCEDURE CODE [Cap.105
property belonging to him or being upon, refer the parties to a separate action
current coin or currency notes and may continue to hold the money or any
seized by the Fiscal, is paid to the part thereof pending the decision of the
decree-holder in the action in which separate action.
the execution issued, or
351. Where property not in the custody Where the
(b) before money other than money of any court has been seized in execution of same property
is seized in
realized in execution of a decree is decrees of more courts than one, the court execution of
paid to a judgment-creditor seizing which shall receive or realize such property decrees of
such money, and shall determine any claim thereto and more courts
than one.
any objection to the seizure thereof shall be
notice is given to the court of any claim to the court of highest grade, or, where there is
such money no difference in grade between such courts,
the court under whose decree the property
(i) by a person claiming to be entitled to was first seized.
preferential payment by reason of
any mortgage, charge or lien in his 352. (1) Whenever assets are realized Where several
favour; by sale or otherwise in execution of a decree-holders
are entitled to
decree, and more persons than one have share rateably
(ii) by a person holding a decree against prior to the realization, applied to the court in proceeds of
the same judgment-debtor, whether by which such assets are held for execution a sale of
debtor's
entered by the same or another of decrees for money against the same property.
court; or judgment-debtor, and have not obtained
satisfaction thereof, the assets, after
(iii) by the Fiscal in respect of claims of deducting the costs of the realization, shall
other writ-holders whose writs he be divided rateably among all such persons :
had in his hands at the time of the
sale in cases where a sale is carried Provided that, when any property is sold
out by him in execution, which is subject to a mortgage or charge, or
for any other reason remains subject to a
the money shall first be paid to the persons, mortgage or charge notwithstanding the
if any, entitled to receive payment sale, the mortgagee or incumbrancer shall
preferentially, and shall next be rateably not as such be entitled to share in any
distributed among the decree-holders in the proceeds arising from such sale.
action or the judgment-creditor seizing such
money and all other decree-holders whose (2) If all or any portion of the money Share of such
claims have been notified to court under realized in execution of a decree is in the proceeds paid
to wrong
paragraphs (ii) and (iii) above. distribution made under the last preceding person may be
section paid to a person not entitled to recovered by
(3) Before the court makes order under receive the same, any person who is so action by
person entitled.
the preceding subsection, notice shall be entitled may sue such person to compel him
given to the parties to the action and all to refund the money.
persons whose claims have been notified to
court under that subsection that the court 353. Every order made by a court, in Order for
will on a day to be specified in the notice any action or proceeding between parties, payment of
money
proceed to hear and determine the claims to for payment of money not being a fine, shall enforced as a
the money in court. have the effect of a decree for the payment decree.
of money, and on default of payment
(4) On the day so specified or on some according to its terms shall be enforceable
other day to which the court may for upon the application of the party at whose
sufficient cause adjourn the hearing, the instance it was made in like manner as a
court shall proceed to hear and adjudicate decree for money.
upon the claims made and make such order
as the justice of the case may require, or the 354. In the event of an order being made Fine imposed
court may, if in its opinion any claim cannot by the civil court under the provisions of by civil court
be conveniently heard and adjudicated this Ordinance for the payment of a fine, how to be
levied.

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and in the event of the fine not being paid to such court to issue such processes, notices
into court at the time appointed therefor by and orders for service to the Fiscal of any
the order, the amount of the said fine shall other court of like jurisdiction within the
be levied by the Fiscal from the property of local limits of the jurisdiction of which such
the person against whom the order was processes, notices and orders have to be
made; and the court shall forthwith, on the served.
occurrence of the default, of its own motion
issue its writ or precept to the Fiscal for this 357. It shall be the duty of every Fiscal, Fiscal to
purpose. upon receiving any writ, or warrant, or execute and
serve processes
precept directed to him by any court, by of court.
CHAPTER XXIII himself or by his officers, to execute such
writ or warrant, and to serve every process,
OF SERVICE OF PROCESS notice, or order conveyed to him under such
precept according to the exigency of the
Writs or 355. Writs or warrants to levy money, writ, warrant, or precept.
warrants to be or to take any person in arrest, or to detain
usually issued 358. All proceedings for attachment, Proceedings
to the Fiscal any person in custody, or to deliver
contempt, or otherwise against a Fiscal or against Fiscal
for execution, possession of property, shall usually be for contempt,
[44 Law 20 of directed to the Fiscal of the court issuing the
Deputy Fiscal for neglect or refusal to serve &c.
process or to comply with any order or [46, Law 20 of
writ or warrant; but any such writ or
direction of the court in connection 1977.]
warrant may be issued to any grama seva
therewith shall, where such Fiscal or Deputy
niladhari, constable or officer of police. And
Fiscal is the Fiscal or Deputy Fiscal of a
where any such writ or warrant is issued by
court other than that of the court issuing
the Supreme Court, the Court of Appeal, or
such process, order, or direction, be referred
by any court within the local limits of whose
by such court to the court to which such
jurisdiction the party against whom it is
Fiscal or Deputy Fiscal is attached, and
issued does not actually and voluntarily
shall be dealt with by the latter court as if
reside, or carry on business, or personally
such neglect or refusal related to its own
work for gain, or is not possessed of
process or orders.
property sufficient to satisfy the same, such
writ or warrant shall be issued to the Fiscal 359. It shall be the duty of every grama Grama seva
of a court within the jurisdiction of which seva niladhari, constable, or officer of niladhari or
such party does actually and voluntarily constable to
police, upon receiving any writ or warrant execute or
reside or carry on business, or personally or precept directed to him by any court, to serve processes
work for gain, or is possessed of such execute such writ or warrant and to serve in his own
property. limits only.
every process, notice, or order conveyed to
him under such precept according to the
To whom may 356. All processes of court not being exigency of the writ, warrant, or precept in
all processes of writs, or warrants directed to the Fiscal or
court not being any place within the district or division in
writs or other person for execution, and all notices which such grama seva niladhari, constable,
warrent be
directed and orders required by this Ordinance to be or officer is empowered to act.
[45, Law 20 of given to or served upon any person, shall,
1977.]
unless the court otherwise directs, be issued 360. It shall be competent to any Fiscal Endorsement
for service to the Fiscal of the court issuing to whom any writ, warrant, or precept has of process by
Fiscal.
such processes, notices, or orders under a been directed under the foregoing sections, [47, Law 20 of
precept of that court as is hereinbefore and to the Fiscal's officer to whom the 1977.]
provided for the case of the summons to the Fiscal may have entrusted such writ,
defendant in an action. And the provisions warrant, or precept for execution, to
of this Ordinance from section 59 to section endorse thereon the name of any grama seva
70, both inclusive, relative to the service of niladhari, constable, or officer of police;
such summons shall apply, so far as is and such endorsement shall operate in the
practicable, to the service of such processes, case of a grama seva niladhari, constable or
notices, and orders. Whenever it becomes officer of police to constitute the person
necessary to serve any such processes whose name is endorsed an officer of the
outside the local limits of the jurisdiction of Fiscal for the purpose of executing such
the court issuing them, it shall be competent writ, or warrant, or precept.

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CIVIL PROCEDURE CODE [Cap.105
Duty of every 361. Every Fiscal and Fiscal's officer aggrieved, the decree shall be passed in
Fiscal to assist. shall, and every grama seva niladhari, favour of the plaintiff for such amount, but
[48, Law 20 of
1977.] constable, or officer of police shall, within he shall be condemned to pay all costs.
the local limits in which he is empowered to
act, afford his aid and assistance to anyone 363. The seizure or sale of property, What acts not
charged under the foregoing sections with which does not belong to the person whose within last
the duty of executing any writ or warrant, section.
property is authorized by a writ of levy to
or of serving any process, notice, or order of be seized and sold, shall not be deemed to
court. be an act done by or in the course of, nor an
immediate consequence of, the execution of
Every writ or 362. Every mandate, writ, warrant, such writ within the meaning of the first
process to be precept, or other process issuing from the paragraph of the last preceding section. But
valid for the
whole of Sri Supreme Court, the Court of Appeal, or no person charged as aforesaid shall be
Lanka. from any District Court or Family Court or liable in damages for any such seizure or
[ 49, Law 20 Primary Court shall have full force and sale, if the same shall be shown to have been
of 1977]
validity in every place throughout Sri effected under the bona fide belief that the
Lanka ; and every person charged under the property did belong to the person whose
foregoing sections with the duty of property is authorized to be seized or sold.
executing any such process shall be
protected thereby from civil liability for loss 364. Unless otherwise in this Ordinance Form of
or damage caused by, or in the course of, enacted the precept of the court to the precept.
or immediately consequential upon, the Fiscal directing the service of any process,
execution of such process by him, or in the order, or notice, or other document, not
case of the Fiscal by his officers, except amounting to a writ to levy money, or to
when the loss or damage for which the claim take any person in arrest, or to detain any
is made is attributable to any fraud, gross person in custody, or do deliver possession
negligence, or gross irregularity of of property shall be in the form No. 17 in
proceeding, or gross want of ordinary the First Schedule.
diligence or abuse of authority on the part
of the person executing such process: 365. Process in civil cases, whether at When process
the suit of the State or individuals, shall not may not be
served.
Provided that no action shall be be served or executed between the period of [ 50, Law 20
maintainable against any person charged as sunset and sunrise, nor on a public holiday, of 1977.J

aforesaid with the duty of executing any nor on any minister of religion, a bhikku or
such process in respect to his execution other priest or religious functionary while
thereof, unless previous notice in writing performing his functions in any place of
distinctly setting forth the grounds of such public worship nor upon any individual of
action shall have been given to him by or on any congregation during the performance of
behalf of the plaintiff one month at least public worship at any such place.
before the commencement of such action,
and unless such action shall be brought 366. The outer door of any dwelling Outer door not
within nine months after the cause of action house shall not be forced open in order to to be forced.
shall have arisen; seize the person under civil process issued at
the suit of a private individual, excepting
And provided further, that it shall be such person shall have escaped or shall have
lawful for the person to whom such notice been rescued after having been duly
of action has been given at any time before arrested.
the commencement of such action to tender
amends to the party aggrieved, and if the 367. If the person executing any process In effecting
same be refused to plead such tender, at the under this Ordinance, directing or seizure of
movable
same time paying into court for the use of authorizing seizure of movable property, property inner
the plaintiff the amount so tendered, and if has obtained entrance into a house or other door may be
the court by its judgment in the action shall building, he may unfasten and open the opened.
hold that the amount so tendered and paid door of any room in which he has reason to
into court is sufficient amends for the party believe any such property to be.

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Person 368. The person employed in carrying 372. The Fiscal or Deputy Fiscal, or Power of
executing into effect any process of execution against other person specially appointed by the Fiscal or other
process always person to
to have writ either person or property shall always have Minister in charge of the subject of Justice administer
with him or with him the writ, warrant, or mandate of in that behalf, is hereby authorized to oath therefor.
copy. execution, or a copy of the same administer the oath or affirmation which is
authenticated by the Fiscal or Deputy requisite to the making of the affidavit in
Fiscal, which shall, if required, be produced the last section mentioned. And every
and shown to the party against whom, or officer who makes a false statement of fact
against whose property, it is sought to be in any such affidavit commits (in addition to
put in force. any offence of which under the provisions of
the Penal Code he may by so doing be
guilty) an offence which is punishable as
Body of person 369. In all civil cases where process of
to be arrested contempt of court.
execution may issue against the person of a
must be seized
party, it shall be necessary, in order to
or touched. PART II
constitute an arrest, that the body of the
person to be arrested shall be actually seized
OF SUMMARY PROCEDURE
or touched by the officer executing the
process, unless such person express his
CHAPTER XXIV
acquiescence in the arrest without being so
seized or touched.
OF SUMMARY PROCEDURE

Fiscal's return 370. (1) Every Fiscal or Deputy Fiscal 373. Every application to the court, or Summary
of writ or shall, on the receipt of any process, note action, of summary procedure shall be procedure by
precept. petition.
thereon the day he received the same, and instituted upon a duly stamped written [ 51, Law 20
on the service or execution thereof the date petition presented to court by the applicant. 1977.]
and mode of such service or execution.
374. The petition shall be distinctly Form of
written upon good and suitable paper, and petition.
(2) When the writ of execution or [ 52, Law 20
shall contain the following particulars :
precept for service has been carried into 1977.]
effect, or on the day appointed in the writ or
(a) the name of the court and date of
precept for the return thereof, whichever
presenting the petition;
date shall first occur, the Fiscal or Deputy
Fiscal shall return the writ or precept to the
(b) the name, description, and place of
court from which it issued with his report of
abode of the petitioner or
what has been done under it.
petitioners;

Report to be 371. The report of the Fiscal or Deputy (c) the name, description, and place of
accompanied Fiscal constituting his return to the writ of abode of the respondent or
by affidavit to
be attached as execution or to the precept for service of respondents;
an exhibit. any process shall be fair written and shall
state concisely the mode in which the (d) a plain and concise statement of the
process has been served, or the steps which facts constituting the ground of the
have been taken to effect service; and shall application and its circumstances,
be accompanied .by an affidavit made by the and of the petitioner's right to make
officer charged with the duty of executing it. Such statement shall be set forth
the process, which affidavit shall set out the in duly numbered paragraphs;
facts of the service effected or of the
endeavour made by the officer to effect the (e) a prayer for the relief or order which
service. The process and the affidavit shall the petitioner seeks.
be attached to the report as exhibits, and
shall be referred to therein by means of a 375. If the application is instituted in the If incidental to
distinguishing letter or other mark put upon course of, or as incidental to, a pending an action,
petition to be
them, each initialled and dated by the action, whether of regular or summary entitled therein.
Fiscal. procedure, the petition shall be headed with

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CIVIL PROCEDURE CODE [Cap.105
a reference to its number in the court, and served upon the respondent by the Fiscal in Service on
the names of the parties thereto, and shall the manner and subject to the rules respondent.
be filed as part of the record of such action, hereinbefore prescribed for the service of the
and all proceedings taken and orders made summons in a regular action.
on such petition shall be duly entered in the
journal required to be kept by section 92. 380. If the court is not satisfied on the If grounds are
Affidavits and 376. With the petition, and so far as evidence exhibited or adduced that the insufficient,
exhibits to be conveniently can be attached thereto, shall petition to be
attached to
material facts of the petition are prima facie refused.
petition. be exhibited such affidavits, authenticated established or is of opinion that on the
copy records, processes, or other footing of those facts the petitioner is not
documentary evidence as may be requisite entitled to the relief which he asks, then in
to furnish prima facie proof of the material either case the court shall refuse the
facts set out or alleged in the petition, or the petition.
court may in its discretion permit or direct
the petitioner to adduce oral evidence before 381. The petition, with its exhibits, petition and
the court for this purpose, which shall be adduced evidence, and the order made order thereon
taken down by the court in writing. to be filed.
thereon, shall be filed in court whether the
order is in the alternative (a) or (b) of
If grounds are 377. If the court is satisfied on the section 377, or is an order refusing the
sufficient, evidence exhibited or adduced that the
order may be petition.
nisi, or material facts of the petition are prima facie
interlocutory. established or is of opinion that on the
footing of these facts the petitioner is 382. If on the day appointed in an order Non-
made under section 377 for the appearance of
entitled to the remedy, or to the order in his petitioner on
favour, for which the petition prays, or any determination of the matter of the petition, day appointed.
part thereof, then the court shall the petitioner does not appear before the
accordingly make either court either in person or by his registered
attorney to support the petition, the court
(a) an order nisi. conditioned to take shall dismiss the petition, and shall have
effect in the event of the respondent power to make such order for the payment
not showing cause against it on a of costs by the petitioner to the respondent
day appointed by the order for that as to the court shall seem just.
purpose; or
383. (I) If on such day the petitioner When court
(b) an interlocutory order appointing a appears, and the respondent does not may take
day for the determination of the order nisi
appear, and if the court is satisfied by the absolute.
matter of the petition, and affidavit of the serving officer, stating the
intimating that the respondent will fact of the service, or by oral evidence, that
be heard in opposition to the the order has been duly served upon the
petition if he appears before the respondent in time reasonably sufficient to
court for that purpose on the day so enable him to appear, then if the order is an
appointed. order nisi made under (a) of section 377, the
court shall make it absolute, and shall pass
Order as to 378. In the alternative (a) of section 377 no other order adverse to the respondent;
costs. the order nisi may comprise an order but otherwise it shall make such order
against the respondent, or any of the within the prayer of the petition as it shall
respondents, to pay the costs of the consider right on the facts proved :
petitioner.

Form of order. 379. In either of the alternatives (a) and Provided, however, that in the latter case
(b) of section 377 the order made shall be the court shall make no order to pay costs
put into writing, and shall contain a against the respondent, except in cases
prefatory recital of the petition, and of the where the prayer of the petition expressly
exhibits and other evidence adduced in asks for the costs of the application, and the
support thereof. And a copy of the order court thinks it fit that the respondent should
together with a copy of the petition shall be pay them.

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(2) Nothing in this section shall prevent 387. The court, after the evidence has Final order.
the court from dismissing the petition at this been duly taken and the petitioner and
stage in the absence of the respondent, if it respondent have been heard either in person
sees reason to think that the order ought not or by their respective attorneys-at-law or
to have issued in the first instance. recognized agents, shall pronounce its final
order in the matter of the petition in open
court, either at once or on some future day,
Proceedings 384. If on such day both the petitioner of which notice shall be given in open court
where both and the respondent appear, the proceedings
parties appear. at the termination of the trial.
on the matter of the petition shall
commence by the respondent in person, or
388. (1) The final order so pronounced Endorsement
by his registered attorney, stating his
may be endorsed on the order nisi or on the on order nisi.
objections, if any, to the petitioner's interlocutory order, as the case may be.
application; and the respondent shall then
be entitled to read such affidavits or other
(2) In the case of the order nisi, the final
documentary evidence as may be admissible,
order, if endorsed, will be simpliciter either
or by leave of the court to adduce oral
in the shape of " order discharged " or of
evidence in support of his objections, or to
" order made absolute ":
rebut and refute the evidence of the
petitioner: Provided that an order nisi, if it consists
of separable parts, may be discharged in
Provided that no affidavit or other part and made absolute in part; and
documentary evidence shall be so read nothing herein enacted shall prevent any
without express leave of court, unless a copy order being made by consent of the
of the document shall have been served on petitioner and respondent on the footing of
the petitioner or his registered attorney at the order nisi.
least forty eight hours before the day when
the matter of the petition comes on to be (3) In the case of the interlocutory
heard and determined; and the oral order, the court may make such order
evidence shall be taken down in writing by within the prayer of the petition as it shall
the Judge. consider right on the facts proved, and it
may make any such order upon the
petitioner and respondent for the payment
Right to reply. 385. In the event of the respondent of costs as to the court shall seem just.
stating objections to the application, and
not otherwise, and after the respondent's
389. No appeal by a respondent shall lie Final order
evidence, if any, shall have been read or made on non-
against any final order which has been
given, the petitioner shall be entitled by way appearance of
made, in the case of the respondent's non- respondent,
of reply to comment upon the respondent's appearance, on the footing of either an not appealable,
case. order nisi or an interlocutory order in the but may be set
aside.
matter of a petition; but it shall be
Additional 386. When the respondent's evidence competent to the court, within a reasonable
evidence when has been taken, it shall be competent to the time after the passing of such order, to
admitted.
court, on the request of the petitioner, to entertain an application in the way of
adjourn the matter to enable the petitioner summary procedure instituted by any
to adduce additional evidence; or, if it respondent against whom such order has
thinks necessary, it may frame issues of fact been made, to have such final order set
between the petitioner and respondent, and aside upon the ground that the applicant
adjourn the matter for the trial of these had been prevented from appearing after
issues by oral testimony. And on the day to notice of the order nisi or interlocutory
which the matter is so adjourned, the order by reason of accident or misfortune,
additional evidence shall be adduced, and or that such order nisi or interlocutory
the issues tried in conformity with, as nearly order had never been served upon him. And
as may be, the rules hereinbefore prescribed if the ground of such application is duly
for the taking of evidence at the trial of a established to the satisfaction of the court,
regular action. as against the original petitioner, the court

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CIVIL PROCEDURE CODE [Cap. 105
may set aside the final order complained of 394. (1) If there are more plaintiffs If, on death of
upon such terms and conditions as the court than one, and any of them dies, and if the one of several
plaintiffs, the
shall consider it just and right to impose right to sue does not survive to the surviving right to sue
upon the applicant, and upon the final order plaintiff or plaintiffs alone, but survives to survives to the
being so set aside, the court shall proceed him or them and the legal representative of rest jointly
with legal
with the hearing and determination of the the deceased plaintiff jointly, the court may representative
matter of the original petition as from the cause the legal representative, if any, of the of of deceased,
point at which the final order so set aside deceased plaintiff to be made a party, and legal representative
was made. shall thereupon cause an entry to that effect may be made
to be made on the record and proceed with plaintiff.
the action.
Parties to an 390. In an application, or action, of
action of summary procedure the persons, petitioning (2) For the purposes of this Chapter [53, Law 20 of
summary 1977.]
procedure. or respondent, are the parties to the action.
" estate" means the gross value of the
estate of the deceased ; and
Journal in an 391. On the institution of an application " legal representative " means an executor
action of of summary procedure which is not made
summary or administrator, or in the case of
procedure. in, or incidental to, any already pending an estate below the value of twenty
action, the court shall commence and keep a thousand rupees, the next of kin
journal entitled as of the matter of the who have adiated the inheritance.
application, according to the rules
prescribed in section 92, and this journal so 395. In case of the death of a sole On death of
kept shall be the record of the matter of the plaintiff or sole surviving plaintiff the legal sole plaintiff,
application. legal
representative of the deceased may, where representative
the right to sue survives, apply to the court may be
to have his name entered on the record in substituted.
place of the deceased plaintiff, and the court
PART III shall thereupon enter his name and proceed
with the action.
INCIDENTAL PROCEEDINGS
396. If no such application be made to If no
CHAPTER XXV the court by any person claiming to be the application is
made by legal
legal representative of the deceased plaintiff, representative
OF THE CONTINUATION OF ACTIONS AFTER the court may pass an order that the action action may be
ALTERATION OF A PARTY'S STATUS shall abate, and award to the defendant the declared to
abate.
costs which he may have incurred in
defending the action, to be recovered from
On death of a 392. The death of a plaintiff or the estate of the deceased plaintiff; or the
party action defendant shall not cause the action to abate
does not abate court may, if it think proper, on the
if right to sue if the right to sue on the cause of action application of the defendant, and upon such
survives. survives. terms as to costs or otherwise as it thinks fit,
pass such other order as it thinks fit for
bringing in the legal representative of the
On death of 393. If there be more plaintiffs or deceased plaintiff or for proceeding with the
one out of defendants than one and any of them dies, action in order to a final determination of
more plaintiffs
or defendants and if the right to sue on the cause of action the matter in dispute, or for both those
than one, if survives to the surviving plaintiff or purposes,
right to sue plaintiffs alone, or against the surviving
survive to or
against the defendant or defendants alone, the court 397. In the event of any dispute arising In case of
rest, action to shall, on application in the way of summary as to who is the legal representative of a dispute, court
proceed. to decide who
procedure, make an order to the effect that deceased plaintiff, it is competent to the is legal
the action do proceed at the instance of the court either to stay the action until the representative.
surviving plaintiff or plaintiffs, or against question has been decided in another action,
the surviving defendant or defendants. or to decide at once, as between the parties

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before it, who shall be admitted to be such (2) If the case is one in which the
legal representative for the purpose of husband is by law liable for the debts of his
prosecuting the action. And this question wife, the decree may, with the permission of
shall in such case be dealt with and tried by the court, be executed against the husband
the court as an issue preliminary to the trial also; and in case of judgment for the wife,
of the merits of the action. execution of the decree may, with such
permission, be issued upon the application
Of substitution 398. (1) If there be more defendants of the husband where the husband is by law
of legal than one, and any of them die before decree entitled to the subject-matter of the decree.
representative
of deceased and the right to sue on the cause of action
defendant. does not survive against the surviving 400. The bankruptcy or insolvency of a Effect of
defendant or defendants alone, and also in plaintiff in any action which his assignee bankruptcy of
plaintiff.
case of the death of a sole defendant, or sole might maintain for the benefit of his
surviving defendant, where the right to sue creditors shall not bar the action, unless
survives, the plaintiff may make an such assignee declines to continue the action
application to the court, specifying the and to give security for the costs thereof,
name, description, and place of abode of within such time as the court may order,
any person whom he alleges to be the legal
representative of the deceased defendant, 401. If the assignee neglects or refuses to When assignee
continue the action and to give such security does not
and whom he desires to be made the continue
defendant in his stead. The court shall within the time so ordered, the defendant action.
thereupon, on being satisfied that there are may apply for the dismissal of the action on
grounds therefor, enter the name of such the ground of the plaintiffs bankruptcy or
representative on the record in the place of insolvency, and the court may dismiss the
such defendant, and shall issue a summons action and award to the defendant the costs
to such representative to appear on a day to which he has incurred in defending the
be therein mentioned to defend the action, same, to be proved as a debt against the
and the case shall thereupon proceed in the plaintiffs estate.
same manner as if such representative had
originally been made a defendant, and had 402. If a period exceeding twelve When court
been a party to the former proceedings in months in the case of a District Court or itself may
order action to
the action: Family Court, or six months in a Primary abate.
Court, elapses subsequently to the date of
the last entry of an order or proceeding in
Provided that the person so made
the record without the plaintiff taking any
defendant may object that he is not the legal
steps to prosecute the action where any such
representative of the deceased defendant, or
step is necessary, the court may pass an
may make any defence appropriate to his
order that the action shall abate.
character as such representative.
403. When an action abates or is No fresh action
(2) The legal representative of a dismissed under this Chapter, no fresh to be brought
deceased defendant may apply to have where action
action shall be brought on the same cause of has abated;
himself made a defendant in place of a action. but court may
deceased defendant, and the provisions of set aside order.
this section, so far as they are applicable, But the plaintiff or the person claiming to
shall apply to the application and to the be the legal representative of a deceased or
proceedings and consequences ensuing insolvent plaintiff may, within such period
thereon. of time as may seem to the court under the
circumstances of the case to be reasonable,
Action not 399. (1) The marriage of a female apply for an order to set aside the order for
abated by plaintiff or defendant shall not cause the abatement or dismissal; and if it be proved
marriage of
female party. action to abate, but the action may, that he was prevented by any sufficient
notwithstanding, be proceeded with to cause from continuing the action the court
Judgment; and where the decree is against.a shall set aside the abatement or dismissal
female defendant, it may thereupon be upon such terms as to costs or otherwise as
executed against her alone. it thinks fit.

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CIVIL PROCEDURE CODE [Cap.105
Continuation 404. In other cases of assignment, 407. In any fresh action instituted on Permission to
of action in creation, or devolution of any interest permission granted under the last preceding bring fresh
other cases of action not to
assignment of pending the action, the action may, with the section, the plaintiff shall be bound by the affect
party's interest. leave of the court, given either with the law of prescription or limitation in the same prescription.
consent of all parties or after service of manner as if the first action had not been
notice in writing upon them, and hearing brought.
their objections, if any, be continued by or
against the person to whom such interest 408. If an action be adjusted wholly or Adjustment of
has come, either in addition to or in in part by any lawful agreement or actions out of
court.
substitution for the person from whom it compromise, or if the defendant satisfy the
has passed, as the case may require. plaintiff in respect to the whole or any part
of the matter of the action, such agreement,
Applications 405. The application under section 398 compromise, or satisfaction shall be notified
under this may be made ex parte, but in all other
Chapter how to the court by motion made in presence of,
to be made. applications for the exercise of the or on notice to, all the parties concerned,
discretion of the court under this Chapter and the court shall pass a decree in
all the parties to the action, not being the accordance therewith, so far as it relates to
applicants, or such of them as may be the action, and such decree shall be final, so
affected by the order sought, must be made far as relates to so much of the subject-
respondents on the face of the application. matter of the action as is dealt with by the
agreement, compromise, or satisfaction.
CHAPTER XXVI
CHAPTER XXVII
OF THE WITHDRAWAL AND
ADJUSTMENT OF ACTION OF PAYMENT OF MONEY INTO COURT

withdrawal 406. (1) If, at any time after the


409. The defendant in any action Payment of
and adjustment institution of the action, the court is
brought to recover a debt or damage may, money into
of action. satisfied on the application of the plaintiff
at any stage of the action, deposit in court court.
(a) that the action must fail by reason of such sum of money as he considers a
some formal defect, or satisfaction in full of the plaintiffs claim.

(b) that there are sufficient grounds for 410. Notice in writing of the deposit Notice thereof.
permitting him to withdraw from shall be given by the defendant to the
the action or to abandon part of his plaintiff, and the amount of the deposit
claim with liberty to bring a fresh shall (unless the court otherwise directs) be
action for the subject-matter of the paid out of court to the plaintiff on his
action, or in respect of the part so application.
abandoned,
411. No interest shall be allowed to the Interest on
the court may grant such permission on plaintiff on any sum deposited by the deposit not
allowed to
such terms as to costs or otherwise as it defendant from the date of the receipt of plaintiff after
thinks fit. such notice, whether the sum deposited be notice.
in full of the claim or fall short thereof.
(2) If the plaintiff withdraw from the
action, or abandon part of his claim, 412. If the plaintiff accepts such amount Procedure
without such permission, he shall be liable only as satisfaction in part of his claim, he where plaintiff
accepts
for such costs as the court may award, and may prosecute his action for the balance; payment in
shall be precluded from bringing a fresh and if the court eventually decides that the part
action for the same matter or in respect of deposit by the defendant was a full satisfaction of
his claim.
the same part. satisfaction of the plaintiffs claim, the
plaintiff must pay the costs of the action
(3) Nothing in this section shall be incurred after the deposit and the costs
deemed to authorize the court to permit one incurred previous thereto, so far as they
of several plaintiffs to withdraw without the were caused by excess in the plaintiffs
consent of the others. claim.

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Cap.105] CIVIL PROCEDURE CODE
Procedure 413. If the plaintiff accepts such amount CHAPTER XXVIII
where plaintiff as satisfaction in full of his claim, he shall
accepts
payment in full present to the court a statement to that OF SECURITY FOR COSTS
satisfaction of effect, embodied in a motion for judgment,
his claim. and the court shall pass judgment 416. If at the institution, or at any Security for
accordingly, and in directing by whom the subsequent stage, of an action, it appears to costs where
plaintiff
costs of each party are to be paid the court the court that a sole plaintiff is, or (when resident out of
shall consider which of the parties is most to there are more plaintiffs than one) that all Sri Lanka.
blame for the litigation. the plaintiffs are, residing outside Sri [54, Law 20 of
1977.]
Lanka, the court may in its discretion, and
Illustrations either of its own motion or on the
application of any defendants, order the
(a) A owes B one hundred rupees. B sues A for the plaintiff or plaintiffs, within a time to be
amount, having made no demand for
payment, and having no reason to believe fixed by the order, to give security for the
thai the delay caused by making a demand payment of all costs incurred and likely to
would place him at a disadvantage. On the be incurred by any defendant.
plaint being filed, A pays the money into
court. B accepts it in full satisfaction of his
417. If at the institution, or at any Security for
claim, but the court should not allow him costs where
any costs, the litigation being presumably subsequent stage, of an action, it appears to
defendant
groundless on his part. the court that the defendant, or (where there resident out of
are more defendants than one) that any Sri Lanka.
(b) B sues A under the circumstances mentioned in defendant, is residing outside Sri Lanka, the [54, Law 20 of
illustration (a). On the plaint being filed. A 1977.]
court may in its discretion, and either of its
disputes the claim. Afterwards A pays the
money into court. B accepts it in full own motion or on the application of such
satisfaction of his claim. The court should defendant, order the plaintiff or plaintiffs,
also give B his costs of action, A's conduct within a time to be fixed by the order, to
having shown that the litigation was give security for the payment of all costs
necessary. incurred and likely to be incurred by such
(c) A owes B one hundred rupees, and is willing to defendant.
pay him that sum without action. B claims
one hundred and fifty rupees, and sues A for 418. (1) In the event of such security If security not
that amount. On the plaint being filed, A not being furnished within the time so fixed, furnished when
pays one hundred rupees into court, and ordered, action
disputes only his liability to pay the the court shall dismiss the action, unless the may be
remaining fifty rupees. B accepts the one plaintiff or plaintiffs be permitted to dismissed.
hundred rupees in full satisfaction of his withdraw therefrom under the provisions of
claim. The court should order him to pay A's section 406, or show good cause why such
costs. time should be extended, in which case the
Money must be 414. When a defendant by his answer or court may extend it.
actually paid. any party to an action by petition professes
to pay money into court, or when a (2) When an action is dismissed under Dismissal may
this section the plaintiff may within thirty be set aside.
defendant by his answer sets up a tender of
any sum of money before action brought, days, and after due notice in writing to the
the answer or the petition shall not be defendant, apply for an order to set the
received or filed by the court unless either dismissal aside, and if it is proved to the
the sum of money so professed to have been satisfaction of the court that he was
paid into court, or so alleged to have been prevented by any sufficient cause from
tendered, is actually paid into court, or the furnishing the security within the time
requisite steps for the purpose are taken by allowed, the court shall set aside the
the defendant or other party, as the case dismissal upon such terms as to security,
may be. costs, or otherwise as it thinks fit, and shall
appoint a day for proceeding with the
This Chapter 415. The enactments of this Chapter action.
to apply to any shall apply, mutatis mutandis, to the case of
party.
payment of money into court made by any 419. Whoever leaves, or is about to What amounts
party to the action in satisfaction of the leave, Sri Lanka under such circumstances to residing out
of Sri Lanka.
claim of any other party. as to afford reasonable probability that he [55. Law 20 of
1977.]
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CIVIL PROCEDURE CODE [Cap.105
will not be forthcoming whenever he may be Provided that, under special
called upon to pay costs, shall be deemed to circumstances, the commission may be
be residing outside Sri Lanka within the directed to any person whom the court
meaning of section 416 or 417. issuing the commission thinks fit to appoint.

CHAPTER XXIX 423. When any court to which When may


application is made for the issue of a court issue
OF COMMISSIONS commission to
commission for the examination of a person examine
residing at any place not within Sri Lanka is person outside
A.COMMISSIONS TO EXAMINE WITNESSES satisfied that his evidence is necessary, the Sri Lanka.
court may issue such commission.
Commission to 420. Any court may in any action issue
examine sick a commission for the examination on
person, &c.,
interrogatories or otherwise, and on oath or 424. Every court receiving a commission Court to
within
jurisdiction. affirmation, of persons resident within the for the examination of any person shall execute the
commission.
local limits of its jurisdiction who are from examine him pursuant thereto.
sickness or infirmity unable to attend the
court, or of women who, according to the 425. After the commission has been duly Return thereof.
customs and manners of the country, ought executed, it shall be returned, together with
not to be compelled to appear in public. the evidence taken under it, to the court out
of which it issued, unless the order for
To whom may 421. The commission for the issuing the commission has otherwise
commission examination of a person who resides within directed, in which case the commission shall
issue.
the local limits of the jurisdiction of the be returned in terms of such order; and the
court issuing the same may be issued to any commission and the return thereto, and the
person whom the court thinks fit to execute evidence taken under it, shall (subject to the
the same. provisions of the next following section) be
recorded in the action.
Commission to 422. (1) Any court may in any action
examine in issue a commission for the examination of 426. Evidence taken under a Evidence taken
other cases.
commission shall not be read as evidence in under
(a) any person resident beyond the local commission
the action without the consent of the party when
limits of its jurisdiction; against whom the same is offered, unless admissible.

(b) persons who are about to leave such (a) the person who gave the evidence is
limits before the date on which they beyond the jurisdiction of the court,
are required to be examined in or dead, or unable from sickness or
court; and infirmity to attend to be personally
examined ; or is a person whom the
(c) civil and military officers of court, in accordance with the
Government who cannot in the customs and manners of the
opinion of the Judge attend the country, sees reason to exempt
court without deteriment to the from personal appearance in court ;
public service; and or
(d) Women who, according to the (b) the court in its discretion, for good
customs and manners of the cause to be assigned by it, dispenses
country, ought not to be compelled with the proof of any of the
to appear in public. circumstances mentioned in the last
preceding section and authorizes
To whom may (2) Such commission shall ordinarily be the evidence of any person being
commission issued to any court, except the Supreme read as evidence in the action,
issue.
Court., the Court of Appeal and the High notwithstanding proof that the
Court, within the local limits of whose cause for taking such evidence by
jurisdiction such person resides, and which commission has ceased at the time
can most conveniently execute the same : of reading the same.

V/137
Cap.105] CIVIL PROCEDURE CODE
Foreign courts 427. The provisions hereinbefore (2) The report of the commissioner or
to which contained as to the execution and return of commissioners in each case within (B) and
provisions
apply. commissions shall apply to commissions (C), and the evidence taken by a
[56, Law 20 of issued by the courts of any foreign country commissioner (but not the evidence without
1977.] recognized by the Government of Sri the report) shall be evidence in the action;
Lanka. but the court, or, with the permission of the
court, any of the parties to the action, may
B.COMMISSIONS FOR LOCAL examine the commissioner personally in Commissioner
INVESTIGATIONS open court touching any of the matters may be
examined
referred to him, or mentioned in his report, personally.
Commission to 428. In any action or proceeding in or as to the manner in which he has made
make local which the court deems a local investigation
investigation. the investigation or conducted his
to be requisite or proper for the purpose of proceedings.
elucidating any matter in dispute, or of
ascertaining the market value of any
property, or the amount of any mesne 433. Before issuing any commission Court may
under this Chapter the court may order such order payment
profits or damages or annual net profits, into court of
and the same cannot be conveniently sum (if any) as it thinks reasonable for the expenses.
conducted by the Judge in person, the court expenses of the commission, to be paid into
may issue a commission to such person as it court by the party at whose instance or for
thinks fit, directing him to make such whose benefit the commission is issued.
investigation and to report to the court.
434. Any commissioner appointed under Powers of
Return thereof. 429. The commissioner, after such local this Chapter shall have authority to commissioners.
inspection as he deems necessary, and after administer an oath or affirmation, and may,
reducing to writing the evidence taken by unless otherwise directed by the order of
him, shall return such evidence, together appointment
with his report in writing, subscribed with
his name, to the court.
(a) examine the parties themselves and
C.COMMISSIONS TO EXAMINE ACCOUNTS any witness whom they or any of
them may produce, and any other
Commission to 430. In any action in which an person whom the commissioner
examine examination or adjustment of accounts is thinks proper to call upon to give
accounts. , . . .
necessary, the court may issue a commission evidence in the matter referred to
to such person as it thinks fit, directing him him:
to make such examination.
Court to 431. The court shall furnish the (b) call for and examine documents and
furnish commissioner with such part of the other things relevant to the subject
instructions. of inquiry;
proceedings of the action and such detailed
instructions as appear necessary, and the
instructions shall distinctly specify whether (c) at any reasonable time enter upon or
the commissioner is merely to transmit the into any land or building mentioned
proceedings which he may hold on the in the order.
inquiry, or also to report his own opinion
on the point referred for his examination. 435. The provisions of this Ordinance Provisions of
relating to the summoning, attendance, and this Ordinance
GENERAL PROVISIONS as to witnesses
examination of witnesses, and to the to apply.
Evidence taken 432. (1) The commission in every case remuneration of, and penalties to be
on commission within this Chapter shall be entitled as in imposed upon, witnesses, shall apply to
shall be filed
and recorded the action, whether of regular or summary persons required to give evidence or to
in the action. procedure, in which it issued, and on its produce documents under this Chapter,
return shall, with all the proceedings, whether the commission in execution of
evidence, and documents, if any, taken which they are so required has been issued
therein, be filed and recorded as of that by a court situate within, or by a court
action. situate beyond, the limits of Sri Lanka.

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CIVIL PROCEDURE CODE [Cap.105
Parties should 436. Whenever a commission is issued 440. Every affidavit must be fairly Alteration of
appear before under this Chapter the court shall direct written, and must exhibit no erasures or affidavit.
commissioner.
that the parties to the action shall appear blotting or blanks; if any alteration is
before the commissioner in person or by needed to be made in the original writing
their recognized agents or registered before it is sworn or affirmed to, every
attorneys. excision of a word, or letter, or figure shall
be made by so drawing a line through it as
If the parties do not so appear, the to leave the word, letter, or figure still
commissioner may proceed ex parte. legible; and every added word, letter, or
AFFIDAVITS figure shall be added by interlineation, not
by superposition or alteration; and every
Evidence on 437. Whenever any order has been made excision and interlineation shall be initialled
affidavit. by any court for the taking of evidence on by the Judge, Justice of the Peace, or
affidavit, or whenever evidence on affidavit Commissioner before whom the affidavit is
is required for production in any application affirmed or sworn.
or action of summary procedure, whether
already instituted or about to be instituted, CERTIFIED COPIES [57, Law 20 of
an affidavit or written statement of facts 1977.]
conforming to the provisions of section 181
may be sworn or affirmed to by the person 440A. (1) Where a party to any Issue of
professing to make the statement embodied proceedings in a civil court requires for the certified copies
in the affidavit before any court or Justice of statements
purpose of such proceedings a certified copy or complaints
of the Peace or Commissioner for Oaths of any complaint or statement made to a made to, or of
within the local limits of whose jurisdiction police officer, or an inquirer, whether in the plans or
he is at the time residing, and the fact that sketches
course of any investigation or otherwise, or prepared by,
the affidavit appears to be entitled in an of any plan, or sketch prepared by a police police officers
action in a competent court shall be officer, or an inquirer, on information or inquirers
sufficient authority to such court or Justice and the
furnished by any person or persons, such production of
of the Peace or Commissioner to administer party shall, upon the payment by such party such certified
the oath or affirmation. to the appropriate authority of the usual copies.
[58, Law 20 of
charges, be entitled to obtain a certified 1977.]
Affidavit to be 438. Every affidavit shall be entitled as copy of such complaint, statement, plan or
duly entitled in the court and action in which it is to be
and to be sketch, as the case may be; and the court,
signed by the used, and shall be signed by the declarant in upon application made in that behalf, may
declarant. the presence of the court, Justice of the direct the appropriate authority to issue
Peace, or Commissioner before whom it is such certified copy.
sworn or affirmed.
(2) Notwithstanding anything to the
Case of 439. In the event of the declarant being contrary in any other law, a certified copy
illiterate a blind or illiterate person, or not able to of any complaint, statement, plan or sketch
person.
understand writing in the language of the obtained under the preceding subsection by
court, the affidavit shall at the same time be a party to any proceedings in a civil court,
read over or interpreted to him in his own may, without the police officer or inquirer
language, and the jurat shall express that it to whom the complaint or statement was
was read over or interpreted to him in the made, or by whom the plan or sketch was
presence of the court. Justice of the Peace, prepared being called as a witness, be
or Commissioner, and that he appeared to produced in such proceedings by such party
understand the contents; and also that he in proof of the fact that the complaint or
made his mark or wrote his signature in the statement was made, or that the information
presence of the court, Justice of the Peace, on which the plan or sketch was prepared
or Commissioner. And when a mark is was furnished to such police officer or
made instead of a signature, the person who inquirer by any person or persons, if the
writes the marksman's name against the person by whom the complaint or statement
mark shall also sign his name and address in was made or every person who furnished the
the presence of the court. Justice of the information on which the plan or sketch
Peace, or Commissioner. was prepared has deposed to the fact of

V/139
Cap.105] CIVIL PROCEDURE CODE
having made such complaint or statement or the plaint the name and description and
of having furnished such information, as the place of abode of the plaintiff, it shall be
case may be: sufficient to insert the words "the
Attorney-General".
Provided however, that the court may of
its own motion, or upon application made (3) Attorney-General does not in this
by any party to such proceedings, require section include the Solicitor-General, the
the production of the book in which such Additional Solicitor-General, a Deputy
complaint or statement was first recorded or Solicitor-General, or any State Counsel.
the original of such plan or sketch, as the 457. In any action to which the State is Service of
case may be, or require that the person to a party, all processes of court issuing against process.
whom such complaint or statement was the State shall be served upon the
made, or by whom such plan or sketch was Attorney-General.
prepared, be summoned as a witness.
459. The court, in fixing the day for the Attorney-
Attorney-General to answer to the plaint, General to
(3) In the preceding subsections have
shall allow a reasonable time for the reasonable
" appropriate authority " necessary communication with the time to appear.
Government through the proper channels,
(a) in relation to any information or
statement recorded in an and may extend the time at its discretion.
information book, kept by an 459. Where the defendant is a public Service on
officer in charge of a police station, officer, the court may send a copy of the public officer.
means such officer; summons to the head of the office in which
the defendant is employed, for the purpose
(b) in relation to any plan or sketch of being served on him, if it appear to the
prepared by a police officer court that the summons may be most
attached to a police station, means conveniently so served.
the officer in charge of that police
station; and 460. If the public officer on receiving the Public officer
summons considers it proper to make a may apply for
time to answer.
(c) in relation to any information or reference to the Government before
statement recorded in an answering to the plaint, he may apply to the
information book kept by an court to grant such extension of the time
inquirer for any area or any plan or fixed in the summons as may be necessary
sketch prepared by an inquirer for to enable him to make such reference and to
any area means the inquirer for receive orders thereon through the proper
such area; channel; and the court upon such
application may extend the time for so long
" inquirer " and " police officer " shall as appears to be requisite.
have the same meaning as in the
Code of Criminal Procedure Act. 461. No action shall be instituted Attorney-
against the Attorney-General as General,
PART IV Minister,
representing the State or against a Minister, Deputy
ACTIONS IN PARTICULAR Deputy Minister, or public officer in respect Minister, and
CASES of an act purporting to be done by him in public officer
entitled to
his official capacity, until the expiration of notice.
CHAPTER XXXI*
one month next after notice in writing has
ACTIONS BY OR AGAINST THE been delivered to such Attorney-General,
STATE, OR MINISTERS, DEPUTY Minister, Deputy Minister, or officer (as the
MINISTERS, OR PUBLIC OFFICERS case may be), or left at his office, stating the
cause of action and the name and place of
Actions by or 456. (1) All actions by or against the
against the abode of the person intending to institute
State shall be instituted by or against (as the
State. the action and the relief which he claims;
[60, Law 20 of case may be) the Attorney-General.
and the plaint in such action must contain a
1977.]
(2) In actions by the State instituted by statement that such notice has been
the Attorney-General, instead of inserting in delivered or left.
* Chapter XXXSections 441 to 455 (both inclusive)is repealed by Law No. 20 of 1977.
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CIVIL PROCEDURE CODE [Cap.105
Procedure 461A. (1) Where no notice as required 464. If such application is not made by Where
where no by section 461 has been given prior to the the Attorney-General on or before the day Attorney-
notice has been General docs
given under institution of the action, and objection is fixed in the notice for the defendant to not intervene
section 461. taken prior to or in the answer that no such appear and answer to the plaint, the case action to
[61, Law 20 of shall proceed as in an action between proceed as
1977,] notice has been given, the court shall stay against private
further proceedings of the action for a private parties, except that the defendant party.
period of one month and may order the shall not be liable to arrest, nor his property
plaintiff to pay the defendant such costs as to attachment, otherwise than in execution
it thinks fit. Where proceedings are stayed of a decree.
under this subsection, the date immediately 465. In an action against a Minister, Minister,
following the period of one month after the Deputy Minister, or public officer in respect Deputy
date of the institution of such action shall be Minister, or
of such act as aforesaid, the court shall public officer
deemed to be the date of institution of the exempt the defendant from appearing in need not
action where such date is material for the person when he satisfies the court that he appear in
person.
purpose of determining whether the action cannot absent himself from his duty without
is prescribed or not, and such action shall detriment to the transaction of any business
thereafter be proceeded with after such of Parliament, or Cabinet of Ministers, or
notice has been duly given. to the public service.
CHAPTER XXXIII*
(2) Where after the giving of such notice
ACTIONS BY AND AGAINST CORPORATIONS
as required by section 461, the plaint fails to
AND COMPANIES
aver the fact of such notice having been
given, the court shall permit an amendment 470. In actions by or against any Action by or
corporation, or by or against a board or against a
of the plaint averring the giving of such corporation or
notice and if a postponement or other public body, or any company company.
adjournment is occasioned in consequence authorized to sue or be sued, the name and
thereof, the court may award such costs as it the style of the corporation, board, public
thinks fit. body, or company, or of the officer (if any)
in whose name any such corporation, board,
public body, or company is authorized to
(3) No such action as is referred to in sue and be sued, as the case may be, may be
section 461 shall be dismissed only for the inserted as the name of the plaintiff or
reason that no notice prior to the institution defendant; and the plaint or answer may be
of action had been given as required by the subscribed on behalf of the corporation,
said section or that a statement that such board, public body, or company by any
notice of action has been duly delivered or member, director, secretary, manager, or
left has not been averred in the plaint. other principal officer thereof who is able to
depose to the facts of the case; and in any
case in which such corporation, board,
Writ against 462. No writ against person or property public body, or company is represented by a
person or shall be issued against the Attorney-General
property in registered attorney, shall be subscribed by
such action. in any action brought against the State or in such registered attorney.
any action in which the Attorney-General is
substituted as a party defendant under 471. When the action is against a Service on
section 463. corporation, or against a board or other corporation or
company.
public body, or a company authorized to
sue and be sued in the name of an officer or
When 463. If the Attorney-General undertakes of a trustee, except in cases where a
Attorney- the defence of an action against a Minister,
General may particular mode of service is directed by
intervene. Deputy Minister, or public officer, the law, the summons may be served
Attorney-General shall apply to the court,
and upon such application the court shall (a) by leaving it at the registered office (if
substitute the name of the Attorney-General any) of the corporation, board,
as a party defendant in the action. public body, or company; or

*Chapter XXXIISections 466 to 469 (both inclusive)is repealed by Law No. 20 of 1977.
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(b) by giving it to the secretary or other CHAPTER XXXV
principal officer of the corporation,
board, public body or company; ACTIONS BY AND AGAINST MINORS AND
PERSONS U N D E R OTHER
and the court may in such summons or by DISQUALIFICATION
special order require the personal
appearance of such secretary or other 476. Every action by a minor shall be Action by
principal officer of the corporation, board, instituted in his name by an adult person minor.
public body, or company who may be able who in such action shall be designated in the
to answer material questions relating to the plaint the next friend of the minor, and may
action. be ordered personally to pay any costs in
CHAPTER XXXIV the action as if he were the plaintiff.

ACTIONS BY AND AGAINST TRUSTEES, 477. Every application to the court on Next friend
EXECUTORS, AND ADMINISTRATORS behalf of a minor (other than an application and guardian
ad litem.
under section 487) shall be made in his
Actions against 472. In all actions concerning property name by his next friend or his guardian for
trustees, vested in a trustee, executor, or
executors, and the action, and shall be so expressed to be
administrators. administrator, when the contention is made on the face of the application.
between the persons beneficially interested
in such property and a third person, the 478. (1) If a plaint be filed by or on Procedure
trustee, executor, or administrator shall behalf of a minor without a next friend, the where no next
represent persons so interested ; and it shall friend.
defendant may apply to have the plaint
not ordinarily be necessary to make them taken off the file, with costs to be paid by
parties to the action. But the court may, if it the registered attorney or other person by
thinks fit, order them, or any of them, to be whom it was presented.
made such parties.
All executors, 473. When there are several trustees, (2) Such application shall be made on
&c., should be executors, or administrators, they shall all summary procedure by the defendant; and
made parties. the court after hearing the objections, if any,
be made parties to an action by or against
one or more of them; of the person against whom it is made, may
make such order in the matter as it thinks
Provided that executors who have not fit.
proved their testator's will, and trustees,
executors, and administrators beyond the 479. Where the defendant to an action is Court may
local limits of the Jurisdiction of the court, a minor, the court, on being satisfied of the appoint
guardian ad
need not be made parties. fact of his minority, shall appoint a proper litem.
person to be guardian for the action for
Executors and 474. In every action brought by an
administrators such minor, and generally to act on his
executor or administrator in right of his
liable in costs. behalf in the conduct of the case.
testator or intestate, such executor or
administrator shall, unless the court shall
480. Every order made in an action or No order to
otherwise order, be liable to pay costs to the
on any application before the court in or by affect minor
defendant in case of judgment being entered not
which a minor is in any way concerned or represented.
for the defendant, and in all other cases, in
affected without such minor being
which he would be liable if such plaintiff
represented by a next friend or guardian for
were suing in his own right upon a cause of
the action, as the case may be, may be
action accruing to himself; and the
discharged on application made on
defendant shall have judgment for such
summary procedure for the purpose ; and, if
costs, and they shall be recovered
the registered attorney of the party at whose
accordingly.
instance such order was obtained knew, or
Husband of 475. Unless the court directs otherwise, might reasonably have known, the fact of
executrix not the husband of a married executrix or such minority, it may on such application be
to be made
party. administratrix shall not be a party to an discharged with costs to be paid by such
action by or against her in her registered attorney, provided he was duly
representative capacity. made a respondent to the application.

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CIVIL PROCEDURE CODE [Cap.105
Who may act 481. (1) Any person being of sound apply to the court for the appointment of
as next friend. mind and full age may be appointed next one, making the defendant a respondent to
friend of a minor, provided his interest is the application; and the court may
not adve-'se to that of such minor and he is thereupon appoint such person as it thinks
not a defendant in the action. fit.
(2) Such appointment shall be made after
application by way of summary procedure 486. A minor plaintiff, or a minor not a Minor's right
party to an action on whose behalf an of election on
supported by affidavit showing the fitness of coming of age.
application is pending, on coming of age,
the person proposed, and also that he has no
must elect whether he will proceed with the
interest adverse to the minor, and to such
action or application.
application the defendant shall be made
respondent. And on the occasion of any
such application being made the minor 487. (1) If he elects to proceed with it, Discharge of
he shall apply for an order discharging the next friend on
should appear personally in court unless minor's
prevented by good cause, such as extreme next friend, and for leave to proceed in his election to
youth or illness. own name. proceed with
action.
On cause 482. If the interest of the next friend of (2) The title of the action or application
shown court a minor is adverse to that of such minor, or
may remove shall, upon such order being made, be
next friend. if he is so connected with a defendant whose altered so as to read thenceforth thus: " A .
interest is adverse to that of the minor as to B; late a minor, by C. D., his next friend,
make it unlikely that the minor's interest but now of full age ".
will be properly protected by him or if he
does not do his duty, or, pending the action,
ceases to reside within Sri Lanka, or for any 488. If he elects to abandon the action Procedure on
or application he shall, if a sole plaintiff or election of sole
other sufficient cause, application may be plaintiff to
made on summary procedure on behalf of sole applicant, apply for an order to dismiss abandon on
the minor or by a defendant for his the action or application, on repayment of payment of
the costs incurred by the defendant, or costs.
removal; and the court (if satisfied of the
sufficiency of the cause assigned) may order respondent, or which may have been paid
the next friend to be removed accordingly. by his next friend.

Retirement of 483. (1) Unless otherwise ordered by 489. Any application under section 487 Application to
next friend. the court, a next friend shall not retire at his or section 488 may be made ex pane: and be ex parle.
own request without first procuring a fit the affidavit of facts upon which it is based
person to be put in his place, and giving must satisfy the court that the late minor
security for the costs already incurred. has attained his full age.
(2) The application for the appointment
of a new next friend shall be on summary 490. (1) A minor co-plaintiff on Procedure on
coming of age, and desiring to repudiate the election of a
procedure supported by affidavit, showing co-plaintiff to
the fitness of the person proposed, and also action, must apply to have his name struck repudiate.
that he has no interest adverse to the minor, out as co-plaintiff; and the court, if it finds
and to such application the defendant shall that he is not a necessary party, shall
be made respondent. dismiss him from the action on such terms
as to costs or otherwise as it thinks fit.
Death or 484. On the death or removal of the
removal of next friend of a minor further proceedings (2) The next friend as well as the
next friend.
shall be stayed until the appointment of a defendant, shall be served with the petition
next friend in his place. of application as respondent, and it must be
proved by affidavit that the late minor has
Appointment 485. If the registered attorney of such attained his full age ; the costs of all parties
of new next minor omits, within reasonable time, to take of such application and of all or any
friend.
steps to get a new next friend appointed, proceedings theretofore had in the action
any person interested in the minor or the shall be paid by such persons as the court
matter at issue may, on summary procedure, directs.

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If the !ate minor be a necessary party to that of the minor, but neither a plaintiff nor
the action, the court may direct him to be a married woman can be so appointed.
made a defendant.
496. If the guardian for the action of a Court may
Procedure 491. (1) If any minor on attaining minor defendant does not do his duty, or if remove
when ex-minor majority can prove to the satisfaction of the other sufficient ground be made to appear,
guardian ad
applies to have court that an action instituted in his name lilem.
action the court may remove him and may order
dismissed as by a next friend was unreasonable or him to pay such costs as may have been
unreasonable improper, he may, if a sole plaintiff, apply occasioned to any party by his breach of
or improper. by way of summary procedure to have the duty.
action dismissed.
497. If the guardian for the action dies Death of
(2) Notice of the application shall be
pending such action, or is removed by the guardian.
served on all the parties concerned,
court, the court shall appoint a new
including the next friend, and the court,
guardian in his place.
upon being satisfied of such
unreasonableness or impropriety, may grant
the application, and order the next friend to 498. When the enforcement of a decree Procedure for
or order is applied for against the heir or execution of
pay the costs of all parties in respect of the decree against
application and of anything done in the representative, being a minor, of a deceased minor heir.
action. party, a guardian for the action of such
minor shall be appointed by the court, on
Minor may in 492. Nothing in the foregoing sections an application of summary procedure duly
person sue for shall affect the right of any minor to made for this purpose, and the decree-
wages. holder shall then serve on such guardian
prosecute any proceedings in a Primary
Court for any money which may be due to notice of such application.
him for wages or piecework, or for work as
a servant, artificer, or labourer, in the same 499. No sum of money or other thing When court
manner as if he were of full age. shall be received or taken by a next friend may allow next
friend funds
or guardian for the action on behalf of a for suit.
Application for 493. (1) An order for the appointment minor at any time before decree or order,
appointment of of a guardian for the action may be unless he has first obtained the leave of the
guardian ad
litem. obtained upon application on summary court, and given security to its satisfaction
procedure in the name and on behalf of the that such money or other thing shall be duly
minor or by the plaintiff. Such application accounted for to, and held for the benefit of,
must be supported by an affidavit verifying such minor.
the fact that the proposed guardian has no
interest in the matters in question in the 500. (1) No next friend or guardian for Next friend
action adverse to that of the minor, and that the action shall, without the leave of the may not
he is a fit person to be so appointed. compound
court, enter into any agreement or action without
compromise on behalf of a minor with leave of court.
(2) On the occasion of such an reference to the action in which he acts as
application being made, the minor ought to next friend or guardian.
appear personally in court unless prevented
by good cause, such as extreme youth or
illness, from doing so. (2) Any such agreement or compromise
entered into without the leave of the court
When officer 494. When there is no other person fit shall be voidable against all parties other
of court may and willing to act as guardian for the action, than the minor.
be appointed.
the court may appoint any of its officers to
be such guardian, provided that he has no 501. (1) The provisions contained in This Chapter
interest adverse to that of the minor. this Chapter shall, mutatis mutandis, apply to apply to
persons of
in the case of persons of unsound mind and unsound mind
Co-defendant 495. A co-defendant of sound mind and mentally deficient persons, adjudged to be and mentally
maybe so under the provisions of this Ordinance or deficient
of full age may be appointed guardian for persons.
appointed.
the action, if he has no interest adverse to under any law for the time being in force. [ 13. 53 of
1980.]
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CIVIL PROCEDURE CODE [Cap.105
(2) For the purposes of this section, Explanation.In this Chapter the expression
" persons of unsound mind and mentally " commanding officer " means the officer in
deficient persons ", mean persons who have actual command for the time being of any
ship, regiment, corps, detachment, or naval,
been so adjudged under the provisions of military, or air depot to which the party
this Ordinance or under any law for the belongs.
time being in force, or where there has been
no such adjudication, persons of whom the 504. Any person authorized by such Agent may sue
court is satisfied, after inquiry, to be of party to prosecute or defend an action in his or defend in
, . ' . r > . person.
unsound mind or mentally deficient and stead may prosecute or defend it in person
incapable of managing their own affairs. in the same manner as such party could do
if present; or he may appoint an attorney-
Majority, what 502. For the purposes of this Chapter, a at-law to prosecute or defend the action on
is. minor shall be deemed to have attained behalf of such party.
majority or full age on his attaining the age
of twenty-one years, or on marriage, or on 505. Processes served upon any person Service of
obtaining letters of venia aetatis. authorized by any party under section 503, process
cases.
in such
or upon any attorney-at-law appointed as
CHAPTER XXXVI aforesaid by such person to act for or on
behalf of such party, shall be as effectual as
ACTIONS BY AND AGAINST PERSONS IN THE if they had been served on the party in
NAVAL, MILITARY, OR AIR SERVICE person or on his registered attorney ; and no
process in the action shall be served upon
Actions by or 503. (1) When any officer in the naval, such party personally without express order
against persons military, or air service or any sailor, soldier, of court.
in the naval,
military, or air or airman actually serving the Government
force. in the capacity of a member of a naval, 506. (1) When any naval, military, or Copy of
military, or air force is a party to an action, air officer or any sailor, soldier, or airman is summons may
be sent to
and cannot obtain leave of absence for the a defendant, a copy of the summons shall be commanding
purpose of prosecuting or defending the sent by the Fiscal to his commanding officer officer for
action in person, he may authorize any for the purpose of being served on him. service.
person to sue or defend in his stead.
(2) The officer to whom such copy is
Authority to (2) The authority shall be in writing, sent shall cause it to be served on the person
agent. and shall be signed by the party in the to whom it is addressed, if practicable, and
presence of shall return it to the Fiscal with the written
acknowledgment of such person endorsed
(a) his commanding officer, or of the thereon.
next subordinate officer if the party
be himself the commanding officer; (3) If from any cause the copy cannot be
or so served, it shall be returned to the Fiscal
by whom it was sent, with information of
(b) where the party is serving in naval, the cause which has prevented the service.
military, or air force staff
employment, the head or other 507. (1) If, in the execution of a Warrant of
superior officer of the office in decree, a warrant of arrest or other process arrest may
likewise be
which he is employed. Such is to be executed within the limits of a delivered for
commanding or other officer shall cantonment, garrison, or naval, military, or execution.
countersign the authority, which air station, the officer charged with the
shall be filed in court. execution of such warrant or other process
shall deliver the same to the commanding
(3) When so filed, the counter-signature officer.
shall be sufficient proof that the authority
was duly executed, and that the party by (2) The commanding officer shall, if the
whom it was granted could not obtain leave person named therein is by law liable to
of absence for the purpose of prosecuting or arrest, back the warrant or other process
defending the action in person. with his signature, and shall in the case of a

V/145
Cap.105] CIVIL PROCEDURE CODE
warrant of arrest cause such person, if day for the filing of the account or of the
within the limits of his command, to be document of falsification or surcharge, and
arrested and delivered to the officer so also a subsequent time for the opposing
charged. party to file objections thereto, and again a
later time for the hearing and determination
CHAPTER XXXVII of the issues between the parties arising out
of the objections, and for the finding on the
ACTIONS OF ACCOUNT
footing of such determination of the state of
Actions of 508. When the claim which is made in the account directed to be taken.
account. the plaint, or is set up in the answer, is such
that the action cannot be disposed of, or a 511. The account directed to be taken, The taking of
before it is filed, must be verified on oath or the accounts.
complete and final decree made in the
matter thereof between the parties without affirmation by the accounting party.
the taking of accounts, or the making Objections to the account may be filed by
inquiry into facts, or the demarcation of any party concerned in the right taking of
land, or the realization of assets, as the case the accounts and may be directed as well to
may be, it shall be competent to the court to adding new entries or enhancing existing
adjudicate piecemeal upon the matters in entries on the debit side of the accounting
issue, and in such adjudications to make party, as to falsifying the account given by
interlocutory decrees or orders of a final him in any particular. And the trial of the
character between the parties at hearings issues arising out of the objections to the
had by successive adjournments; and, in account shall conform, as nearly as may be,
particular, to take any accounts, and to in regard to the order and method of
make an inquiry into facts separately from proceeding and the taking of evidence, to
the remaining matter of the action on a day the rules hereinbefore laid down for the trial
to be appointed for the purpose, and to of a regular action.
issue the necessary directions or
commissions for the demarcation of land or 512. The day for filing the account Reasonable
directed to be taken, and the times for filing care to be
realization of assets, and to adjourn the taken in
hearing from time to time for further orders the objections thereto, and for the hearing appointing the
or directions, or for final determination, to and determination of the issues arising days for the
thereout, shall respectively be fixed with a purpose.
such dates as may be necessary or
convenient to enable the accounts to be due regard to the circumstances of the
taken, the inquiries made, and the matter and the situation of the parties
demarcation of land or realization of assets, therein, so that reasonable opportunity may
as the case may be, to be effected, in the be afforded to the accounting party to make
interval. out his account, to the opposing party to
examine the same and to satisfy himself in
Interlocutory 509. In any such case the order of respect to its correctness, and to all panics
order for adjournment for the purpose of the to prepare for trial.
taking
accounts,&c. accounts being taken, inquiries made, or
commissions or directions issued, must 513. In the event of the accounting party Procedure
not duly filing his account, and not where
adjudicate (either by consent or upon accounting
admissions of the parties, or upon other satisfying the court that there is just cause party makes
sufficient evidence) upon so much of the for his default, the court shall proceed with default.
rights of, or of the fiduciary relations the hearing of the matter of the account and
between, the parties, which are at issue in adjudicate upon the same on the day
the action, as may suffice to give rise to the appointed therefor by finding the actual
liability of the respective parties affected by state of the account directed to be taken
the order to account, or may serve to render upon such materials as may be furnished by
the inquiries, directions, or commissions the opposing party:
thereby directed proper and necessary.
Provided, nevertheless, that any
Form and 510. Every order directing an account to reasonable extension of time which may be
scope of order. be taken, or giving leave to a party to falsify bona fide required by any party, either for
or to surcharge an account, shall appoint a filing accounts or objections thereto, or for

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CIVIL PROCEDURE CODE [Cap. 105
preparing for trial, may be granted by the deposited, or who shall find such will after
court on such terms as it may think proper, the testator's death, shall produce the same
if such extension of time be applied for at to the District Court of the district in which
the earliest possibe moment, upon materials such depository or finder resides, or to the
showing good and sufficient ground, and District Court of the district in which the
upon notice to the other parties concerned. testator shall have died, as soon as
reasonably may be after the testator's death.
What 514. When an order is made in an action And he shall also make oath or affirmation,
provisions
apply when an for an inquiry into facts, the foregoing rules or produce an affidavit (form No. 81, First
order is made shall, mutatis mutandis, apply to the Schedule) verifying the time and place of
in an action for making of the order, the filing of the state of death, and stating (if such is the fact) that
an inquiry,
facts and of the objections thereto, or the testator has left property within the
counterstate of facts, and to the trial of the jurisdiction of that or any other, and in that
issues arising thereout respectively, so nearly event what, court, and the nature and value
as reasonably may be. of such property; or, if such is the fact, that
such testator has left no property in Sri
Adjournment 515. When the hearing of an action is Lanka.
of the hearing adjourned for the intermediate taking of
until after the
accounts &c accounts, making of inquiries, or execution The will so produced shall be numbered
shall have been of commissions , or of other directory and initialled by the Probate Officer and
taken, orders, the interval of adjournment shall be deposited and kept in the record room of
adjusted with immediate reference to the the District Court.
proceedings prescribed by the foregoing
rules for such interlocutory matter, so as to
(2) In this section, "Probate Officer"
allow of its being conveniently completed
means the Registrar of the District Court
before the resumption of the hearing so
and includes any other officer generally or
adjourned. And the order for adjournment
specially authorized by the court to exercise
shall include or comprehend the orders and
powers and perform the duties of a Probate
directions requisite under these rules for the
Officer in testamentary proceedings.
taking of the accounts or executing the
other matters for which the adjournment is
made: 517. Any person liable to produce any Penalty on
will to any court under the provisions of the neglect.
Provided, nevertheless, that any last preceding section, who shall wilfully
reasonable extension of the time of omit to produce such will, or to furnish the
adjournment which may seem to the court information thereby required, shall be guilty
necessary, or which may be bona fide of an offence, and liable to a fine not
required by any party, in consequence of exceeding one thousand rupees.
extension of time being granted for, or of
delay in, or prolongation of, the proceedings 518. (1) When any person shall die Who may
of the interlocutory matters, or upon other leaving a will under or by virtue of which apply for
probate or
good and sufficient ground shown by proper any property in Sri Lanka is in any way administration.
evidence, may be ordered by the court eitheraffected, any person appointed executor [65, Law 20 of
on the day to which the hearing is therein may apply to the District Court of 1977.]
adjourned, or upon any other day, provided the district within which he resides, or
reasonable notice of the application to the within which the testator resided at the time
court for the extension of the time of of his death, or within which any land
adjournment be afforded to all parties. belonging to the testator's estate is situate,
to have the will proved and to have probate
CHAPTER XXXVIII thereof issued to him; also any person
interested, either by virtue of the will or
TESTAMENTARY ACTIONS otherwise, in having the property of the
testator administered, may apply to such
Deposit of the 516. (1) When any person shall die court to have the will proved and to obtain
will of deceased, leaving a will in Sri Lanka, the person in grant to himself of administration of the
[64, Law 20 of whose keeping or custody it shall have been estate with copy of the will annexed.
1977.]

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Cap.105] CIVIL PROCEDURE CODE
(2) If any person who would be entitled (a) the time and place of the death of
to administration is absent from Sri Lanka, the deceased to the best of the
a grant of letters of administration with or knowledge and belief of the
without the will annexed, as the case may petitioner;
require, may be made to the duly
constituted attorney of such person. (b) the names and addresses of the
surviving next of kin of the
Probate or 519. (1) Upon any such application deceased, if known;
administration being made, and, in every case in which the
compulsory (c) the full and true particulars of the
where value of estate of the testator amounts to or exceeds
estate is or in value twenty thousand rupees, whether property left by the deceased as far
over twenty any such application shall have been made as he has been able to ascertain the
thousand
rupees. or not, it shall be obligatory on the court to, same;
[2,24 of and the court shall, issue probate of the will
1969.3 . to the executor or executors named therein; (d) particulars of the liabilities of the
or if there is no executor resident in Sri estate, if known.
Lanka competent and willing to act, the (2) The Public Trustee shall not be
court shall issue letters of administration required to file accounts of the property of
with or without the will annexed, as the case the deceased unless the court otherwise
may require, to some person who by the directs.
provisions of the last preceding section is
competent to apply for the same, or to some 521. In every case in which it is found Security.
other person who, in the opinion of the necessary, whether by reason of such [69, Law 20 of
court, by reason of consanguinity, amount executor as aforesaid not applying for 1977.]
of interest, the safety of the estate, and probate, or by reason of there being no
probability that it will be properly executor resident in Sri Lanka competent
administered, is a proper person to be and willing to act, or by reason of no person
appointed administrator; and in every such who is competent under section 518 to apply
case letters of administration may be limited for letters of administration so applying,
or not in manner hereinafter provided, as that any such person as is in section 519
the court thinks fit. mentioned, should be appointed
administrator, the court shall take from
(2) The grant of such letters shall be such person security for the due
subject to the rules and regulations administration of the estate in manner in
hereinafter provided with regard to such section 538 mentioned, and it shall not in
grants in other cases; and in the judgment any case be competent for the court to
by which such grant is made the court shall dispense with such security under the
adjudicate upon the facts which constitute provisions of section 541.
the grounds of the appointment.
522. Whenever the Public Trustee has Duties of
[66, Law 20 of (3) For the purpose of this Chapter obtained probate in respect of a will or publlc Trustee
1977.] " estate " shall mean the gross value of the relating to the
grant of letters 01 administration in respect administration
estate of the deceased. of estates.
of the estate of a deceased person, he shall
[70, Law 20 of
When Public 520. Where there is no person fit and as far as practicable, comply with the 1977.]
Trustee may be proper in the opinion of the court to be provisions of this Chapter relating to the
appointed. administration of estates:
[67, Law 20 of appointed administrator in manner in the
1977.] last preceding section provided, or no such
person is willing to be so appointed, and not Provided that the Public Trustee shall not
in any other case, the court shall appoint the be required
Public Trustee such administrator.
(a) to take any oath as executor or
520A. (1) Whenever the Public Trustee administrator;
Requirements
when Public applies for letters of administration, it shall
Trustee applies (b) to furnish any bond or security, but
for letters of be sufficient if the petition presented for the shall be subject to the same liability
administration. grant of such letters states and dues as if he had given such
[68, Law 20 of
1977.] bond or security;

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(c) to make payment or secure the identified by affidavit, with the will as an
payment of assessed estate duty exhibit thereto, or by parol testimony at the
prior to his undertaking the time the application is made.
administration of the estate, but
shall eventually make such payment (3) Every person making or intending to
as required by the Estate Duty make, an application to a District Court
Ordinance or the Estate Duty Act, under this section to have the will of a
as the case may be; deceased person proved, which will is
deposited in another District Court, is
(f) to affix stamps on any document at entitled to procure the latter court to
or about the time of the making of transmit the said will to the court to which
such document; but shall application is to be made, for the purpose of
eventually make such payment as such application. Also the application must Application to
required by the Stamp Ordinance; be supported

by- sufficient evidence either in be made on
affidavits.
the shape of affidavits of facts, with the will
(c) unless the court otherwise directs, to as an exhibit thereto, or of oral testimony,
tender final accounts. proving that the will was duly executed
according to law, and establishing the
To whom grant 523. In the case of a conflict of claims to character of the petitioner according to his
in either case have the will proved and probate or grant of claim.
should be
made. administration issued, the claim of an
executor or his attorney shall be preferred (4) The petitioner shall tender with the [72, Law 20 of
to that of all others, and the claim of a petition 1977.]
creditor shall be postponed to the claim of a
residuary legatee or devisee under the will. (a) the declaration of property referred
And in the like case of a conflict of claims to in section 30 of the Estate Duty
for grant of administration where there is Ordinance or in section 24 of the
intestacy, the claim of the widow or Estate Duty Act, as the case may
widower shall be preferred to all others, and be, in triplicate with a certified copy
the claim of an heir to that of a creditor: of the will for transmission by court
to the Commissioner-General of
[71, Law 20 of Provided, however, that the court may for Inland Revenue;
1977.] good cause supersede the claim of the
widow or widower. (b) draft order nisi;

Mode of 524. (1) Every application to the (c) the requisite stamps for the order nisi
application and District Court to have the will of a deceased and service thereof;
profincase proof in case of
a will. person proved shall be made on petition by
(d) draft notice of order nisi in the form
way of summary procedure, which petition
No. 84A in the First Schedule ;
shall set out in numbered paragraphs the
relevant facts of the making of the will, the (e) proof of payment of the estimated
death of the testator, the heirs of the charges to cover the cost of
deceased to the best of the petitioner's advertising the notice of order nisi
knowledge, the details and situation of the in a local newspaper as hereinafter
deceased's property, and the grounds upon provided; and
which the petitioner is entitled to have the
will proved ; the petition shall also show (f) the consent in writing of such
whether the petitioner claims as creditor, respondents as consent to his
executor, administrator, residuary legatee, application.
legatee, heir, devisee, or m any and what
other character. 525. (1) If the petitioner has no reason Affidavit of no
to suppose that his application will be opposition.
(2) If the will is not already deposited in opposed by any person, he may file with his
the District Court in which the application petition an affidavit to that effect, and may
is made, it must either be appended to the omit to name any person in his petition as
petition, or must be brought into court and respondent.

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[73, Law 20 of (2) The petitioner shall tender with the 529. (1) In the case of an application When court
l977.] petition for probate if no respondent is named in the may make
order absolute
petition, the court may in its discretion in the first
(a) the declaration of property referred make the order absolute in the first instance. instance.
to in section 30 of the Estate Duty
Ordinance or in section 24 of the
Estate Duty Act, as the case may (2) The notice of such order absolute [74, Law 20 of
be, in triplicate with a certified copy shall be in the form No. 84B in the First 1977.]
of the will for transmission by court Schedule and shall be advertised in the
to the Commissioner-General of manner provided in section 532.
Inland Revenue;
530. (1) When any person shall die Mode of
(b) draft order absolute; without making a will or where the will application and
proof for grant
cannot be found, every application for grant of
(c) the requisite stamps for such order of administration of his property may be administration
absolute; made to the District Court of the district in absence of a
will.
within which the applicant resides, or within [75, Law 20 of
(d) draft notice of order absolute in the which the deceased resided at the time of his 1977.]
form No. 84B in the First Schedule ; death or within which any land belonging
and to the deceased's estate is situate. Every such
application shall be made on petition by
way of summary procedure, which petition
(e) proof of payment of the estimated shall set out in the numbered paragraphs
charges to cover the cost of prescribed by section 524, the relevant facts
advertising the notice of order of the absence of the will, the death of the
absolute in a local newspaper as deceased, and the heirs of the deceased to
hereinafter provided. the best of the petitioner's knowledge; the
petition shall also show the character in
Court if 526. Upon the application being made, which the petitioner claims and the facts
satisfied with if the court is of opinion that the evidence
proof, to make which justify his doing so. The application
order nisi adduced is sufficient to afford prima facie shall also be supported by sufficient
declaring will proof of the due making of the will and of evidence, to afford prima facie proof of the
proved. the character of the petitioner, it shall make material allegations in the petition, and shall
an order nisi declaring the will to be proved, name the next of kin of the deceased as
which order shall be served upon the respondents.
respondent, if any, and upon such other
person as the court shall think fit to direct,
(2) (a) The petitioner shall tender with
and shall come on for final hearing and
the petition
disposal on a day to be named therein.
(i) the declaration of property referred
Order nisi to 527. If the applicant claims as the
direct probate. executor or one of the executors of the will, to in section 30 of the Estate Duty
Ordinance or in Section 24 of the
and asks that probate may be issued to him,
Estate Duty Act, as the case may
the order nisi shall declare that he is
be, in triplicate for transmission by
executor, and shall direct the issue of
court to the Commissioner-General
probate to him accordingly.
of Inland Revenue.

Grant of 528. If the applicant claims in any other (ii) draft order nisi;
administration character than that of executor, and asks
with copy of
will annexed. that the administration of the deceased's
property be granted to him, then the order (iii) the requisite stamps for the order
nisi shall include a grant to the applicant of nisi and service thereof;
a power to administer the deceased's
property according to the will, with a copy (iv) draft notice of order nisi in the form
of the will annexed. No. 84A in the First Schedule, and

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(a) proof of payment of the estimated Provided that no such additional
charges to cover the cost of assessment shall be made after the expiry of
advertising the notice of order nisi two years from the date of grant of probate
in a local newspaper as hereinafter or letters of administration.
provided.
(5) Nothing in this section shall prevent
(b) The petitioner may also tender with the Assessor from acting under any such
the petition the consent in writing of such provisions of the Estate Duty Ordinance or
respondents as consent to his application. of the Estate Duty Act, as the case may be,
as are not inconsistent with the provisions of
Court 531. Upon the application for grant of this section.
declaring administration being made, if the court is of
petitioner's opinion that the material allegations of the
order nisi for petition are proved, it shall make an order (6) In this section " Assessor " has the
issue of grant. same meaning as in the Estate Duty
nisi declaring the petitioner's status Ordinance or in the Estate Duty Act, as the
accordingly, and making the grant prayed case may be.
for, which order shall be served upon the
respondent and upon such other persons as 531B. Notwithstanding the provisions of Court to grant
the court shall think fit to direct, and shall section 55 of the Estate Duty Ordinance, or probate or
come on for final hearing and disposal on a letters of
of section 42 of the Estate Duty Act, as the administration
day to be named therein. case may be, the court may grant probate or upon
letters of administration, as the case may be, provisional
Court to 531A. (1) The court shall, upon receipt certificate.
forward of the declaration referred to in section 30 upon production of a provisional certificate [76, Law 20 of
declaration under the provisions of subsection (3) of 1977.]
made by me of the estate Duty Ordinance, or in section section 531A.
petitioner to 24 of the Estate Duty Act, as the case may
the
Commissioner- be, forthwith forward to the Commissioner- 532. In all cases of application for the Notice of order
General of General of Inland Revenue two copies of grant of the administration of the deceased's nisi to be
Inland such declaration, and where the will has advertised.
Revenue, property, whether with or without a will, the [77, Law 20 of
[76, Law 20 of been filed, one copy of the will. court shall, whether a respondent is named 1977.]
(2) The Assessor shall, within one year in the petition or not, direct notice of the
after the receipt by him of such particulars order nisi in the form No. 84A in the First
as may be necessary to assess the estate duty Schedule to be advertised twice in a local
payable in respect of the estate of the newspaper before the day of final hearing,
deceased, determine the person or persons the newspaper to be selected by the court
by whom the whole or part of such duty is with the object that the notice of the order
payable and assess the estate duty payable nisi should come to the knowledge of all
in respect of the estate. persons interested in the administration of
the deceased's property:
(3) On the payment of the estate duty
assessed under the preceding subsection or Provided that the court may in its
on such. security as the Commissioner- discretion direct such other mode of
General of Inland Revenue may deem advertisement in lieu of such publication as
sufficient being furnished for the payment of to it seems sufficient.
such estate duty, such Commissioner-
General shall issue a certificate to that 533. If on the day appointed for final At final
hearing, or on the day to which it may have hearing on
effect. objection,
been duly adjourned the respondent or any court shall
(4) Whenever it appears to an Assessor person upon whom the order nisi has been frame issues.
that the amount which any person is liable directed to be served, or any person then
to pay as estate duty has been assessed appearing to be interested in the
under subsection (2) at less than the administration of the deceased's property,
appropriate amount, the Assessor may satisfies the court that there are grounds of
make an additional assessment of the objection to the application, such as ought
amount which such person is in the opinion to be tried on viva voce evidence, then the
of the Assessor liable to pay ; court shall frame the issues which appear to

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arise between the parties, and shall direct which the court may require, on behalf of
them to be tried on a day to be then the corporation and the acts of such officer
appointed for the purpose under section shall be binding on the corporation.
386.
535. At any time after the filing of a Who may file a
petition in a District Court, asking to have caveat.
When order 534. If at the final hearing, or on the
nisi shall be the will of a deceased person proved, or that
determination of the issues thus framed, it
made absolute the grant of probate thereof or of
and shall appear to the court that the prima
administration of a deceased person's
facie proof of the material allegations of the
property be made, and before the final
petition has not been rebutted, then the
hearing of the petition, it shall be competent
order nisi shall be made absolute, and
to any person interested in the said will or in
probate or grant of administration with the
the said deceased person's property or
will annexed, or grant of administration
estate, though not a respondent on the face
only, as the case may be, shall issue
of the petition, to intervene, by filing in the
accordingly, subject to the conditions
When same court a caveat against the allowing of Effect thereof.
hereinafter prescribed. If, on the other hand,
discharged. the petitioner's claim or a notice of
it shall then appear to the court that the
opposition thereto, and any order nisi which
prima facie proof of any material allegations
may be made upon such petition shall be
in the petition has been rebutted, the order
served upon such objector as if he had been
nisi shall be discharged, and the petition
originally named a respondent in the
dismissed. And in the event of the petition.
respondent or objector having at such
hearing or trial of issues established his right 536. In any case where probate of a Power of
to have probate or grant of administration deceased person's will has issued on an District Court
of the deceased's estate issued to him instead to recall or
order absolute in the first instance, or a revoke probate
of to the petitioner, then the court shall grant of administration of a deceased or grant of
further make an order to that effect in his person's property has been made, it shall be administration
favour: competent to the District Court to recall the
said probate or grant of administration, and
Provided, however, that the dismissal of to revoke the grant thereof, upon being
the petition shall not be a bar to a renewal satisfied that the will ought not to have been
of the application by the petitioner as long held proved, or that the grant of probate or
as grant either of probate of the deceased's of administration ought not to have been
will, or of administration of his property, made; and it shall also be competent to the
shall not have been made, either on the District Court to recall the probate or grant
occasion of this application or subsequently of administration at any time upon being
thereto, to some other person than the satisfied that events have occurred which
petitioner. render the administration thereunder
impracticable or useless.
Procedure 534A. (1) Where a corporation is
where a 537. All applications for the recall or Applications
appointed executor under a will either alone
corporation is revocation of probate or grants of therefor to be
or jointly with another person, the court
appointed administration shall be made by petition, in by petition.
executor under may grant probate to such corporation
a will.
pursuance of the rules of .summary
either solely or jointly with such other
[78, Law 20 of procedure hereinbefore prescribed; and no
person as the case may require, and the
1977.] such application shall be entertained unless
corporation may act as executor
the petitioner shows in his petition that he
accordingly.
has such an interest in the estate of the
deceased person as entitles him in the
(2) Letters of administration may be
opinion of the court to make such
granted to any corporation either solely or
application.
jointly with another person and the
corporation may act as administrator 538. (I) In every case where an order Inventory and
accordingly. absolute has been passed by a District Court valuation.
declaring any person entitled to have issued
(3) Any officer, authorized for the to him probate of a deceased person's will,
purpose by such corporation, may swear or grant of administration of a deceased
affidavits, take the oath of office, give person's property, it shall be the duty of the
security, and do any other act or thing, said person, executor, or administrator, in

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whose favour such order is made, to take (c) When the original will is in the hands
the oath of an executor or administrator of some person residing out of Sri
according to the form prescribed in the First Lanka, who cannot be compelled to
Schedule and thereafter to file in court, give it up to the executor, and if the
within a time to be appointed therefor in the executor produces a copy, then
order, an inventory of the deceased person's probate of that copy may be
property and effects, with a valuation of the granted, limited until the original be
same, such inventory and valuation to be brought into court. If, however, the
verified on oath or affirmation by the said will has been duly proved out of Sri
executor or administrator in the form No. Lanka, probate may be granted to
92 in the said Schedule, and where the court the executor on a proper
requires it to enter into a bond with two exemplification of the foreign
good and sufficient sureties in the form No.
probate without any limitation in
90 in the said Schedule, for the due
the grant.
administration of the deceased person's
property.
(d) If the sole executor of a will resides,
Security. (2) The bond so entered into shall or if there- are more executors than
render the sureties responsible in any suit one and all the executors reside, out
brought for the administration of the of Sri Lanka, or such of the
deceased person's property for all executors as reside in Sri Lanka
deficiencies, depreciation, or loss of that decline to act, then the court may
property attributable to the default of their grant administration with copy of
principal, and liable to make good the same the will annexed to any person
to the same extent and in like manner as if within Sri Lanka, as attorney of the
the said default were their own, subject, executor or of the executors, who
however, to the conditions of the bond in shall be appointed for that purpose
that behalf.
by power of attorney, the grant so
[79, Law 20 of (3) Where a banking, insurance or other made being limited for the use and
1977.] corporation approved by the court stands benefit of the principal until the
surety, no other surety shall be necessary, executor or one of the executors
nor shall a mortgage or hypothecation of comes in and obtains probate for
the property be required- himself. If the document admitted
to proof in this case be a copy of or
Limited 539. It is competent to the District Court substitute for the original, on
probate and to make a grant of probate or a grant of
administration. account of the original itself not
administration, limited either in respect to its being forthcoming by reason of
duration, or in respect to the property to be
one of the just-mentioned causes,
administered thereunder, or to the power of the grant shall further be limited
dealing with that property which is conveyed
until the original is brought into
by the grant, in the following cases ;
court:
(a) When the original will of the
deceased person has been lost since Provided also, that if the person
the testator's death, but a copy has applying for the grant is not the
been preserved, probate of that copy attorney of all the executors, where
may be granted, limited until the there are more than one. the grant
original be brought into court. of administration shall not be made
to him until the remaining
(b) In the like event, and with the like executors have declined to act.
limitation, if no copy has been
preserved, probate of a draft will (e) In the case of a will, and there being
may be granted, or if in addition no no executor within Sri Lanka
draft is available, then probate of willing to act, grant of
the contents or of the substance and administration with copy of the will
effect of the will, so far as they can annexed may be made to the
be established by evidence, may be attorney of an absent residuary
granted. lagatee, or heir, limited until the

V/153
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principal shall come in and obtain (2) Such property shall be specified in
administration for himself; or in the grant and such grant shall expressly
the like case, the grant may be state that the letters are issued subject to the
made to the guardian of a minor following conditions:
residuary legatee, within Sri Lanka,
limited during the minority, or to (a) that the sale shall be, if by private
the manager of the estate of a treaty, at the price fixed by court,
residuary legatee who is of unsound or if by public auction, either at an
mind, within Sri Lanka, limited upset price or otherwise;
during the unsoundness of mind.
(f) In the case of intestacy, grants of (b) that the net proceeds of sale shall be
administration of the deceased deposited in court within such time
person's property may be made, as the court may prescribe;
limited in like manner to the
guardian of a minor heir or to the (c) that the administrator to whom the
manager of the estate of an heir letters are issued is not empowered
who is of unsound mind. to execute any deed of conveyance
(g) The court may grant probate or of immovable property prior to the
administration limited to any confirmation of sale by the court;
particular property or for any and
particular purpose, in any case
where it considers that a larger (d) any other stipulation the court may
grant is unnecessary. in the circumstances deem fit to
impose.
In all the foregoing cases, the material
and relevant facts necessary to justify the (3) Before making an order for grant of
court in making the limited grant must be letters under this section the Commissioner-
set out in the petition of application, and General of Inland Revenue and the
[80, Law 20 of must be established by prima facie evidence
1977.] respondents to the original petition for
before the order is made, as is prescribed in
probate or letters of administration shall be
sections 524 and 530.
given notice of the application and they or
Administration 539A. Where any legal proceeding any other person interested in the estate
pendente lite touching the validity of the will of a shall be heard in opposition unless they or
[81, Law 20 of any of them shall have signified their assent
1977.] deceased person or for obtaining, recalling
or revoking grant of probate or letters of to such sale.
administration is pending, the court may,
either on the ground of undue delay or 540. If no limitation is expressed in the Power of
order making the grant, then the power of administration
otherwise, grant letters of administration to when not
the estate of the deceased to an administration, which is authenticated by limited.
administrator limited for the duration of the issue of probate, or is conveyed by the
such proceeding; such administrator shall issue of a grant of administration, extends
be subject to the immediate control of the to every portion of the deceased person's
court and act under its direction, and shall property, movable and immovable, within
not have the right of distributing the estate. Sri Lanka, or so much thereof as is not
administered, and endures for the life of the
Limited letters 539B. (1) Notwithstanding the executor or administrator or until the whole
for sale of provisions of section 55 of the Estate Duty of the said property is administered,
property of
estate. Ordinance or of section 42 of the Estate according as the death of the executor or
[81, Law 20 of Duty Act, as the case may be, where for the administrator, or the completion of the
1977.] purpose of paying estate duty or for any administration, first occurs.
other sufficient cause it becomes necessary
to sell any property of the estate of a 541. In all cases of the issue of probate Court may
deceased person prior to the issue of security shall not be required, unless for dispense with
security.
probate or letters of administration the some special reason the court deems that
court may grant letters limited for the security is absolutely necessary for the
purpose of selling such property. protection of the estate; and in cases where

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CIVIL PROCEDURE CODE [ Cap.105
the grant of administration is limited court for grant- to himself of letters of
in regard to the dealing with the property administration; and the court shall have
which is the subject thereof, it shall be power, having regard, where there is a
within the discretion of the court to conflict of claims, to the provisions of
dispense with the giving of the bond under section 523, to appoint such person
section 538 ; and in all cases the court may administrator.
limit the amount secured by the bond to the
value of the movable property, which 545. In case no such person shall apply In event of no
appears to the court likely to come into the for letters of administration, and it appears application,
court may
hands of the administrator and to be liable to the court necessary or convenient to appoint some
to misappropriation; appoint some person to administer the person to
estate or any part thereof, it shall be lawful administer the
estate.
Provided that every order, dispensing for the court in its discretion, and in every
with the bond or limiting the amount to be such case where the estate amounts to or
secured thereby in cases of administration exceeds in value twenty thousand rupees it Compulsory,
where the value
or requiring security in cases of probate, shall be obligatory on such court, to appoint of the estate is
shall adjudicate upon the facts upon which some person, whether he would under twenty
the court intends it to rest; ordinary circumstances be entitled to take thousand
rupees or over.
out administration or otherwise, to [2, 24 of
[82, Law 20 of Provided further that in all cases of the administer the estate, and all the provisions 1969.]
1977.] issue of probate or grant of administration of sections 519 to 521, both inclusive, shall
to a sole beneficiary under a will or the sole apply, so far as the same can be made
heir in the case of intestacy or where all the applicable, to any such appointment.
heirs being sui juris consent thereto, security
shall not be required. 546. If any person shall die leaving Issue of letters
property in Sri Lanka, the Judge of the ad coliigenda.
Person dying 542. When any person shall die in Sri court of any district in which such property
intestate, death Lanka without leaving a will, it shall be the shall be situate shall, on the facts being
to be reported
by next of kin. duty of the widow, widower, or next of kin verified to his satisfaction and it being made
[2, 24 of of such person, if such person shall have to appear that there is not resident, within
1969.] left property in Sri Lanka amounting to or the local limits of his jurisdiction, some next
exceeding in value twenty thousand rupees, of kin or other person entitled to
within one month of the date of his death to administration of the estate of the person so
report such death to the court of the district dying, issue letters ad colligenda in the form
in which he shall have so died, and at the No. 91 in the First Schedule to one or more
same time to make oath or affirmation or responsible persons to take charge of such
produce an affidavit verifying the time and property until the same shall be claimed by
place of such death, and stating if such is some executor or administrator lawfully
the fact that the intestate has left property entitled to administer the same.
within the jurisdiction of that or any other,
and in that event what, court, and the 547. No action shall be maintainable for No action
nature and value of such property. the recovery of any property, movable or maintainable
to recover
immovable, in Sri Lanka belonging to or property of
Penalty for 543. Every person made liable to report included in the estate or effects of any testator or
neglect. any death under, or to furnish any intestate of
person dying testate or intestate in or out of
information required by, section 542, who over twenty
Sri Lanka within twenty years prior to the thousand
shall wilfully omit to report such death or to date of institution of the action, where such rupees unless
furnish such information within the time estate or effects amount to or exceed in probate or
therein prescribed therefor, shall be guilty of administration
value the sum of twenty thousand rupees has been taken
an offence, and liable to a fine not unless grant of probate or letters of out.
exceeding one thousand rupees- administration shall first have been issued. [ 84, law 20 of
1977.]
In the event of any such property being
Who may apply 544. In any case where a person is so transierred in any manner other than under
for adminis- reported to have died intestate, any person
tration in case the provisions of subsection (1) of section
of Intestacy. interested in having the estate of such 539B of this Ordinance or under section 28
[83, Law 20 of intestate administered may apply to such
1977.] of the Estate Duty Ordinance or section 22

V/155
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of the Estate Duty Act, as the case may be, unless it shall be made apparent to the court
without such probate or administration that such unusual trouble has fallen upon
being so first taken out, every transferor or him as to entitle him, in the opinion of the
transferee of such property shall be guilty of court, to receive further remuneration.
an offence, and in addition to any penalty
imposed under this Ordinance, it shall be 552. Each executor or administrator Compensation
lawful for the State to recover from such shall be entitled to the full compensation of severa1
executors.
transferor and transferee or either of them, allowed by law to a sole executor or
such sum as would have been payable to administrator, unless there are more than
defray estate duty. The amounts so three, in which case the compensation to
recoverable shall be a first charge on the which three would be entitled shall be
estate or effects of such testator or intestate apportioned among them all according to
in Sri Lanka or any part of such estate or the services rendered by them respectively,
effects, and may be recovered by action and a like apportionment shall be made in
accordingly. alt cases where there shall be more than one
executor or administrator. But where the
Probate when 548. When a person is appointed will provides a specific compensation for an
executor is executor of a will for a particular purpose
appointed for executor or administrator, he shall not be
limited only of the will, and not executor of the will entitled to any allowance other than that so
purpose. generally, probate will be granted to him provided, unless he files in court a written
limited for that purpose only. renunciation of the specific compensation.
Fresh grant, 549. When a sole executor or a sole
when allowed. surviving executor to whom probate has 553. Every executor and administrator Filing of the
shall file in the District Court, on or before account, and
been granted, or a sole administrator or a payment into
sole surviving administrator to whom a the expiration of twelve months from the court.
grant of administration has been made, dies date upon which probate or grant of [85, Law 20 of
administration issued to him, or within such 1977.]
leaving a part of the deceased's property
unadministered, then a fresh grant of further time as the court may allow, a true
administration may be made in respect of and final account of his executorship or
the property left unadministered according administration, as the case may be, verified
to the rules hereinbefore prescribed for a on oath or affirmation, with all receipts and
first grant. vouchers attached, and may at the same
time pay into court any money which may
Rectification of 550. Errors in names and descriptions, have come to his hands in the course of his
errors in grant. or in setting forth the time and place of the administration to which any minor or
deceased's death or the purpose in a limited minors may be entitled.
grant, may be rectified by the court, and the
grant of probate or letters of administration 554. If any executor or administrator Executor or
may be altered and amended accordingly. shall fail to pay over to the creditors, heirs, administrator
who fails to
legatees, or other persons the sums of administer
Compensation 551. Compensation shall be allowed to money to which they are respectively within the year
of executors executors and administrators by way of entitled, within one year after probate or liable for
and interest.
administrators. commission as well on property not sold but administration granted, such executor or
retained by the heirs, as on property sold by administrator shall be liable to pay interest
such executors and administrators, at such out of his own funds for all sums which he
rate not exceeding three per centum, and on shall retain in his own hands after that
cash found in the estate and on property period, unless he can show good and
specially bequeathed, at such rate not sufficient cause for such detention.
exceeding one and a half per centum, as the
court shall, after taking into consideration 554A. When any person shall die When a
the circumstances of each particular case without leaving a will and leaving an estate certificate of
heirship may
with reference to the trouble incurred by under twenty thousand rupees in value, any be applied for.
such executors or administrators, determine. heir of the deceased shall be entitled to [86, Law 20 of
In no case shall a larger sum than five apply to the District Court of the district 1977.]
thousand rupees be allowed to any executor within which he resides, or within which the
or administrator as such compensation, deceased resided at the time of his death, or

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CIVIL PROCEDURE CODE [Cap.105
within which any property of the deceased's petitioner has failed to establish his claim
estate is situate, for a certificate that he is an the order nisi shall be discharged, and the
heir of the deceased. petition dismissed :

Mode of 554B. The application shall be made on Provided that it shall be open to any of
application. petition by way of summary procedure the respondents at such hearing of issues to
[86, Law 20 of
1977.] setting out the relevant facts of the absence establish his right to be an heir of the
of the will, the death of the deceased, the deceased and to have a certificate of
value of the estate and the heirs of the heirship issued to him, whether the petition
deceased to the best of the petitioner's is dismissed or not.
knowledge, and the grounds upon which the
petitioner claims to be an heir.
CHAPTER XXXVIIIA [87, Law 20 of
1977.]
The application shall be supported by
sufficient evidence by way of affidavit to INSOLVENT TESTAMENTARY ESTATES
afford prima facie proof of the material
allegations in the petition, and shall name
554F. The estate of a deceased person When the
the next of kin of the deceased as estate of a
shall be deemed to be insolvent
respondents. deceased
person is
(i) If upon the basis of a valuation of his deemed to be
Court if 554C. If the court is of opinion that the assets and liabilities as at the date insolvent.
statisfied with material allegations of the petition are [87, Law 20 of
proof to make of his death or at any time 1977.]
order nisi. proved, it shall make an order nisi declaring subsequent thereto, it appears that
[86. Law 20 of the petitioner's heirship, which order shall the assets are or will be insufficient
1977.] be served on the respondents and upon such to pay in full the funeral,
other persons as the court shall think fit to testamentary and administration
direct, and shall come on for final hearing expenses relating to the estate, and
and disposal on a day to be named therein. the claims of creditors ; or

At final 554D. If on the day appointed for final (ii) if owing to execution proceedings
hearing on hearing, or on the day to which it may have
objection court being taken against the deceased or
shall frame been adjourned, the respondent or any his estate or the difficulty of
issues. person upon whom the order nisi has been realizing any of the assets of the
[86, Law 20 of directed to be served, or any person then
1977.] estate, or because of disputed
appearing to be interested in the claims, or for any other sufficient
administration of the deceased's property, reason, the estate should be
satisfies the court that there are grounds of administered as an insolvent estate
objection to the application, such as ought for the benefit of all parties
to be tried on viva voce evidence, then the interested in the estate.
court shall frame the issues which appear to
arise between the parties, and shall try the 554G. (1) Where an estate is deemed Where estate
same forthwith or on a day to be appointed to be insolvent at the date an application for insolvent,
for the purpose. applicant for
probate or letters of administration is made, probate, &c.,
the petitioner shall, in addition to the other to take steps to
When order 554E. If at the final hearing or on the averments required to be stated in the have it so
nisi shall be declared.
determination of the issues thus framed, it petition for probate or letters, set out the [87, Law 20 of
made absolute
and when shall appear to the court that the prima material facts upon which adjudication that 1977.]
discharged. facie proof of the material allegations of the the estate should be deemed to be insolvent
[86, Law 20 of petition has not been rebutted, then the is claimed, and shall contain detailed lists
1977.1
order nisi shall be made absolute, and a showing
certificate of heirship shall issue accordingly
to the petitioner. If, on the other hand, it (a) the names of all persons who to the
shall then appear to the court that the prima best of the petitioner's knowledge
facie proof of any material allegations in the and belief have claims against the
petition has been rebutted and that the estate;

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(b) the last known place of abode or expense of the petitioner not later than one
business of such persons; month prior to the date fixed in such order
nisi for the determination of the matters
(c) the sums claimed by each of such contained therein in accordance with the
persons and whether or not the provisions of section 532.
sums claimed are liquidated or
unliquidated amounts; and 554M. Any person interested in the Person
estate shall be entitled to appear on the day interested may
(d) whether or not the sums claimed or intervene.
fixed therein and may show cause or [87, Law 20 of
any part thereof are admitted by the support the application, and the court may 1977.]
petitioner. after due inquiry in accordance with the
provisions of Chapter XXIV, either dismiss
(2) In the petition so filed, the persons the petition or make the testamentary
who are required to be named as insolvency order nisi absolute.
respondents to the application for probate
or letters, shall be made respondents. 554N. The testamentary insolvency Order absolute
order absolute shall be in the form No. 93C to be
Where estate 554H. (1) Where after grant of probate in the First Schedule, and shall be
advertised.
insolvent, [87, Law 20 of
or letters an estate is deemed to be advertised in the same manner as the order 1977.]
executor or
administrator insolvent, the executor or administrator nisi and in such other manner if any, as the
to take steps to shall file a petition by way of summary court shall consider necessary in the
have it so procedure for an adjudication that the estate
declared. circumstances of the case.
[87, Law 20 of shall be deemed to be insolvent, and such
1977.] petition shall set out the material facts and
554P. As from the date on which the Actions and
the lists as are required to be filed under the execution
testamentary insolvency order nisi declaring
last preceding section. proceedings to
the estate insolvent is made, all actions in be stayed after
respect of admitted claims and all execution such order nisi.
(2) In such petition all persons named in [87, Law 20 of
proceedings against the estate of the
the original petition for grant of probate or 1977.]
deceased shall be stayed, subject however, to
letters shall be made respondents.
the right of any secured creditor who has
taken out execution proceedings, to proceed
Creditor, &c., 554J. (1) It shall be competent for a
may also apply to realize his security upon such conditions
creditor, heir. beneficiary, or other person
for as the court, having regard to the provisions
adjudication of interested in the estate, similarly to make
of the Insolvency Ordinance, shall order.
estate as application for adjudication that the estate
insolvent. should be deemed to be insolvent, and the
[87, Law 20 of
provisions of section 554G shall, mutatis 554Q. Where the executor named in the When court
1977.] may point fit
mutandis, apply to such application. will or the widow or widower is unwilling to
administer
proceed with the due administration of an estate.
(2) The applicant for probate or letters insolvent estate, or where the executor or [87, Law 20 of
or the executor or administrator of the administrator to whom probate or letters I977.]
estate, shall in addition be made respondent have been issued fails to administer the
to such application. estate with reasonable despatch, the court
may, having regard to the proper
Order nisi 554K. Upon the court being satisfied conservation of the estate and the interest of
declaring estate that the facts stated in the petition are prima all parties before it, appoint any fit person
insolvent. to administer the estate.
[87, Law 20 of facie established, it shall enter a
1977.] testamentary insolvency order nisi declaring
the estate to be insolvent in the form 554R. Where a testamentary insolvency How insolvent
order shall have been made, the estate shall estate to be
No. 93A in the First Schedule. distributed.
be distributed in accordance with the [87, Law 20 of
When order 554L. A copy of the testamentary following provisions: 1977.]
nisi to be insolvency order nisi shall be served on each
served.
[87, Law 20 of of the respondents named therein and notice (a) the funeral, testamentary and
1977.] of such order nisi in the form No. 93B in the administration expenses shall first
First Schedule shall be advertised at the be paid out of the assets available ;

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CIVIL PROCEDURE CODE [Cap.105
(b) subject as aforesaid the provisions amount to cover the property, if
for the time being in force under the any, in Sri Lanka to which the
law of insolvency with respect to letters of administration relate;
the estate of a person adjudged
insolvent shall apply and be and may require such evidence, if any, as it
observed in regard to the respective thinks fit as to the domicile of the deceased
rights of secured and unsecured person.
creditors as to the debts and
liabilities provable, the valuation of 554W. The court may also if it thinks fit Security for
on the application of any creditor require, payment of
annuities and future and contingent debts.
liabilities, and the priorities of debts before sealing, that adequate security be [87, Law 20 of
and liabilities. given for the payment of debts due from the 1977.]
estate to creditors residing in Sri Lanka.
Powers and 554S. An executor or administrator of
obligations of an insolvent estate shall have the same 554X. A duplicate of any probate or Duplicate or
executors and letters of administration sealed with the seal copy of
administrators. powers and be subject to the same probate or
[87, Law 20 of obligations as the assignee of an insolvent of the court granting the same, or a copy letters of
1977.] appointed under the Insolvency Ordinance. thereof certified as correct by or under the administration.
authority of such court shall have the same [ 87, Law 20
of 1977.]
Administration 554T. An appeal from a testamentary effect as the original,
of estates not insolvency order nisi or absolute declaring
to be stayed 554Y. The sealing of probate or letters Liabilities of
due to appeal. an estate insolvent shall not have the effect executors and
of administration under this Chapter shall
[87, Law 20 of of staying the further proceedings in adminis-
1977.] not affect the liability of an executor or trators.
administration, unless the Court of Appeal
administrator [87, Law 20 of
shall make order to the contrary. 1977.]
(a) to file within the time appointed by
[87, Law 20 of CHAPTER XXXVIIIB court an inventory of the deceased
1977.]
person's property and effects
FOREIGN PROBATES situated in Sri Lanka with valuation
of same as required by section 538 ;
Sealing of 554U. Where a Court of Probate or
foreign other authority in a foreign country has
probates or (b) to file, on or before the expiration of
letters of either before or after the 15th day of twelve months from the date of
administration. December, 1977, granted probate or letters such sealing, a true and final
[87, Law 20 of of administration in respect of the estate of
1977.1 account, as regards the deceased's
a deceased person, probate or letters so property and effects situated in Sri
granted may, on being produced to, and a Lanka, of his executorship or his
copy thereof deposited with, a competent administration, as the case may be,
court, be sealed with the seal of that court verified on oath or affirmation,
and thereupon shall be of like force and with all receipts or vouchers
effect and have the same operation in Sri attached as required by section 553 ;
Lanka as if granted by that court. and

Conditions to 554V. The court shall, before sealing the (c) to be compelled to make a judicial
be fulfilled probate or letters of administration under settlement of his account as
before sealing.
[87, Law 20 of this Chapter, be satisfied executor or administrator, with
1977.] respect to the deceased's property
(a) that the testamentary duty has been situated in Sri Lanka, under the
paid or secured in respect of so provisions of Chapter LV.
much, if any, of the estate as Is
liable to testamentary duty in Sri 554Z. For the purpose of all estates to Resealing court
Lanka; and which this Chapter applies deemed to be
court issuing
probate or
(b) in the case of letters of (a) all references in this Ordinance to letters of
administration, that security has any court as being the court from administration.
[87, Law 20
been given in a sum sufficient in which grant of probate or letters of 1977.]

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administration issued shall be the estate of the deceased
construed as references to the court person which is being
by which probate or letters of administered outside Sri
administration have been sealed Lanka is resident;
under this Chapter and all
references to the granting of " Court of Probate " means any court or
probate or letters of administration authority by whatever name
or to an order absolute declaring a ' designated having jurisdiction in
person entitled to such grant shall matters of probate ; and
be construed as referring to the
sealing of probate or letters of " probate" and " letters of
administration under this Chapter; administration" include any
instrument having in any foreign
(b) all references in the Stamp country the same effect which under
Ordinance to the grant of probate the law of Sri Lanka is given to
or letters of administration shall be probate and letters of
deemed to include a reference to the administration respectively.
sealing of probate or letters of
administration under this Chapter, CHAPTER XXXVIIIC
and all references to probate or
letters of administration shall be GENERAL AND TRANSITIONAL PROVISIONS [87, Law 20,
deemed to include a reference to IN TESTAMENTARY MATTERS of 1977.]
any probate or letters of
administration or to any duplicate
554CC. The provisions of the Stamp Stamp duty to
or certified copy thereof sealed be first charge
Ordinance shall apply to, and in relation to,
under this Chapter. on the estate of
every application, order or other document the deceased.
in testamentary proceedings and the [87, Law 20 of
British Courts 554AA. Notwithstanding the repeal of 1977.]
Resealing executor or administrator, as the case may
the British Courts Probate (Resealing)
Rules deemed be, shall be personally liable for the
to be in force. Ordinance*, the British Courts Resealing payment of such stamp duty. The amount
[87, Law 20 of Rules, 1939, shall be deemed to be and to
1977.] so paid by way of stamp duty shall be
continue in force for the purposes of this
recoverable by the executor or
Chapter as if the said Ordinance had not
administrator as a first charge on the estate
been repealed, and may be amended, varied,
of the deceased after the grant of probate or
altered or rescinded by rules made under
letters of administration.
Article 136 of the Constitution.
554DD. Where any person has prior to Transitional
Interpretation 554BB. In this Chapter provisions.
[87, Law 20 of the 15th day of December, 1977, died in Sri
[87, Law 20 of
1977.] Lanka leaving an estate and testamentary 1977.]
" competent court " means proceedings had not been commenced in
respect of such estate before the 15th day of
(a) the District Court of Colombo; or December, 1977, such proceedings may be
instituted under the provisions of this
(b) the District Court within the local Ordinance.
limits of whose jurisdiction
CHAPTER XXXIX
(i) the estate or any part of the estate
in Sri Lanka of the deceased ACTIONS RELATING TO PERSONS OF
person is situate ; or UNSOUND MIND

(ii) the executor or administrator-or 555. The expression " person of Definition of
unsound mind " as used in this Ordinance "person of
the attorney of the executor or unsound
, ,, , , ,
administrator of that part of shall, unless the contrary appears from the mind."

* Repealed by the Administration of Justice Law, No. 44 of 1973.


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CIVIL PROCEDURE CODE [Cap.105
context, mean every person found by due 560. The District Court may also at any Person alleged
course of law to be of unsound mind and time before or pending the inquiry, require to be of
unsound mind
incapable of managing his affairs. the person alleged to be of unsound mind to may be
attend at such convenient time and place as required to
it may appoint, for the purpose of being attend.
District Court 556. (1) Whenever any person who is personally examined by the court or by any
to institute possessed of property is alleged to be a
inquiry. person from whom the court may desire to
person of unsound mind, the District Court have a report of, or testimony as to, the
within whose jurisdiction such person is mental capacity and condition of such
residing may, upon such application as is person alleged to be of unsound mind. The
hereinafter mentioned, institute any inquiry
court may likewise make an order
for the purpose of ascertaining whether such authorizing any person or persons therein
person is or is not of unsound mind and named to have access to the person alleged
incapable of managing his affairs. to be of unsound mind for the purpose of a
personal examination.
Application (2) Application for such inquiry may be
for, how to made on petition in the way of summary 561. The District Court, if it think fit. Assessors.
be made. may appoint two or more persons to act as
procedure by any relative of the person
[88, Law 20 of alleged to be of unsound mind, or by a assessors to the court in the said inquiry.
1977.] Superintendent of Police, or at the instance
of the Attorney-General, or if the property 562. The issue to be tried on such Issue.
of the person alleged to be of unsound mind inquiry shall be whether the person alleged
consists in whole or in part of land, or of to be of unsound mind is or is not of
any interest in land, by the Government unsound mind and incapable of managing
Agent of the district in which it is situate. his affairs.

563. The trial of this issue shall be Trial of issue


When may 557. When the District Court on such effected by viva voce examination and to be public.
petition be application being made to it is not satisfied
dismissed. cross-examination of witnesses, as nearly as
by affidavit or other evidence that such may be as is hereinbefore directed for the
inquiry as aforesaid ought to be instituted, it trial of the matter of an ordinary civil
shall dismiss the petition. action; and the inquiry, whether held in
court or in a private house, shall be public.
Procedure on 55S. When the District Court on any
court being such application being made to it is satisfied 564. The person alleged to be of Person of
satisfied that
by affidavit or other sufficient evidence that unsound mind shall be present at the unsound mind.
to be present.
inquiry ought
to be such inquiry as aforesaid ought to be inquiry and shall take part as a party
instituted. instituted, it shall pass an order to that defendant therein either by his registered
effect and then appoint a time and place for attorney or counsel or in person, unless his
holding the inquiry. state of health, or his behaviour, is such as
to render either his being present or his
participating in the proceedings unfitting or
Proceeding in 559. As soon as such order shall have unseemly,
such case. been passed, the District Court shall cause a
copy of the petition and of the order made Any relative of the person alleged to be of
thereon to be served upon the person unsound mind may also, if the court thinks
alleged to be of unsound mind. If it shall fit, appear and take part in the inquiry on
appear that the person alleged to be of behalf of the person alleged to be of
unsound mind is in such a state that unsound mind,
personal service on him would be
ineffectual, the court may direct such 565. Upon the completion of the Adjudication
substituted service of the petition and order inquiry, the court shall adjudicate whether on the lssue.
as it shall think proper. The court may also the person alleged to be of unsound mind is
direct a copy of such petition and order to or is not of unsound mind and incapable of
be served upon any specified relative of the managing his affairs. And at the same time Costs.
person alleged to be of unsound mind. the court may make such order as to the

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payment of the cost of the inquiry by the 571. Every manager of the estate of a Powers of
person upon whose application it was made, person of unsound mind appointed as manager.
or by the person alleged to be of unsound aforesaid may exercise the same powers in
mind, if he be adjudged to be of sound the management of the estate as might have
mind, or out of his estate, if he be adjudged been exercised by the proprietor if not a
of unsound mind and incapable of person of unsound mind ; and may collect
managing his affairs, or otherwise, as it may and pay all just claims, debts, and liabilities
think proper. due to or by the estate of the person of
unsound mind. But no such manager shall Restrictions on
When petition 566. When a person has been adjudged have power to sell or mortgage the estate or manager's
powers.
to be dismissed not to be of unsound mind and not any part thereof, or to grant a lease of any
after inquiry.
incapable of managing his affairs, the court immovable property for any period
shall dismiss the petition. exceeding five years, without an order of the
District Court previously obtained.
Manager to be 567. When a person has been adjudged
appointed. to be of unsound mind and incapable of 572. (1) Every person appointed by the Inventory.
managing his affairs, the District Court District Court to be manager of the estate of
shall appoint a manager of the estate. Any a person of unsound mind shall, within a
near relative of the person of unsound mind time to be fixed by the court, deliver in
or any other suitable person may be court an inventory of the immovable
appointed manager. property belonging to the person of
unsound mind, and of all such movable
Guardian of 568. Whenever a manager of the estate property, sums of money, goods, and effects
person. of a person of unsound mind is appointed as he shall receive on account of the estate,
by the District Court, the court shall together with a statement of all debts due by
appoint a fit person to be guardian of the or to the same. And every such manager Account.
person of the person of unsound mind. The shall furnish to the court annually, within
manager may be appointed guardian: three months of the close of the year, an
account of the property in his charge,
Provided always that the heir-at-law of exhibiting the sums received and disbursed
the person of unsound mind shall not in any on account of the estate and the balance
case be appointed guardian of his person. remaining in his hands.

Allowance to 569. If the person appointed to be (2) If any relative of the person of
manager or manager of the estate of a person of unsound mind, or the Attorney-General, by
guardian. petition to the court, shall impugn the
unsound mind, or the person appointed to
be guardian of the person of a person of accuracy of the said inventory and
unsound mind, shall be unwilling to statement, or of any annual account, the
discharge the trust gratuitously, the court court may summon the manager and inquire
may fix such allowance or allowances to be summarily into the matter and make such
paid out of the estate of the person of order thereon as it shall think proper.
unsound mind as, under the circumstances
of the case, may be thought suitable. 573. All sums received by a manager on Excess over
account of any estate in excess of what may expenditure, to
be paid into
Duties of 570. The person appointed to be be required for the current expenses of the kachcheri.
guardian. guardian of the person of a person of person of unsound mind or of the estate
unsound mind shall have the care of his shall be paid into the kachcheri on account
person and maintenance. When a distinct of the estate, and shall be dealt with
guardian is appointed, the manager shall thereafter in such manner as is prescribed by
pay to the guardian such allowance as shall law in the case of suitors' deposits.
be fixed by the court, either at the time
when the guardian is appointed or after- 574. It shall be lawful for any relative of Relative may
wards, on an application made by such a person of unsound mind to sue for an sue for
account.
guardian by petition in the way of summary account from any manager, appointed
procedure, for the maintenance of the under this Ordinance, or from such person
person of unsound mind and of his family. after his removal from office or trust, or

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CIVIL PROCEDURE CODE [Cap.105
from his personal representative in case of think fit, to be applied for the maintenance
his death, in respect of any estate then or of the person of unsound mind and his
formerly under his care or management, or family.
of any sums of money or other property
received by him on account of such estate. 578. (1) When any person has been Further inquiry
adjudged to be of unsound mind and when person of
unsound mind
Manager or 575. (1) The District Court, for any incapable of managing his affairs, if such so found is
guardian how sufficient cause, may on the application of person or any other person acting on his alleged to have
to be removed. recovered.
[89. Law 20 of the guardian or of a relative of the person of behalf, or having or claiming any interest in
1977.] unsound mind, or of the Attorney-General, respect of his estate, shall represent by
Superintendent of Police, or (where the petition to the District Court, or if the court
property of the person of unsound mind shall be informed in any other manner, that
consists in whole or in part of land, or of the unsoundness of mind of such person has
any interest in land) of the Government ceased, the court may institute an inquiry
Agent, made by petition in the way of for the purpose of ascertaining whether such
summary procedure, remove any manager person is or is not still of unsound mind and
appointed by the court, and may appoint incapable of managing his affairs.
any other fit person in his room, and may
compel the person so removed to make over (2) The inquiry shall be conducted in the
the property in his hands to his successor, manner provided in section 560 and the four
and to account to such successor for all following sections of this Ordinance ; and if
moneys received or disbursed by him. it be adjudged that such person has ceased
to be of unsound mind and incapable of
(2) The court may also, for any managing his affairs, the court shall make
sufficient cause, in like manner remove any an order for his estate to be delivered over
guardian appointed by the court. to him, and such order shall be final.

Punishment for 576. The District Court may on any 579. In all cases in which this Chapter is Saving of
neglect or application made to it by a relative of the applicable, the procedure herein provided Mental
refusal to Diseases
account. person of unsound mind or a public officer shall be followed, anything in the Mental Ordinance.
under section 575 impose a fine not Diseases Ordinance to the contrary
exceeding five hundred rupees on any notwithstanding.
manager of the estate of a person of
unsound mind who wilfully neglects or 580. Every order made by a District Appeal to
refuses to deliver his accounts or any Court under the provisions of this Chapter Court of
property in his hands within the prescribed Appeal.
shall be subject to an appeal to the Court of
time or a time fixed by the court, and may Appeal, and such appeal may be prosecuted
realize such fine by attachment and sale of by, or at the instance of, the person
his property under the rules in force for the suspected or adjudged to be of unsound
execution of decrees of court, and may also mind, or of any relative or friend of his, or
commit him to close custody until he shall of any medical practitioner who shall have
deliver such accounts or property. certified or testified to his state of mind ;
and the Court of Appeal shall take
Where not 577. If it appears to the District Court, cognizance of such appeal, and deal with
necessary court having regard to the situation and condition the same as an appeal from an interlocutory
need not order of the District Court, and make such
appoint in life of the person of unsound mind and
manager. his family, and the amount and description order thereon as to the said court shall seem
of his property, to be unnecessary to fit. And it shall be the duty of the District
appoint a manager of the estate as Court to conform to and execute such
hereinbefore provided, the court may, order.
instead of appointing such manager, order
that the property if money, or if of any 580A. (1) The provisions contained in Provisions
other description the proceeds thereof, when this Chapter, other than section 555 shall applicable to
menially
realized in such manner as the court shall apply in the case of mentally deficient deficient
direct, be paid to such persons as the court may persons. persons.
[14.53 of
1980.]
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Cap.105] CIVIL PROCEDURE CODE
(2) For the purposes of this section, 583. Any relative or friend of a minor, Application for
" mentally deficient persons ", mean persons in respect of whose property such certificate appointment of
person to have
who are incapable of managing their own has not been granted, may apply by petition charge of
affairs by reason of being mentally ill, in the way of summary procedure to the property or
feeble, infirm or defective, though not Family Court, to appoint a fit person to person of
minor.
adjudicated as persons of unsound mind in take charge of the property and person or of
accordance with any law for the time being either property or person of such minor.
in force.
584. If the property is situate in more To be made in
Proceedings 581. No stamp duty shall, attach or be than one district, any such application as district where
minor resides.
exempt from payable for any application, process or aforesaid shall be made to the Family Court
stamp duty. of the district in which the minor at the time
other document filed in court under the
provisions of this Chapter. of the application resides.

585. (1) If it shall appear that any Charge of


CHAPTER XL person claiming a right to have charge of property of
minor to whom
the property of a minor is entitled to such to be granted.
ACTIONS FOR THE APPOINTMENT OF right by virtue of a will or deed, and-is
GUARDIANS willing to undertake the trust, the court
shall grant a certificate of curatorship to
Certificate of 582. Every person who shall claim a such person.
right to have right to have charge of property in trust for
charge of (2) If there is no person so entitled, or if
minor's a minor, under a will or deed, or by reason
property. of nearness of kin, or otherwise, may apply such person is unwilling to undertake the
to the Family Court for a certificate of trust and there is any near relative of the
curatorship ; and no person shall be entitled minor who is willing and fit to be entrusted
to institute or defend any action connected with the charge of his property, the court
with the estate of a minor, of which he may grant a certificate to such relative.
claims the charge, until he shall have
obtained such certificate: (3) The court may also, if it think fit Same person
(unless a guardian has been appointed by may be
appointed
the father), appoint such person as aforesaid guardian of
[4, 24 of Provided that when the property is below
1969.] or such relative, or any other relative or person.
the value of twenty thousand rupees, or for
friend of the minor, to be guardian of the
any other sufficient reason, any court
person of the minor.
having jurisdiction may allow any relative of
a minor to institute or defend an action on
(4) The court may call upon any grama Court may call
his behalf, although a certificate of upon grama
seva niladhari for a report on the character
curatorship has not been granted to such seva niladhari
and qualification of any relative or friend of to report on
relative;
the minor who may be desirous or willing to qualification.
be entrusted with the charge of the property
And provided further that any such or person of such minor, and who resides in
person so claiming to have charge of any the division.
such property under the provisions of a will,
of which probate shall have been duly 586. If no title to a certificate is When charge
granted, may institute or defend any such established to the satisfaction of the court of property
action without having obtained such may be granted
by a person claiming under a will or deed, to any fit
certificate. and if there is no near relative willing and fit person.
to be entrusted with the charge of the
Explanation.A person to whom letters of property of the minor, and the court shall
administration of a deceased person's estate think it necessary for the interest of the
have been granted under Chapter XXXVIII minor that provision should be made by
of this Ordinance does not thereby obtain a
the court for the charge of the property and
right to have charge, within the meaning of
this section, of such portion or share of his
person of such minor, the court may grant a
deceased's estate, if any there be, as descends certificate to any fit person whom the court
to a minor heir. may appoint for the purpose.

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CIVIL PROCEDURE CODE [Cap.105
Guardian to 587. (1) Whenever the court shall grant in the filing, of them; and the court may on
have charge of a certificate of curatorship to the estate of a any such application make such order as it
the person and
maintenance, minor who is resident in Sri Lanka to any shall think proper.
to be appointed person under the last section, it shall at the
at the same same time appoint a guardian to take charge 590. It shall be lawful for any relative of Any relative of
a minor with the leave of the court, or the minor may sue
time, of the person and maintenance of the minor, curator for
minor himself by a next friend, at any time accounts.
(2) The person to whom a certificate of during the continuance of the minority, to
curatorship has been granted may be appointed sue for an account from any person to whom
guardian, provided he would not be the legal a certificate shall have been granted under
heir of the minor, if the minor then died. the provisions of this Ordinance, or from
any such person after his removal from
his allowance. (3) If the person appointed to be guardian office or trust, or from his personal
be unwilling to discharge the trust representative in case of his death, in respect
gratuitously, the court may assign him such of any estate then or formerly under his care
allowance, to be paid out of the estate of the or management, or of any sums of money or
minor, as under the circumstances of the other property received by him on account
case it may think suitable. The court may of such estate.
also fix such allowance as it may think
proper for the maintenance and education of 591. The Family Court, for any Recall of the
the minor; and such allowance and the sufficient cause shown on petition by way of certificates.
allowance of the guardian (if any) shall be summary procedure preferred by the
paid to the guardian by the other person as guardian, or by a relative, or by a next
aforesaid. friend of the minor, or by the Attorney-
General, may recall any certificate granted
(4) In any case in which the court is under this chapter and may grant a
satisfied that it will be for the interest of the certificate to any other person; and may
minor, it may direct the raising of such compel the person whose certificate has been
allowance out of the corpus of the estate, by recalled to make over the property in his
mortgage or sale or such other mode of hands to his successor, and to account to
realization as it thinks fit. such successor for all moneys received and
disbursed by him. The court may also
Costs of 588. (1) In all inquiries held by the sufficient cause in like manner remove any
inquiries. Family Court under this Chapter, the court guardian appointed by the court.
may make such order as to the payment of
costs by the person on whose application the 592. (1) The Family Court may permit Resignation
any person to whom a certificate shall have and discharge
inquiry was made, or out of the estate of the of curator of
minor, or otherwise, as it may think proper. been granted under this Ordinance, and any property, or
guardian appointed by the court, to resign guardian of
Inventory, (2) Every curator other than one his trust; and may give him a discharge person of
therefrom on his accounting to his successor, minor.
deriving title under a will or deed, to whom
a certificate shall have been granted under duly appointed, for all moneys received and
this Chapter, shall, within a time to be fixed disbursed by him, and making over the
Accounts. by the court, file in court an inventory of the property in his hands.
property belonging to the minor, and shall (2) The application to be discharged
also twice every year, namely, within one from the trust shall be made by petition in
month from the first day of January and the the way of summary procedure, in which
first day of July, respectively, in each year, petition a near relative of the minor or the
file an account of the property in his charge, Attorney-General shall be named a
exhibiting the amounts received and respondent; and it shall be competent to the
disbursed on account of the estate and the court to direct that any other person be
balance in hand. made a respondent.
593. Every curator other than one Allowance of
Impeachment 589. Any relative of the minor or the deriving title under a will or deed, to whom curator.
of the minor himself by a next friend or the a certificate shall have been granted under
inventory and
accounts. Attorney-General may, by petition and by this Chapter, if he is not willing to discharge
way of summary procedure, impeach and the trust gratuitously, shall be entitled to
falsify the correctness of the said inventory receive such allowance, to be paid out of the
and periodic accounts, or complain of delay minor's estate, as the Family Court shall by

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order, made when the curator is appointed is the cause or part of the cause of action,
or afterwards on an application made by the the plaintiff shall make the alleged adulterer
curator by petition in the way of summary a co-defendant to the said action, unless he
procedure, think fit to direct. is excused from so doing on one of the
following grounds, to be allowed by the
Minor's 594. Every guardian appointed by the court upon an application for the
education. Family Court under this Chapter, who shall purpose:
have charge of any minor, shall be bound to
provide for his education in a suitable (1) that the defendant is leading the life
manner. The general superintendence and of a prostitute, and that the plaintiff
control of the education of all such minors knows of no person with whom the
shall be vested in the Family Court. adultery has been committed ;
CHAPTER XLI (2) that the name of the alleged
adulterer is unknown to the
ACTIONS FOR APPOINTMENT AND
plaintiff, although he has made due
REMOVAL OF TRUSTEES
efforts to discover it;
Trustees. 595. Applications to the District Court
for the exercise of its jurisdiction for the (3) that the alleged adulterer is dead;
appointment or removal of a trustee, and
not asking any further remedy or relief, may and it shall be lawful in any such plaint to
be made by petition in the way of the include a claim for pecuniary damages
summary procedure hereinbefore against such co-defendant.
prescribed.
599. The prayer to be excused from Affidavit where
CHAPTER XLII making the alleged adulterer a co-defendant co-defendant is
and the allegations of fact upon which it is excused.
MATRIMONIAL ACTIONS founded, supported by affidavit of fact or
other sufficient evidence, shall be embodied
Procedure in 596. In all actions for divorce a vinculo m the plaint.
matrimonial matrimonii, or for separation a mensa et
actions.
thoro, or for declaration of nullity of 599A. The provisions of sections 598 Sections 598
and 599 to
marriage, the pleadings shall be by way of and 599 shall, mutatis mutandis, apply apply where
plaint and answer, and such plaint and where in a plaint presented by a wife, adultery of the
answer shall be subject to the rules and adultery of the husband is a cause of action. husband is
alleged.
practice by this Ordinance provided with [91, Law 20 of
respect to plaints and answers in ordinary 1977.1
civil actions, so far as the same can be made 602.* When the court is satisfied on the Decree to be
evidence that the case of the plaintiff has passed
applicable, and the procedure generally in declaring
such matrimonial cases shall (subject to the been proved, the court shall pronounce a marriage
provisions contained in this Chapter) follow decree declaring such marriage to be dissolved.
dissolved in the manner and subject to all [93, Law 20 of
the procedure hereinbefore set out with 1977.]
respect to ordinary civil actions. the provisions and limitations in sections 604
and 605.
Court of 597. Any husband or wife may present a
district in plaint to the Family Court within the local 603. In any action instituted for Defendant
which
petitioner limits of the jurisdiction of which he or she, dissolution of marriage, if the defendant when entitled
to relief.
resides to have as the case may be, resides, praying that his opposes the relief sought on any ground
jurisdiction. or her marriage may be dissolved on any which would have enabled him or her to sue
ground for which marriage may, by the law as plaintiff for such dissolution, the court
applicable in Sri Lanka to his or her case, may in such action give to the defendant on
be dissolved. his or her application the same relief to
which he or she would have been entitled in
Co-defendant. 598. Upon any such plaint presented by case he or she had presented a plaint seeking
a husband, in which the adultery of the wife such relief.

* Sections 600 and 601 are repealed by Law No. 20 of 1977.


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CIVIL PROCEDURE CODE [Cap. 105

Decree to be 604. Every decree for dissolution of by a Family Court, whether entered
decree nisi in marriage shall, in the first instance, be a before or after the 15th day of
the first
instance. decree nisi not to be made absolute till after December, 1977, or
[94, Law 20 of the expiration of not less than three months
1977.1 from the pronouncement thereof, or such (b) notwithstanding that no application
longer period as the court may prescribe in has been made under subsection (1)
the said decree. but where there has been a
separation a mensa et thoro for a
Decree when to 605. Whenever a decree nisi has been period of seven years,
be made made and no sufficient cause has been
absolute.
shown why the same should not be made apply to the Family Court by way of
absolute as in the last preceding section summary procedure for a decree of
provided within the time therein limited, dissolution of marriage, and the court may,
such decree nisi shall on the expiration of upon being satisfied that the spouses have
such time be made absolute :
not resumed cohabitation in any case
referred to in paragraph (a), or upon the
[95, Law 20 of Provided that where such decree nisi is proof of the matters stated in an application
1977.] entered ex pane, the period during which made under the circumstances referred to in
the same should not be made absolute shall paragraph (b), enter judgment accordingly:
be computed from the date of service of
such decree nisi on the defaulting party.
Provided that no application under this
subsection shall be entertained by the court
Actions of 607.* (1) Any husband or wife may pending the determination of any appeal
nullity of present a plaint to the Family Court within
marriage. taken from such decree of separation. The
the local limits of the jurisdiction of which
provisions of sections 604 and 605 shall
he or she (as the case may be) resides,
apply to such a judgment.
praying that his or her marriage may be
declared null and void.
609. (1) In every case of such Separated
separation under this Chapter the wife shall, wife's property.
(2) Such decree may be made on any
from the date of the sentence and whilst the
ground which renders the marriage contract
separation continues, be considered as
between the parties void by the law
applicable to Sri Lanka. unmarried with respect to property of every
description which she may acquire, or which
may come to or devolve upon her.
Application for 608. (I) Application for a separation a
separation or mensa et thoro on any ground on which by
for divorce (2) Such property may be disposed of by
whether after the law applicable to Sri Lanka such
separation may be granted, may be made by her in all respects as an unmarried woman,
decree of
separation or either husband or wife by plaint to the and on her decease the same shall, in case
otherwise. she dies intestate, devolve as the same would
Family Court, within the local limits of the
jurisdiction of which he or she, as the case have devolved if she had died unmarried :
may be, resides, and the court, on being
satisfied on due trial of the truth of the Provided that if any such wife again
statements made in such plaint, and that cohabits with her husband, all such property
there is no legal ground why the application as she may be entitled to when such
should not be granted, may decree cohabitation takes place shall be held to her
separation accordingly. separate use, subject, however, to any
agreement in writing made between herself
[97, Law 20 of (2) Either spouse may and her husband whilst separate.
1977.]
(a) after the expiry of a period of two 610. In every case of such separation Separated
years from the entering of a decree under this Chapter the wife shall, whilst so wife's contracts &
of separation under subsection (1) separated, be considered as an unmarried rights to sue.

* Section 606 is repealed by Law No. 20 of 1977.


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Cap.105] CIVIL PROCEDURE CODE
woman for the purposes of contract, and the sentence of separation and of the
wrongs and injuries, and suing and being reversal thereof.
sued in any civil proceedings; and her
husband shall not be liable in respect of any 612. (1) Whenever in any plaint Co-defendant
contract, act, or costs entered into, done, presented by a husband the alleged adulterer may be order
to pay costs.
omitted, or incurred by her during the has been made a co-defendant, and the
separation : adultery has been established, the court may
order the co-defendant to pay the whole or
any part of the costs of the proceedings in
Provided that where, upon any such addition to any damages which may be
separation alimony has been decreed or awarded, where such damages have been
ordered to be paid to the wife, and the same claimed;
is "not duly paid by the husband, he shall be
liable for necessaries supplied for her use to Provided that the co-defendant shall not
the persons who supplied them; be ordered to pay the plaintiffs costs, nor
shall any damages be awarded

Provided also that nothing shall prevent (a) if the defendant was at the time of
the wife from joining, at any time during the adultery living apart from her
such separation, in the exercise of any joint husband and leading the life of a
power given to herself and her husband. prostitute; or

(b) if the co-defendant had not at the


When decree 611. (1) Any husband or wife, upon time of the adultery reason to
for separation the application of whose wife or husband, believe the defendant to be a
may be revised married woman.
by the court as the case may be, a decree of separation
which made it. has been pronounced, may, at any time
thereafter, present a petition to the court by (2) The provisions of the preceding [98, Law 20 of
which the decree was pronounced, praying subsection shall, mutatis mutandis, apply 1977.]
for a reversal of such decree, on the ground where a woman has been made a
that it was obtained in his or her absence at co-defendant.
the hearing, and that there was reasonable
excuse for such absence, and also for the 614.* (1) In any action under this Alimony
alleged desertion, where desertion was the Chapter, whether it be instituted by a pendents
husband or a wife, the wife may present a life.
ground of such decree.
petition for alimony pending the action.
Such petition shall be preferred and dealt
with as of summary procedure, and the
(2) Such petition shall be deemed and husband shall be made respondent therein;
shall be dealt with by the court as a plaint in and the court, on being satisfied of the truth
a regular action, and the party in whose of the statements therein contained, may
favour the decree of separation sought to be make such order on the husband for
reversed was passed shall be made a payment to the wife of alimony pending the
defendant therein. And the court may, after action as it may deem just:
trial in regular course of procedure, on
being satisfied of the truth of the allegations Provided that alimony pending the action
of such petition, reverse the decree shall in no case be less than one-fifth of the
accordingly, but such reversal shall not husband's average net income for the three
prejudice or affect the rights or remedies years next preceding the date of the order,
which any other person would have had in and shall continue, in case of a decree for
case it had not been decreed, in respect of dissolution of marriage or of nullity of
any debts, contracts, or acts of the wife incurred, marriage, until the decree is made absolute
entered into, or done between the time of or is confirmed, as the case may be.

* Section 613 is omitted, having been rendered inoperative by the repeal of section 606.
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CIVIL PROCEDURE CODE [Cap. 105
[99, Law 20 of (2) A husband may present a petition application of the whole or a portion of the
1977.] for alimony pending the action. The property settled, whether for the benefit of
provisions of the preceding subsection shall the husband or the wife, or of the children
apply, mutatis mutandis, to such (if any) of the marriage, or of both children
application. and parents, as to the court seems fit;

[99, Law 20 of (3) Where one of the spouses is not


1977.] possessed of sufficient income or means to Provided that the court shall not make
defray the cost of litigation, the court may any order for the benefit of the parents or
at any stage of the action order the spouse either of them at the expense of the
who is possessed of sufficient income or children.
means to pay to the other spouse such sum
on account of costs as it considers
reasonable. 619. In any action for obtaining a Court may
separation, the court may from time to time, before decrec
for separation
Settlement 615. (1) The court may, if it thinks fit, before making its decree, make such interim order
upon decree of orders, and may make such provision in the maintenance of
upon pronouncing a decree of divorce or minor children.
divorce or decree as it deems proper with respect to the
separation. separation, order for the benefit of either
[100, Law 20 spouse or of the children of the marriage or custody, maintenance, and education of the
of 1977.] of both, that the other spouse shall do any minor children, the marriage of whose
one or more of the following: parents is the subject of such action, and
may, if it thinks fit, direct proceedings to be
(a) make such conveyance or settlement taken for placing such children under the
as the court thinks reasonable of protection of the said court.
such property or any part thereof as
he may be entitled to ;
620. The court after a decree of Court may
separation may, upon application by way of after decree of
(b) pay a gross sum of money; separation
summary procedure for this purpose, make make order
respecting
(c) pay annually or monthly such sums from time to time all such orders and custody,&c.,
of money as the court thinks provisions, with respect to the custody, of minor
children.
reasonable; maintenance, and education of the minor
children, the marriage of whose parents is
(d) secure the payment of such sums of the subject of the decree, or for placing such
money as may be ordered under children under the protection of the said
paragraph (b) or paragraph (c) by court, as might have been made by such
the hypothecation of immovable decree or by interim orders in case the
property or by the execution of a proceedings for obtaining such decree were
bond with or without sureties, or by still pending.
the purchase of a policy of annuity
in an insurance company or other
institution approved by court. 621. In any action for obtaining a Court may
make interim
dissolution of marriage or a decree of nullity
- . . . r .. order and also
(2) The court may at any stage of marriage, the court may from time to provide for
discharge, modify, temporarily suspend and time, before making its decree absolute or custody, &c.,
of minor
revive or enhance an order made under its decree (as the case may be), make such children in
subsection (I). interim orders, and may make such decree.
provision in the decree absolute or decree,
Court may 618.* The court, after a decree absolute as the court deems proper with respect to
inquire into for dissolution of marriage or a decree of the custody, maintenance, and education of
ante-nuptial the minor children, the marriage of whose
and post nullity of marriage, may inquire into the
nuptial existence of ante-nuptial or post-nuptial parents is the subject of the action, and
settlements. settlements made on the parties whose may, if it thinks fit, direct proceedings to be
marriage is the subject of the decree, and taken for placing such children under the
may make such orders, with reference to the protection of the court.

* Sections 616 and 617 are repealed by Law No. 20 of 1977.


V/169
Cap.105] CIVIL PROCEDURE CODE
Court may 622. The court after a decree absolute (2) No reversal, discharge, or variation
after decree for dissolution of marriage or a decree of of such decree or order shall affect any
absolute make
orders nullity of marriage may, upon application rights or remedies which any person would
respecting by petition on summary procedure for the otherwise have had in respect of any
custody, &c., purpose, make from time to time all such contracts or acts of the wife entered into or
of minor
children. orders and provisions, with respect to the done between the dates of such decree or
custody, maintenance, and education of the order and of the reversal, discharge, or
minor children, the marriage of whose variation thereof.
parents was the subject of the decree, or for
placing such children under the protection (3) All persons who, in reliance on any
of the said court as might have been made such decree or order, make any payment to,
by such decree absolute or decree (as the or permit any transfer to be made, or act to
case may be), or by such interim orders as be done by the wife who shall have obtained
aforesaid. such decree or order, shall (notwithstanding
the same may then have been reversed,
Adjournment 623. The court may from time to time discharged, or varied, or notwithstanding
and further adjourn the hearing of any petition or plaint
evidence. the separation of the wife from her husband
under this Chapter, and may of its own may have ceased or may at some time since
motion require further evidence thereon if it the making of the decree or order have been
sees fit so to do. discontinued) be protected and indemnified
as if at the time of such payment, transfer,
Appeal. 624. All decrees and orders made by the or other act, such decree or order were valid
court in any action or proceeding under this and still subsisting without variation, and
Chapter shall be enforced and may be the separation had not ceased or been
appealed from, in the like manner as the discontinued, unless at the time of the
decrees and orders of the court made in the payment, transfer, or other act such persons
exercise of its original civil jurisdiction are had notice of the reversal, discharge, or
enforced, and may be appealed from under variation of the decree or order or of the
the laws, rules, and orders for the time being cessation or discontinuance of the
in force. separation.
Enforcement of 624A. An order for alimony or
alimony and 627. Save as expressly otherwise Saving of the
maintenance made under this Chapter may application of
maintenance provided in the Kandyan Marriage and
orders. be enforced either in accordance with the this Chapter as
Divorce Act and the Muslim Marriage and to Muslim and
[102, Law 20 provisions of this Ordinance or in the
of 1977.] Divorce Act, nothing in this Chapter Kandyan
manner provided in the Maintenance marriages.
contained shall be taken to apply to any
Ordinance. [104, Law 20
marriage between persons professing Islam of 1977.]
or to any marriage affected by the
When parties 625. Upon a decree nisi for divorce
may marry provisions of the Kandyan Marriage and
being made absolute under the provisions of
again. Divorce Act,
[103, Law 20 this Chapter, or when three months after the
of 1977.] passing of the decree thereunder of nullity
of marriage shall have elapsed, without an CHAPTER XLIII
appeal having being taken therefrom, or
upon the confirmation in appeal of any INTERPLEADER ACTIONS
decree, but not sooner, it shall be lawful for
the respective parties to the marriage to 628. When two or more persons claim Interpleader
marry again as if the prior marriage had adversely to one another payment of the actions.
been dissolved by death. same sum of money or delivery of the same
property from another person, whose only
Protection of 626. (1) Every decree for separation or interest therein is that of a mere
third parties order to protect property obtained by a wife stakeholder, and who is ready to render it to
dealing with
wife after under this Chapter shall, until reversed or the right owner, such stakeholder may
decree made discharged, be deemed valid, so far as institute an action of interpleader against all
and before necessary for the protection of any person the claimants, for the purpose of obtaining a
reversal.
dealing with the wife. decision as to the party to whom the

V/170
CIVIL PROCEDURE CODE [Cap. 105
payment should be made or the property and entering into evidence for the
delivered, and of obtaining indemnity for purpose of bringing their respective
himself: claims before the court.

Provided that if any action is pending in 632. Nothing in this Chapter shall be Who may not
taken to enable agents to sue their principals, be sued in
which the rights of all parties can properly lnterpleader.
or tenants to sue their landlords, for the
be decided, the stakeholder shall not
purpose of compelling them to interplead
institute an action of interpleader. with any person other than persons making
claim through such principals or landlords.
Form of plaint. 629. In every action of interpleader the
plaint must, in addition to the other Illustrations
statements necesssary for plaints, state
(a) A deposits a box of jewels with B as his agent.
C alleges that the jewels were wrongfully
(a) that the plaintiff has no interest in obtained from him by A, and claims them
the thing claimed otherwise than as from B. B cannot institute an interpleader
a mere stakeholder; action against A and C
(b) A deposits a box of jewels with B as his agent.
(b) the claims made by the defendants He then writes to C for the purpose of
making the jewels a security for a debt due
severally; and from himself to C. A afterwards alleges that
C's debt is satisfied, and C alleges the
(c) that there is no collusion between the contrary. Both claim the jewels from B. B
plaintiff and any of the defendants ; may institute an interpleader action against
A and C.

and such plaint shall also be supported by 633. When the action is properly Of the
an affidavit of the plaintiff verifying the instituted, the court may provide the plaintiff
therein.
's costs

statements contained therein. plaintilt s costs by giving him a charge on


the thing claimed, or in some other effectual
Property 630. When the thing claimed is capable way.
claimed to be of being paid into court or placed in the
deposited in 634. If any of the defendants in an Procedure
court custody of the court, the plaintiff must so interpleader is actually suing the stakeholder where
pay or place it before he can be entitled to stakeholder is
in respect of the subject of such action, the sued by
any order in the action. court in which the action against the defendant.
stakeholder is pending shall, on being duly
Procedure at 631. At the hearing the court may informed by the court which passed the
the hearing.
decree in the interpleader action in favour of
(a) declare that the plaintiff is the stakeholder, that such decree has been
discharged from all liability to the passed, stay the proceedings as against him,
defendants in respect of the thing and his costs in the action so stayed may be
claimed, award him his costs, and provided for in such action; but if and so
dismiss him from the action; far as they are not provided for in that
action, they may be added to his costs
or if it thinks that justice or convenience so incurred in the interpleader action.
require
CHAPTER XLIV
(b) retain all parties until the final
disposal of the action; ACTIONS WHICH FAIL FOR WANT OF
JURISDICTION
and if it finds that the admissions of the
parties or other evidence enable it to do so, 635. When an action fails for want of Power to make
jurisdiction in the court to entertain and order for costs
may notwith-
determine the matter ot the action on its standing want
merits, it shall, nevertheless, be competent of jurisdiction.
(c) adjudicate upon the title to the thing
claimed ; to the court to make such order on the
parties for the payment of costs as to it shall
or else it may
seem just; and every such order for the
(d) direct the defendants to interplead payment of costs is a decree for money
one another by filing statements within Chapter XX.

V/171
Cap.105] CIVIL PROCEDURE CODE
When want of 636. When the want of jurisdiction is security to meet the same, and that he does
jurisdiction caused by reason of the exclusive verily believe that the defendant is about to
caused by
exclusive jurisdiction of any court or tribunal, the quit Sri Lanka, and, if he shall at the same
jurisdiction of averment in the plaint made in pursuance of time further establish to the satisfaction of
any court or section 45 shall be considered as traversed, the Judge by affidavit or (if the Judge shall
tribunal,
averment of whether the defendant in his answer is silent so require) by viva voce testimony such facts
jurisdiction in in reference to it or not; and it shall be the that 'the Judge infers from them that the
plaint is duty of the court to dismiss the action on defendant is about to quit Sri Lanka, and
traversed.
[105,Law20 this preliminary issue in bar at the earliest will do so unless he be forthwith
of 1977.] stage of the action whereat, by the apprehended, such Judge may order a
admission of the parties or other evidence, it warrant (form No. 100, First Schedule) to
appears to the court that such court or arrest the body of the defendant and to
tribunal has exclusive jurisdiction. bring him before the court unless he shall
give bail in, or make deposit of, such an
Order of 637. The order of court so dismissing amount as the said Judge shall consider
dismissal not the action shall adjudicate upon the facts reasonable and adequate, which amount the
reversed on
appeal, which found the jurisdiction of such court said Judge at the time of making the said
conclusive as or tribunal and if not appealed against, or order shall set out on the face thereof; and
to jurisdiction if, in the event of an appeal, it is not the said warrant may be executed within
of other court.
[105, Law 20 reversed, this order shall be conclusive one calendar month from the date thereof,
of 1977.] evidence of jurisdiction on the same claim including the day of such date, and not
being made before such court or tribunal. afterwards, in any district of Sri Lanka;

And 638. Also the decision of any court or Provided that if the plaintiff shall be in
conversely. tribunal declining jurisdiction shall be possession of any security in part, he or the
[105, Law 20
of 1977.] conclusive evidence against such jurisdiction person making the application on his behalf
in an action upon the same claim brought in shall, on pain of punishment as for
any other court. contempt of- court, set forth the same
particularly in his application and the
PART V amount thereof, which amount shall be
deducted from the amount of security to be
PROVISIONAL REMEDIES required from the defendant.
CHAPTER XL VII* 651. The defendant being arrested on Arrested
such a warrant shall at once be brought up person to be
OF ARREST AND SEQUESTRATION BEFORE discharged on
JUDGMENT before the court by which it was issued in giving bail.
custody of the Fiscal, unless he shall give
Arrest before 650.* If a plaintiff or one of several reasonable security (form No. 101, First
judgment. plaintiffs in any action, either at the Schedule) to the Fiscal to appear and
commencement thereof or at any answer the plaintiffs claim and to abide by
subsequent period before judgment, shall, and perform the judgment of the court, or
by way of motion on petition, supported by to surrender himself or be surrendered to be
his own affidavit and viva voce examination charged in execution for the same ; in which
(should the Judge consider such examination case the Fiscal shall be authorized to
desirable), subject, however, to the discharge him. If he is brought before the
exceptions hereinafter contained, satisfy the court under the warrant, or if he appears in
Judge that he has a sufficient cause of discharge of the bail taken by the Fiscal, he
action against the defendant, either in must give bail (form No. 102, First
respect of a money claim of or exceeding Schedule) to abide by and perform the
[106, Law 20 one thousand five hundred rupees or judgment of the court, and pay any sum or
of 1977.] because he has sustained damage to that sums which may be awarded against him or
amount, and that he has no adequate to surrender himself or be surrendered by

* Chapter XLVSection 639, is repealed by Ordinance No. 9 of 1917 ;


Sections 640 to 644 (both inclusive), are repealed by Ordinance No. 21 of 1927 ;
Chapter XLVI Sections 645 to 648 (both inclusive),is repealed by Act No. 7 of 1949;
Section 649 is repealed by Ordinance No. 21 of 1927.
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CIVIL PROCEDURE CODE [Cap.105
his sureties, to be charged in execution for directing him to seize and sequester the
the same ; or if he is unable or unwilling to houses, lands, goods, money, securities for
otherwise give such bail, he shall be committed to money and debts, wheresoever or in whose
committed to prison (form No. 103, First Schedule) until custody soever the same may be within his
prison.
he does so, or until the determination of the district, to such value as the court shall
action ; and in the event of the decree being think reasonable and adequate and shall
passed against him, then until the execution specify in the mandate, and to detain or
of the decree subject to the provisions of secure the same to abide the further orders
Chapter XXII in regard to imprisonment in of the court.
execution of a decree for money ; and
Explanation. Sequestration of immovable property
Provided also that no person shall in any has the effect of sequestering all rents and
case be imprisoned under this section for a profits which proceed thereout, pending the
longer period than three months before sequestration.
decree. 654. Before making the order for a Plaintiff to give
warrant of arrest or mandate of security before
Arrested 652. The defendant may, instead of sequestration, the Judge shall require the
such warrant
person may of arrest or
giving bail, as is hereinbefore directed, plaintiff to enter into a bond (form No. 105, sequestration is
deposit money
with Fiscal deposit with the Fiscal or in court the sum First Schedule), with or without sureties, in issued.
instead of mentioned in the warrant, and thereupon he the discretion of the Judge, to the effect that
giving bail. shall be discharged from custody, and a the plaintiff will pay all costs that may be
minute of the same shall be made on the awarded and all damages which may be
warrant; and the sum so deposited shall be sustained by reason of such arrest or
applied in satisfaction of the judgment sequestration, by the defendant or by any
should the same eventually pass against the other person in whose possession such
defendant, and the surplus, if any, shall be property shall have been so sequestered;
refunded to the defendant. and it shall be competent to the court to
award such damages and costs of suit either
Of 653. If a plaintiff in any action, either at to the defendant or to those in whose
sequestration the commencement thereof or at any
before possession such property shall have been so
judgment. subsequent period before judgment, shall, sequestered.
by way of motion on petition supported by
his own affidavit and viva voce examination 655. In substitution for the affidavit of Who may
(if the Judge should consider such the plaintiff required by sections 650 and make affidavit
examination necessary) satisfy the Judge in lieu of
653 plaintiff.
that he has a sufficient cause of action
[107, Law 20 against the defendant, either in respect of a (a) when the action is brought by the
of l977.] money claim of or exceeding one thousand Attorney-General, then any officer
five hundred rupees or because he has of the State ; and
sustained damage to that amount, and that
he has no adequate security to meet the (b) when the action is brought by a
same, and that he does verily believe that corporation, board, public body, or
the defendant is fraudulently alienating his company, then any principal officer
property to avoid payment of the said debt of such corporation, board, public
or damage ; and if he shall at the same time body, or company ; and
further establish to the satisfaction of the
Judge by affidavit or (if the Judge should so (c) when the plaintiff is absent from Sri
require) by viva voce testimony such facts Lanka, then his attorney duly
that the Judge infers from them that the authorized to bring and conduct the
defendant is fraudulently alienating his action; and
property with intent to avoid payment of
the said debt or damage, or that he has with (d) when the plaintiff, or if there are
such intent quitted Sri Lanka leaving more plaintiffs than one when such
therein property belonging to him, such
of the plaintiffs as are in Sri Lanka,
Judge may order a mandate (form No. 104, or when such attorney of the
First Schedule) to issue to the Fiscal, plaintiff as is just above-mentioned

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is or are unable from want of 660. Sequestration before judgment Effect of
sequestration
personal knowledge or from bodily shall not affect the rights, existing prior to on prior rights.
or mental infirmity to make the the sequestration, of persons not parties to
required affidavit, then any the action, nor bar any person holding a
recognized agent of the plaintiff, decree against the defendant from applying
for the sale of the property under
may be allowed by the court to make an sequestration in execution of such decree.
affidavit in these matters instead of the
plaintiff: 661. Where property is under Subsequent
sequestration by virtue of the provisions of seizure of
Provided that in each of the foregoing property under
this Chapter, and a decree is given in favour decree
cases the person who makes the affidavit of the plaintiff, it shall not be necessary to unnecessary.
instead of the plaintiff must be- a person again seize the property as preliminary to
having personal knowledge of the facts of sale or delivery in execution of such decree.
the cause of action, and must in his affidavit
swear or affirm that he deposes from his CHAPTER XLVIII
own personal knowledge of the matter
therein contained, and shall be liable to be OF INJUNCTIONS
examined as to the subject-matter thereof at
the discretion of the Judge, as the plaintiff 662. Every application for an injunction When
would have been if the affidavit had been for any of the purposes mentioned in section Injunction may
be granted.
made by him. 54 of the Judicature Act, except in cases [I5,53 of
where an injunction is prayed for in a plaint 1980.]
Punishment for 656. Any person wilfully making any in any action, shall be by petition, and shall
wilful false false statement by affidavit or otherwise in
statement. be accompanied by an affidavit of the
the course of any of the proceedings applicant or some other person having
aforesaid may be punished as for a knowledge of the facts, containing a
contempt of court, besides his liability to be statement of the facts on which the
tried and punished under the Penal Code application is based.
for the offence of giving false evidence
where such statement is on oath or 663. An injunction granted by the court Disobedience
affirmation. on any such application may in case of to injunction
how punished.
disobedience be enforced by the punishment
Manner of 657. The sequestration ordered in of the offender as for a contempt of court.
sequestration. pursuance of section 653 shall be made in
the manner hereinbefore provided for 664. The court shall in all cases, except Application to
sequestration or seizure of property when it appears that the object of granting be on notice to
opposite party.
preliminary to sale thereof in execution of a the injunction would be defeated by the
decree for money. delay, before granting an injunction cause
the petition of application for the same
Manner of 658. If any claim be preferred to the together with the accompanying affidavit to
investigating property sequestered before judgment, such
any claim to be served on the opposite party; and where
property claim shall be investigated in the manner the application is made after the defendant
sequestered. hereinbefore provided for the investigation has answered, the injunction shall in no case
of claims to property seized in execution of be granted before such service. But the court
a decree for money. may in its discretion enjoin the defendant
until the hearing and decision of the
Costs and 659. If upon any such investigation the application.
damages where court is satisfied that the property
sequestration
wrongful. sequestered was not the property of the 665. An injunction directed to a Effect on
defendant, it shall pass an order releasing corporation or board or other public body corporation,
such property from seizure, and shall decree &c.
or company is binding not only on the
the plaintiff to pay such costs and damages corporation, board, public body, or
by reason of such sequestration, as the court company itself, but also on all members or
shall deem meet. If otherwise, the court officers of the corporation, board, public
shall disallow the claim, and make such body, or company whose personal action it
order as to costs as it shall deem meet. seeks to restrain.

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CIVIL PROCEDURE CODE [Cap.105
How set aside 666. An order for an injunction made (c) for all or any of the purposes
or varied. under this Chapter may be discharged, or aforesaid authorize any samples to
varied, or set aside by the court, on be taken or any observation to be
application made thereto on petition by way made, or experiment to be tried,
of sum. nary procedure by any party which may seem necessary or
dissatisfied with such order. expedient for the purpose of
obtaining full information or
When court 667. If it appears to the court that the evidence.
may award injunction was applied for on insufficient
compensation
to respondent. grounds, or if, after the issue of an 670. Every application under either of the Application
injunction which it has granted, the action is two preceding sections shall be made by herein to be
dismissed or judgment is given against the made by way
petition in the way of summary procedure; of summary
applicant by default or otherwise, and it and every party who is sought to be affected procedure.
appears to the court that there was no by the order must be named a respondent in
probable ground for applying for the the petition. Any such application may be
injunction, the court may, on the made by a plaintiff after service of
application of the party against whom the summons, or by a defendant after he has
injunction issued, award against the party appeared in the action.
obtaining the same in its decree such sum as
it deems a reasonable compensation for the CHAPTER L
expense or injury caused to such party by
the issue of the injunction. An award under OF THE APPOINTMENT OF RECEIVERS
this section shall bar any action for
compensation in respect of the issue of the 671. Whenever it appears to the court to When court
injunction. be necessary for the restoration, may appoint a
receiver.
preservation, or better custody or
CHAPTER XLIX management of any property, movable or
immovable, the subject of an action, or
OF INTERIM ORDERS
under sequestration, the court may on the
Order for sale 668. Any court may, on the application application of any party who shall establish
of perishable of any party to an action, order the sale by a prima facie right to or interest in such
property. property, by order
any person named in such order, and in
such manner and on such terms as it thinks
fit, of any movable property being the (a) appoint a receiver of such property,
subject of such action, which is subject to and, if need be,
speedy and natural decay. The party
carrying out the sale shall, within such time (b) remove the person, in whose
as the court shall limit, and after deducting possession or custody the property
thereout such expenses as the court allows may be, from the possession or
him, deposit the proceeds of the sale in custody thereof;
court to the credit of the action.
(c) commit such property to the custody
Order for 669. The court may, on the application or management of such receiver;
detention, of any party to an action, and on such terms and
preservation,
or inspection as it thinks fit
of property.
(d) grant to such receiver such fee or And give him
(a) make an order for the detention, commission on the rents and profits powers over
subject of
preservation, or inspection and of the property by way of action or
survey of any property being the remuneration as the court thinks fit, sequestration.
subject of such action ; and all such powers as to bringing
and defending actions and for the
(b) for all or any of the purposes realization, management,
aforesaid authorize any person to protection, preservation, and
enter upon or into any land or improvement of the property, the
building in the possession of any collection of the rents and profits
other party to such action ; and thereof, t h e a p p l i c a t i o n and

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Cap.105] CIVIL PROCEDURE CODE
disposal of such rents and profits, and the PART VI
execution of instruments in writing, as the
owner himself has, or such of those powers OF SPECIAL PROCEEDINGS
as the court thinks fit.
CHAPTER LI

Notice of 672. Notice of an application for the OF REFERENCE TO ARBITRATION


application. appointment of a receiver under this
Chapter must be served on the adverse 676. (I) If all the parties to an action Matter in
desire that any matter in difference between difference ir
party, unless he has left Sri Lanka without action may by
leaving a recognized agent, or unless he has them in the action be referred to arbitration, consent of
failed to appear in the action and the time they may at any time before judgment is parties be
pronounced apply, in person or by their referred to
limited for his appearance has expired ; or if arbitration.
he has left a recognized agent, such notice respective registered attorneys, specially
may be given to such agent. athorized in writing in this behalf, to the
court for an order of reference.

(2) Every such application shall be in Mode of


Receivers to 673. Every receiver so appointed as writing and shall state the particular matters submission.
give security aforesaid shall
and pass sought to be referred, and the written
accounts. authority of the registered attorney to make
it shall refer to it, and shall be filed in court
(a) give such security (if any) as the at the time when the application is made,
court thinks fit duly to account for and shall be distinct from any power to
what he shall receive in respect of compromise or to refer to arbitration which
the property; may appear in the proxy constituting the
registered attorney's general authority to
represent his client in the action.
(b) pass his accounts at such periods
and in such forms as the court (3) The arbitrator shall be nominated by Appoinimer
directs; the parties in such manner as may be agreed of arbitratior
upon between them.

(c) pay the balance due from him (4) If the parties cannot agree with when court
therein as the court directs ; and respect to such nomination or if the person may nominate
arbitrator.
whom they nominate refuses to accept the
arbitration, and the parties desire that the
nomination shall be made by the court, the
(d) be responsible for any loss court shall nominate the arbitrator.
occasioned to the property by his
wilful default or gross negligence. 677. (1) The court shall, by order, refer The matter in
to the arbitrator the matter in difference difference to
referred to
which he is required to determine, and shall arbitrator b'
Power of court 674. The court may at any time, on fix such time as it thinks reasonable for the order of cou
to remove, or sufficient cause shown therefor, remove a
require fresh
delivery of the award and specify such time
security. receiver or require him to give fresh in the order.
security.
(2) When once a matter is referred to
arbitration, the court shall not deal with it
Powers 675. Nothing in sections 671 and 673 in the same action, except as hereinafter
conferable by authorizes or empowers the court to remove provided.
the court not
to exceed those from the possession or custody of property
of parties under sequestration any person whom the 678. (1) If the reference be to two or Appointmer
themselves. parties to the action or some or one of them more arbitrators, provision shall be made in of an umpire
have or has not a present right so to the order for a difference of opinion among
remove. the arbitrators

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CIVIL PROCEDURE CODE [Cap. 105
(a) by the appointment of an umpire; or (2) Persons not attending in Power of
accordance with such process, or making abritrators
evidence.
(b) by declaring that the decision shall any other default, or refusing to give their
be with the majority if the major evidence, or being guilty of any contempt to
pan of the arbitrators agree ; or an arbitrator or umpire during the
investigation of the matters referred, shall
be subject to the tike disadvantages,
(c) by empowering the arbitrators to
penalties, and punishments, by order of the
appoint an umpire; or
court on the representation of such
arbitrator or umpire, as they would incur
(d) otherwise, as may be agreed between for the like offences in actions tried before
the parties ; or if they cannot agree, the court.
as the court determines.
683. If from the want of the necessary Extension of
(2) If an umpire is appointed, the court evidence or information, or from any other time for award.
shall fix such time as it thinks reasonable cause, the arbitrators cannot complete the
for the delivery of his award in case he is award within the period specified in the
required to act. order, the court may, if it thinks fit, either
grant a further time, and from time to time
In event of 679. If the arbitrator, or, where there enlarge the period for the delivery of the
death, &c., are more arbitrators than one, any of the award, or make an order superseding the
court may arbitration, and in such case shall proceed
appoint new arbitrators, or the umpire, dies, or refuses,
arbitrator; or or neglects, or becomes incapable to act, or with the action.
supersede leaves Sri Lanka under circumstances
arbitration.
showing that he will probably not return at 684. When an umpire has been When umpire
appointed, he may enter on the reference in may enter on
an early date, the court may in its discretion the reference in
either appoint a new arbitrator or umpire in the place of the arbitrators lieu of
the place of the person so dying, or refusing, arbitrators.
or neglecting, or becoming incapable to act, (a) if they have allowed the appointed
or leaving Sri Lanka, or make an order time to expire without making an
superseding the arbitration, and in such case award; or
shall proceed with the action.
(b) when they have delivered to the
court or to the umpire a notice in
When court 680. Where the arbitrators are
may appoint writing stating that they cannot
empowered by the order of reference to
umpire. agree.
appoint an umpire and fail to do so, any of
the parties may serve the arbitrators with a
685. When an award in an action has Award to be
written notice to appoint an umpire; and if
been made, the persons who made it shall filed in court.
within seven days after such notice has been
sign it and cause it to be filed in court,
served, or such further time as the court
together with any depositions and
may in each case allow, no umpire be
documents which have been taken and
appointed, the court, upon the application
proved before them ; and notice of the filing
of the party who has served such notice as
shall be given to the parties.
aforesaid, may appoint an umpire.
686. Upon any reference by an order of Award may be
Powers of 681. Every arbitrator or umpire in form of
court the arbitrators or umpire may, with special
umpire case.
appointed under the foregoing sections shall the consent of the court, state the award as
appointed after
reference. have the like powers as if his name had been to the whole or any part thereof in the form
inserted in the order of reference. of a special case, for the opinion of the
court; and after the filing of such special
Court to issue 682. (1) The court shall issue the same case upon notice to the parties, the court
process. processes to the parties and witnesses whom shall upon an appointed day hear argument
the arbitrators or umpire desire to examine and deliver its opinion thereon; and such
as the court may issue in actions tried before opinion shall be added to and form part of
it. the award.

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Application to 687. Within fifteen days from the date (a) corruption or misconduct of the
set aside or of receipt of notice of the filing of the award arbitrator or umpire;
correct the
award. any party to the arbitration may by petition
apply to the court to set aside the award, or (b) either party having been guilty of
to modify or to correct the award, or to fraudulent concealment of any
remit the award to the arbitrators for matter which he ought to have
reconsideration, on grounds mentioned in disclosed, or of wilfully misleading
the following sections. or deceiving the arbitrator or
umpire;
When court 688. The court may, by order, modify or
may correct correct an award (c) the award having been made after
award.
the issue of an order by the court
(a) where it appears that a part of the superseding the arbitration and
award is upon a matter not referred restoring the action;
to arbitration, provided such part
can be separated from the other and no award shall be valid unless made When award is
within the period allowed by the court. not valid.
part and does not affect the
decision on the matter referred ; or
692. (1) If the court sees no cause to Judgment to be
(b) where the award is imperfect in remit the award or any of the matters according to
the award.
form, or contains any obvious error referred to arbitration for reconsideration in
which can be amended without manner aforesaid, and if no application has
affecting such decision. been made to set aside the award, or if it has
been made and the court has refused such
Court may 689. The court may also make such application, then the court shall, after the
make order as orders as it thinks fit respecting the costs of time for making such application has
to costs. expired, on a day of which notice shall be
the arbitration, if any question arises
respecting such costs and the award given to the parties, proceed to give
contains no sufficient provision concerning judgment according to the award ; or if the
them. award has been submitted to it in the form
of a special case, according to its own
opinion on such case.
When court 690. The court may remit the award on
may remit any matter referred to arbitration to the
award for re- (2) Upon the Judgment so given a decree And decree to
consideration. reconsideration of the same arbitrators or shall be framed, and shall be enforced in be framed
umpire, upon such terms as it thinks fit thereon.
manner provided in this Ordinance for the
execution of decrees.
(a) where the award has left
undetermined any of the matters (3) No appeal shall lie from such decree
referred to arbitration, or when it except in so far as the decree is in excess of,
determines any matter not referred or not in accordance with, the award.
to arbitration;
693. (1) When any persons agree in Agreement to
writing that any difference between them refer any
(b) where the award is so indefinite as to difference to
be incapable of execution; shall be referred to the arbitration of any arbitration
person named in the agreement, or to be may be filed in
appointed by any court having jurisdiction court.
(c) where an objection to the legality of
in the matter to which the agreement relates,
the award is apparent upon the face
the parties thereto, or any of them, may
of it.
apply that the agreement be filed in such
court.
When an 691. (1) An award remitted under
award is void. section 690 becomes void on the refusal of (2) The application shall be by petition Application
the arbitrators or umpire to reconsider it. in the way of summary procedure as therefor.
hereinbefore provided, in which the parties
When may an (2) No award shall be set aside except to the agreement other than the petitioner
award be set on one of the following grounds, namely : or petitioners shall be named respondents.
aside.

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CIVIL PROCEDURE CODE [Cap.105
Court to order 694. On such application being made, if (a) sum of money fixed by the parties,
reference no sufficient cause be shown to the or to be determined by the court,
thereon.
contrary, the court may cause the agreement shall be paid by one of the parties
to be filed, and shall make an order of to the other of them; or
reference thereon; and may also nominate
the arbitrator when he is not named therein (b) some property, movable or
and the parties cannot agree as to the immovable, specified in the
nomination. agreement, shall be delivered by one
of the parties to the other of them;
Provisions of 695. The foregoing provisions of this or
this Chapter to Chapter, so far as they are consistent with
apply to such
reference. any agreement so filed, shall be applicable (c) one or more of the parties shall do,
to all proceedings under an order of or refrain from doing, some other
reference made by the court under the last particular act specified in the
preceding section, and to the award of agreement.
arbitration and to the enforcement of the
decree founded thereupon.
(2) Every case stated under this section
shall be divided into consecutively
Award made 696. When any matter has been referred
on a reference numbered paragraphs, and shall concisely
to arbitration without the intervention of a
independently state such facts and documents as may be
of court may Court of Justice, and an award has been
necessary to enable the court to decide the
be filed in made thereon, any person interested in the
court. award may within six months of the making question raised thereby.
of the award apply to the court having
jurisdiction over the matter to which the 700. If the agreement is for the delivery When value of
award relates, that the award be filed in of any property, or for the doing, or the property is to
be stated
court. refraining from doing, any particular act, therein.
the estimated value of the property to be
Application 697. The application shall be by petition delivered, or to which the act specified has
therefor. in the way of summary procedure as reference, shall be stated in the agreement.
hereinbefore provided, in which the parties
to the arbitration other than the petitioner 701. The agreement, if framed in To what court
or petitioners shall be named respondents. accordance with the rules hereinbefore agreement may
be presented.
contained, may for the determination of the
Filing and 698. If on the hearing of such question or questions thereby raised be
enforcement of application no ground such as is mentioned brought before the court which would have
such award- jurisdiction to entertain an action, the
or referred to in sections 690 or 691, be
shown against the award, the court shall amount or value of the subject-matter of
order it to be filed, and such award shall which is the same as the amount or value of
then take effect as an award made under the the subject-matter of the agreement. And
provisions of this Chapter. for this purpose it shall be presented to the
court as an exhibit to a petition preferred by
one or more of the parties to the agreement
CHAPTER LII in the way of summary procedure, to which
petition the other parties to the agreement
OF PROCEEDINGS ON AGREEMENT OF shall be named repondent, and in which
PARTIES petition it shall be alleged that the
agreement was duly executed by all the
Agreed 699. (1) Parties claiming to be parties, and that the controversy is real, and
statement of interested in the decision of any question of that the agreement is submitted bona fide
case for
decision of fact or law may enter into an agreement in for the purpose of determining the rights of
court. writing, stating such question in the form of the parties ; such petition shall be verified by
a case for the opinion of the court, and affidavit, and the prayer of the petition shall
providing that upon the finding of the court conform to the stipulations of the agreement
with respect to such question within section 699.

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Judgment and 702. If at the hearing of this petition on 705. (1) The plaintiff who so sues and Instrument to
decree thereon. consideration of the evidence before it the obtains such summons as aforesaid must on be produced
with the plaint,
court is satisfied that the allegations of the presenting the plaint produce to the court and affidavit to
petition are established, and is further of the instrument on which he sues, and he be made.
opinion that the subject of the agreement is must make affidavit that the sum which he
fit to be decided, then it shall proceed to claims is justly due to him from the
pronounce judgment between the parties defendant thereon.
upon the facts and questions stated in the
agreement, and upon the Judgment so given (2) If the instrument appears to the
a decree shall be framed and passed, and court to be properly stamped, and not to be
shall be enforced in the manner provided in open to suspicion by reason of any
this Ordinance for the execution of decrees. alteration or erasure or other matter on the
face of it, and not to be barred by
prescription, the court may in its discretion
CHAPTER LIII
make an order for the service on the
defendant of the summons above
OF SUMMARY PROCEDURE ON LIQUID mentioned.
CLAIMS
(3) The day to be inserted in the notice Summons to
Action by 703. All actions where the claim is for a as the day for the defendant's appearance be of short
summary date.
debt or liquidated demand in money arising shall be as early a day as can be
procedure on
liquid claims. upon a bill of exchange, promissory note, or conveniently named, regard being had to the
cheque, or instrument or contract in writing distance of the defendant's residence from
for a liquidated amount of money, or on a the court.
guarantee where the claim against the
principal is in respect at such debt or 706. The court shall, upon application When leave to
liquidated demand, bill, note, or cheque, by the defendant, give leave to appear and defend maybe
granted.
may, in case the plaintiff desires to proceed to defend the action upon the defendant
under this Chapter, be instituted by paying into court the sum mentioned in the
presenting a plaint in the form prescribed by summons, or upon affidavits satisfactory to
this Ordinance, but the summons shall be in the court which disclose a defence or such
the form No. 19 in the First Schedule, or in facts as would make it incumbent on the
such other form as the Supreme Court may holder to prove consideration, or such other
from time to time prescribe. facts as the court may deem sufficient to
support the application and on such terms
Defendant not 704. (1) In any case in which the plaint as to security, framing, and recording issues,
to appear or and summons are in such forms or otherwise, as the court thinks fit.
defend except
respectively, the defendant shall not appear
with leave. 707. After decree the court may, under When court
or defend the action unless he obtains leave
special circumstances, set aside the decree, may set aside
from the court as hereinafter mentioned so decree, &c.
and if necessary stay or set aside execution,
Without such to appear and defend ; and in default of his
leave decree at obtaining such leave or of appearance and and may give leave to appear to the
once with summons and to defend the action, if it
speedy defence in pursuance thereof, the plaintiff
seem reasonable to the court so to do, and
execution. shall be entitled to a decree for any sum not
on such terms as the court thinks fit.
exceeding the sum mentioned in the
summons, together with interest to the date 708. In any proceeding under this Court may
of the payment, and such costs as the court Chapter the court may order the instrument order deposit
may allow at the time of making the decree. of instrument.
on which the action is founded to be
forthwith deposited with an officer of the
(2) The defendant shall not be required, court, and may further order that all
as a condition of his being allowed to proceedings shall be stayed until the
appear and defend, to pay into court the plaintiff gives security for the costs thereof.
sum mentioned in the summons, or to give
security therefor, unless the court thinks his 709. The holder of every dishonoured Recovery of
defence not to be prima facie sustainable, or bill of exchange or promissory note shall expenses
incurred in
feels reasonable doubt as to its good faith. have the same remedies for the recovery of noting.

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CIVIL PROCEDURE CODE [Cap.105
the expenses incurred in noting the same for same from him, or who refuses to impart
non-acceptance, or non-payment, or any knowledge or information he may have
otherwise, by reason of such dishonour, as concerning the same, or to disclose any
he has under this Chapter for the recovery other fact which will in any way aid the
of the amount of such bill or note. petitioner in making discovery of such
property, so that it cannot be inventoried
Saving clause. 710. Except as provided in this Chapter, and valued; and praying an inquiry
the procedure in actions under this Chapter respecting it, and that the person
shall be the same as the procedure in actions complained of may be cited to attend the
instituted under Chapter VII. inquiry and to be examined accordingly.

Special trial 711. In every court in which cases may (2) The petition may be accompanied by
roll to be kept. be instituted under this Chapter, a special affidavits or other evidence tending to
trial roll shall be kept of such cases in which support the allegations thereof.
issue has been joined. And it shall be
competent for the Judge of such court to (3) If the court is satisfied upon the
order such cases to be set down for hearing materials so presented that there are
on such days, and on the day fixed for the reasonable grounds for inquiry, it shall issue
hearing of any such case to direct the same a citation accordingly, which may be made
to be called on for trial, in such order as to returnable forthwith, or at such future time
him shall appear best calculated to promote as the court shall direct.
the ends of justice, any rule or practice
of s u c h c o u r t t o t h e c o n t r a r y 713. (1) There shall be annexed to, or Order to
notwithstanding: endorsed on, the citation an order signed by accompany
citation.
the Judge, requiring the person cited to
Provided that the parties to such case attend personally at the time and place
shall have received reasonable notice of the therein specified.
day of hearing.
(2) The citation and order must be Service of
PART VII personally served, and the service shall be citation-
ineffectual unless it is accompanied with
OF THE AIDING AND CONTROLLING payment or tender of the sum required by
OF EXECUTORS AND law to be paid or tendered to a witness
ADMINISTRATORS, AND THE subpoenaed to attend a trial in a civil court.
JUDICIAL SETTLEMENT OF THEIR
(3) Failure to attend as required by the Failure to obey
ACCOUNTS
citation and order may be punished as a citation.
contempt of court.
CHAPTER LIV
714. (1) Upon the attendance of a Examination
OF AIDING, SUPERVISING, AND person in obedience to such citation and of person cited.
CONTROLLING EXECUTORS AND order, he shall be examined fully and at
ADMINISTRATORS large, on oath or affirmation, respecting any
money or other property of the testator or
Proceedings to 712. (1) An executor or administrator intestate, or of which the testator or
discover may present to the court from which grant
property intestate was in possession at the time of or
withheld, &c. of probate or administration issued to him a within two years preceding his death.
petition entitled as of the action in which
such grant issued, setting forth upon (2) A refusal to be sworn or to answer Refusal to
knowledge, or information and belief, any any question allowed by the court is answer.
facts tending to show that money or other punishable in the same manner as a like
movable property which ought to be refusal by a witness in a civil case.
delivered to the petitioner, or which ought
to be included in his inventory and (3) In case the person cited puts in an
valuation, is in the possession, under the affidavit that he is the owner of any of the
control, or within the knowledge or said property, or is entitled to the possession
information of a person who withholds the thereof by virtue of any lien thereon or

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special property therein, the proceedings as 718. (1) A creditor, or any person Executor, &c.,
to such property so claimed shall be interested in the estate, may present to the how compelled
to return
dismissed. court in the action in which grant of probate inventory and
or administration issued, proof by affidavit accounts.
Further 715. In the absence of the affidavit last that an executor or administrator has failed
evidence, mentioned, either party may on any such to file in court the inventory and valuation,
inquiry produce further evidence in like and account (or a sufficient inventory and
manner and with like effect as upon a trial. valuation, or sufficient accounts) required
by law within the time prescribed therefor.
Unless the 716. Where it appears to the court, from
person cited the examination and other testimony, if any,
gives security, (2) Thereupon, or of its own motion, if
decree that tnere is reason to suspect that money or the court is satisfied that the executor or
awarding to
possession to other property of the testator or intestate is administrator is in default, it shall make an
the petitioner. withheld or concealed by the person cited, order requiring the delinquent to file the
the court shall, unless the person cited gives inventory and valuation or accounts, or a
security by a bond entered into with the further inventory and valuation or further
petitioner as obligee, with such sureties and accounts, as the case may be ; or in default
in such penalty as the court approves, for the thereof to show cause at a time and place
payment of the money or delivery of the therein specified why he should not be
property, or in default of such delivery for attached.
the payment to the obligee of the full value
(3) Upon the return of the order, if the
thereof, and in either case of all damages delinquent has not filed a sufficient
which may be awarded against the obligor inventory and valuation or sufficient
for withholding the same whenever it shall accounts, the court shall issue a warrant of
be determined in an action brought by the attachment against him, and shall deal with
obligee that it belongs to the estate of the him as for a contempt of court.
testator or intestate, make a decree reciting
the grounds thereof, and requiring the 719. A person committed to jail under How executor
person cited to deliver possession of the the provisions of the last preceding section or adminis-
trator may be
money or other property, specifying the sum may be discharged by the court upon his discharged
or describing the property, to the petitioner. paying and delivering under oath all the from
But in the event of such security being money and other property of the testator or commitment.
given, and after payment within a time to be intestate, and all papers relating to the
fixed therefor of any costs which the estate under his control, to the Judge, or
court may award to the petitioner, the person authorized by the Judge to receive
proceedings shall be dismissed. the same.

Disobedience 717. (1) Where the decree requires the 720. In either of the following cases a Petition by
to decree, person cited to deliver money, disobedience petition, entitled as of the action in which creditor or
contempt. legatee to
thereto may be punished as contempt of grant of probate or administration issued, compel
court. may be presented to the court which issued payment.
the same, praying for a decree directing an
Warrant to (2) Where it requires him to deliver executor or administrator to pay the
seize property. possession of other property, a warrant shall petitioner's claim, and that he be cited to
issue on the application of the petitioner show cause why such decree should not be
directed to the Fiscal, and commanding him made
to search for and seize the property, if it is
found in the possession of the person cited, (a) by a creditor, for the payment of a
or his agent, or any person deriving title debt, or of its just proportional
from him since the presentation of the part, at any time after twelve
petition to deliver the same to the petitioner, months have expired since grant of
and to return the warrant within sixty days. probate or administration;

(3) The issue of such a warrant does not (b) by a person entitled to a legacy, or
affect the power of the court to enforce the any other pecuniary provision
decree, or any part thereof, by punishing a under a will, or a distributive share,
disobedience thereto. for the payment or satisfaction

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CIVIL PROCEDURE CODE [Cap. 105
thereof, or of its just proportional (2) The court shall thereupon, or of its
part, at any time after twelve own motion, if satisfied that the executor or
months have expired since such administrator is in default, make order
grant. which shall be served on the delinquent,
requiring him to file such final account on a
Citation to 721. On the presentation of such date to be specified therein; and in default
issue. petition the court shall issue a citation thereof to show cause why he should not be
accordingly, and upon the return thereof attached.
Hearing and shall make such decree in the premises as
decree. justice requires. But in any case where the (3) Upon the day fixed in such order, if
executor or administrator files an affidavit the delinquent has not filed a sufficient final
setting forth facts which show that it is account, the court may issue a warrant of
doubtful whether the petitioner's claim is attachment against him and deal with him
valid and legal, and denying its validity or as for contempt of court.
legality absolutely, or upon information and
belief, or where the court is not satisfied (4) A delinquent committed to jail under
that there is money or other movable subsection (3) shall be discharged by the
property of the estate applicable to the court upon his filing a sufficient final
payment or satisfaction of the petitioner's account.
claim, and which may be so applied without
injuriously affecting the rights of others (5) Every account so filed by the
entitled to priority or equality of payment accounting party shall be in accordance with
or satisfaction, the decree shall dismiss the the specimen form No. I ISA in the First
petition, but such dismissal shall not Schedule with such variations as
prejudice the right of the petitioner to an circumstances may require and shall set out
action or accounting. distinctly

Appeal. 722. Every order or decree made under and liabilities of the
the provisions of this Chapter shall be deceased valued as in the
subject to an appeal to the Court of Appeal, inventory ;

CHAPTER LV (b) receipts and disbursements and


transactions of property made by
OF THE ACCOUNTING A N D SETTLEMENT OF the accounting party up to the date
THE ESTATE to which his account is made up ;

Executor may 723. An executor or administrator may (c) the assets and liabilities as at the date
file inter- at any time voluntarily file in the court from to which the account is made up,
mediate
account at any which grant of probate or administration
time. issued to him an intermediate account, and and all schedules thereto which would
the vouchers in support of the same. facilitate the taking of accounts.

Court may 724. The court may in any case at any (6) To each account filed shall be
compel time, and either upon the application of a
executor to file appended an affidavit of the accounting
intermediate creditor or party interested or of its own party to the effect that the account contains,
account at any motion, make an order requiring an according to the best of his knowledge and
time. executor or administrator to render an belief, a full and true statement of all assets
intermediate account. and liabilities and of all his receipts and
disbursements on account of the estate of
Procedure 724A. (1) Any person interested in the the deceased and of all money and other
where executor estate may present to the court proof by property belonging to the estate which have
or administrator
has failed to affidavit that an executor or administrator come to his hands, or have been received by
file an account has failed to file in court such account as is any other person by his order or authority
under section prescribed by section 553. for his use; and that he does not know of
553.
[108, Law 20
of 1977.] V/183
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any error or omission in the account to the contestant and the executor or
prejudice of any creditor of, or person administrator shall, either on the date so
interested in, the estate. fixed or prior thereto, file in court all
receipts and vouchers in support and
(7) The court may reject an account verification of the final account.
which does not comply with the provisions
of this section and require the executor or (6) The court shall inquire into such
administrator to file a sufficient account objections and shall make such order as the
within a specified period. justice of the case may require and on the
executor or administrator complying with
Court to grant 724B. (1) Where an executor or such order discharge the executor or
a discharge to administrator files with his final account a administrator and enter order declaring that
the executor or
administrator receipt and discharge in the form No. 119A the estate has been fully administered.
where estate in the First Schedule (subject to such
has been duly variations as circumstances may require) (7) Where, however, the objections are
administered
and signed by the devisees, legatees, trustees, of such a nature that, in the opinion of the
distributed. heirs, creditors or other persons entitled to court, for the adjudication of the disputes
(108, Law 20 or having an interest in the estate of the raised therein all other parties interested in
of 1977.]
deceased, establishing that the entire estate the estate shall have notice thereof, the
has been duly administered and distributed, court shall direct judicial settlement of the
the court may grant him a discharge and account in the manner provided in the
enter an order that the estate has been fully succeeding sections.
administered..
725. In any of the following cases, and Judicial
(2) In any case where a receipt and settlement of
either upon the application of a party account.
discharge, or a sufficient receipt and mentioned in the next section or of its own
discharge, is not filed with the final account motion, the court may from time to time
the court may, on sufficient cause shown, compel a judicial settlement of the account
grant further time to the executor or of an executor or administrator:
administrator to enable such a sufficient
receipt and discharge to be filed. (a) where one year has expired since
grant to him of probate or
(3) Where any such receipt and administration;
discharge has not been filed within the time
allowed, or where any receipt and discharge (b) where such grant has been revoked,
has been refused, the court may direct that a or for any other reason his powers
copy of the final account be served upon the have ceased;
party failing or refusing to grant such
receipt and discharge and requiring such (c) where he has sold or otherwise
person to appear in court on a day to be disposed of any immovable
specified therein, to show cause, if any, why property of the testator, or
the final account should not be accepted as devisable interest therein, or the
correct. rents, profits, or proceeds thereof,
pursuant to a power in the will,
(4) Where such a person does not where one year has elapsed since
appear or upon appearance on the day so the grant of probate to him.
fixed he shows no cause against the
acceptance of the final account the court 726. (1) The application for a judicial Who may
shall grant a discharge to the executor or settlement in the last section mentioned apply for
accounting.
administrator and enter an order that the shall be by petition, entitled as of the action
estate has been fully administered. in which grant of probate or administration
issued, and may be presented by a creditor,
(5) Where such person contests the or by any person interested in the estate or
correctness or sufficiency of the account fund, including a child born after the
filed the court shall fix a date for a making of a will; or by any person in behalf
statement of objections to be filed by such of an infant so interested ; or by a surety in

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the official bond of the person required to consolidation shall not affect any power of
account, or the legal representative of such the court which might be exercised in either
surety. special proceeding.

Citation. (2) Upon the presentation thereof, 729. At any time after the expiration of Executor, &c.,
citation shall issue accordingly; but in a one year since grant of probate or may petition
case specified in paragraph (a) of the last for judicial
administration to an executor or settlement of
preceding section the court may, if the administrator, he may present to the court his account.
petition is presented within less than which issued the same a petition, entitled as
eigthteen months after the issue of probate of the action in which such grant issued to
or administration, entertain or refuse to him, praying that his account may be
entertain it in its discretion. judicially settled, and that the creditors or
persons claiming to be creditors, husband or
Order to 727. (1) Upon the return of such wife, heirs, next of kin, and legatees (if any)
account. citation, if the executor or administrator of the testator or intestate, or, if any of
fails either to appear, or to show good cause those persons has died, his executor or
to the contrary, or to present, in a proper administrator (if any), may be cited to
case, a petition as prescribed in section 729, attend the settlement. If one or more co-
an order shall be made directing him to executors or co-administrators presents such
account within such a time and in such a a petition for a settlement of his separate
manner as the court prescribes, and to account, it must pray that his co-executors
attend before the court from time to time or co-administrators be also cited. And Citation.
for that purpose. And the executor or upon the presentation of any such petition a
administrator shall be bound by such order citation shall issue accordingly.
without service thereof, and if he disobeys it
the court may issue a warrant of attachment 730. (1) Upon the return of such Hearing.
against him, and the grant of probate or citation the court must take the account and
administration issued to him may be hear the allegations and proofs of the
revoked. panics respecting the same.

Supplemental (2) If it appears that there is a surplus,


citation. (2) Any party may contest the account
distributable to creditors or persons
interested, the court may at any time issue a with respect to a matter affecting his interest
in the settlement and distribution of the
supplemental citation, directed to such
estate; and any party may contest an
persons as must be cited upon the petition
intermediate account rendered under section
of an executor or administrator for a
judicial settlement of his account, requiring 724 in case the same has not been
consolidated under section 728.
them to attend the accounting.

Person cited 728. (1) Upon the return of any 731. Any creditor or person interested in Creditor not
may bring in citation issued under any of the foregoing the estate, although not cited, is entitled to cited may
other parlies. appear.
sections of this Chapter, the executor or appear upon the hearing, and thus make
administrator may, if one year has expired himself a party to the special proceeding.
since grant of probate or administration
issued to him, present a petition as in the 732. Any executor or administrator Executor, &c.
next section prescribed. whose grant has been revoked or who is whose grant
has been
desirous of resigning his office may, in the revoked may
Proceedings. (2) A citation issued upon such a same action, present to the court a petition petition.
petition need not be directed to the praying that his account may be Judicially
petitioner in the special proceeding pending settled, and that his successor (if any) and
against the executor or administrator; but the other persons specified in section 729
the hearing of the special proceeding shall may be cited to attend the settlement. The
be adjourned until the return of the citation proceedings thereon shall be regulated
so issued, whereupon the two special according to the provisions of the last three
proceedings shall be consolidated. Such sections.

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Affidavit to be 733. To each account filed under this 735. The court may at any time make an Accounting
annexed to Chapter shall be appended an affidavit of order requiring the accounting party to party to be
accounts. examined.
the accounting party, to the effect that the make and file his account, or to attend and
account contains, according to the best of be examined on oath or affirmation
his knowledge and belief, a full and true touching his receipts and disbursements, or
statement of all his receipts and touching any other matter relating to his
disbursements on account of the estate of administration, or any act done by him
the testator or intestate, and of all money under colour of his grant or after the death
and other property belonging to the estate of the testator or intestate, and before the
which has come to his hands, or which has issue of such grant or touching any movable
been received by any other person by his property of the testator or intestate owned
order or authority for his use; and that he or held by him at the time of his death.
does not know of any error or omission in
the acount to the prejudice of any creditor 736. (1) Upon a judicial settlement of Court to
the account of an executor or administrator, determine
of, or person interested in, the estate. claims.
he may prove any debt owing to him by his
testator or intestate:
Vouchers to be 734. Upon every accounting by an
produced, executor or administrator, the accounting Provided that a concise statement of such
party must produce and file a voucher for debt with an intimation of the petitioner's
every payment, except in one of the intention so to prove the same has been
following cases: inserted in the petition.
(2) Where a contest arises between the
(1) He may be allowed, without a accounting party and any of the other
voucher, any proper item of parties respecting any property alleged to
expenditure, not exceeding twenty belong to the estate, but to which the
rupees, if it is supported by his own accounting party lays claim, or respecting a
uncontradicted oath or affirmation, debt alleged to be due by the accounting
stating positively the fact of party to the testator or intestate, or by the
payment and specifying where and testator or intestate to the accounting party,
to whom the payment was made : the contest must be tried and determined in
the same special proceeding and in the same
manner as any issue arising on a civil trial.
Provided that all the items so
allowed against an estate, upon all 737. From the death of the testator or Prescription.
the accountings of all the executors intestate until the first judicial settlement
or administrators, shall not exceed of an account by the executor or
two hundred rupees. administrator, the running of the Ordinance
relating to the prescription of actions
against a debt due from the deceased to the
(2) If he proves, by his own or another's accounting party, or any other cause of
sworn testimony, that he did not action in favour of the latter against the
take a voucher when he made the deceased, is suspended, unless the
payment, or that the voucher then accounting party was appointed upon the
taken by him has been lost or revocation of a former grant to another
destroyed, he may be allowed any person; in which case the running of the
item of which he satisfactorily Ordinance is so suspended from the grant to
proves the payment by the him until the first judicial settlement of his
testimony of the person to whom he account. After the first judicial settlement of
made it, or, if that person is dead or the account of an executor or administrator,
cannot be found, by any competent the Ordinance begins again to run against a
evidence other than his own or his debt due to him from the deceased, or any
wife's oath or affirmation. other cause of action in his favour against
the deceased.
But no such item shall be allowed unless 738. Upon a judicial settlement of the Court may
the court is satisfied that the charge is account of an executor or administrator, the allow for
property lost,
correct and just. court may allow the accounting party for &c.

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CIVIL PROCEDURE CODE [Cap.105
property of the testator or intestate perished And such decree shall be conclusive with
or lost without the fault of the accounting respect to the matters enumerated in this
party. section upon each party to the special
proceedings who was duly cited or
Effect of 739. A judicial settlement under this appeared, and upon every person deriving
judicial Chapter, either by the decree of the District title from such party.
settlement.
Court or upon an appeal therefrom, is
conclusive evidence against all parties who 741. (1) In either of the following cases When specific
were duly cited or appeared, and all persons the decree may direct the delivery of unsold property may
be delivered.
deriving title from any of them at any time, property, movable or immovable, or the
of the following facts, and no others; assignment of an uncollected demand, or
any other movable property, to a party or
(a) that the items allowed to the parties entitled to payment or distribution in
accounting party for money paid to lieu of the money value of the property ;
creditors, legatees, heirs, and next
of kin, for necessary expenses, and (a) where all the parties interested, who
for his services are correct; have appeared, manifest their
consent thereto by a writing filed in
(b) that the accounting party has been court;
charged with all the interest for
money received by him and (b) where it appears that a sale thereof,
embraced in the account, for which for the purpose of payment of
he was legally accountable ; distribution would cause a loss to
the parties entitled thereto-
(c) that the money charged to the
accounting party, as collected, is all (2) The value must be ascertained, if the
that was collectible at the time of consent does not fix it, by an appraisement
the settlement on the debts stated in under oath made by one or more persons
the account; appointed by the court for the purpose.

(d) that the allowances made to the 742. Where an admitted debt of the When money
accounting party for the decrease, testator or intestate is not yet due, and the may be
retained.
and the charges against him for the creditor will not accept present payment
increase, in the value of property with a rebate of interest, or where an action
were correctly made. is pending between the executor or
administrator and a person claiming to be a
Decree for 740. (1) When an account is judicially creditor of the deceased, the decree must
payment and settled under the provisions of this Chapter, direct that a sum sufficient to satisfy the
distribution. , . ,. . . , . , .
and any part of the estate remains and is claim, or the proportion to which it is
ready to be distributed to the creditors, entitled, together with the probable amount
legatees, heirs, next of kin, husband, or wife of the interest and costs, be retained in the
of the testator or intestate, or their assigns, hands of the accounting party, or paid into
the decree must direct the payment and court for the purpose of being applied to the
distribution thereof to the persons so payment of the claim when it is due,
entitled, according to their respective rights. recovered, or settled; and that so much
thereof as is not needed for that purpose be
(2) If any person who is a necessary afterwards distributed according to law.
party for that purpose has not been cited, or
has not appeared, a supplemental citation 743. Where a legacy or distributive Share of
must be issued as prescribed in section 727. share is payable to a person of unsound person of
unsound mind
mind or a minor, the decree may, in the or minor.
(3) Where the validity of a debt, claim, discretion of the court, direct it to be paid to
or distributive share is not disputed, or has the manager or curator, as the case may be,
been established, the decree must determine of the estate of such person of unsound
to whom it is payable, the sum to be paid, mind or minor, and where a sum of less
and all other questions concerning the same than one hundred rupees is so payable to a

V/187
Cap.105] CIVIL PROCEDURE CODE
minor, the decree may direct that the same deceased person of unsound mind or
be applied to the maintenance or education mentally deficient person, or under
of the minor. And such manager or curator paragraph (a) by the guardian of the person,
shall apply and account for any sum and under paragraph (b) by the manager of
received by him under this Chapter in the estate, of a person of unsound mind and
manner in Chapters XXXIX and XL mentally deficient person or by any public
respectively provided with regard to sums officer mentioned in section 556 ;
coming to his hands as such manager or
curator. In cases falling under paragraphs (c), (d),
(e), and (f)
Appeal. 744. Every order or decree made under by the minor after he has attained majority,
the provisions of this Chapter shall be subject or by the executor or administrator of a
to an appeal to the Court of Appeal. deceased minor, or under paragraph (c) by
the guardian of the person, and under
CHAPTER LVI paragraph (d) by the curator of the estate of
a minor;
OF ACCOUNTING IN CASES OF PERSONS OF
UNSOUND MIND AND OF MINORS And in any case by the successor of any
such manager, curator, guardian, next
Compulsory 745. A petition praying for the judicial friend, or guardian for the action. But in
judicial settlement of the account of cases falling under paragraphs (b), (d), (e),
settlement of
accounts in and (f) proof must be adduced to the
cases of (a) the manager of the estate of a person statisfaction of the court that the person so
persons of of unsound mind or mentally
unsound mind,
required to account has received money or
mentally deficient person; property of the minor for which he is liable
deficient to account and has not accounted.
persons and (b) the guardian of the person of a
minors.
[ 16, 53 of person of unsound mind or 746. A petition praying for the judicial Voluntary
settlement of his account and a discharge judicial
1980.] mentally deficient person; settlement of
from his duties and liabilities may be accounts in
(c) the curator of the estate of a minor; presented in like manner by any of the case of persons
persons described under paragraphs (a), (b), of unsound
mind and
(d) the guardian of the person of a (c), (d), (e), and (f) of the last preceding minors.
minor; section, in any case where a petition for a
judicial settlement of his account may be
(e) the next friend of a minor plaintiff; presented by any other person as prescribed
in the last section. The petition must pray
(f) the guardian for the action of a that every person who might have so
minor defendant;. presented, a petition may be cited to attend
the settlement.
and that such persons may be cited to
747. (1) Upon the presentation of any Procedure.
attend the settlement thereof, may in every
petition as mentioned in the last two
case where such person is required by law to
sections, the court shall issue a citation
file accounts, be presented to the court
accordingly.
having jurisdiction, in the manner in the last
preceding Chapter provided, by any of the (2) Sections 724 to 740 both inclusive
following persons respectively, namely : shall be taken to apply as far as practicable,
mutatis mutandis, to all proceedings under
In cases falling under paragraphs (a) and this Chapter. And the accounting party
(b) by the person of unsound mind or must annex to every account produced and
mentally deficient person, after he has been filed by him an affidavit verifying the
found by adjudication to have ceased to be account.
of unsound mind or mentally deficient, or
by any relative or friend of the person of 748. Every order or decree made under Appeal,
unsound mind or mentally deficient person, the provisions of this Chapter shall be
or by the executor or administrator of a subject to an appeal to the Court of Appeal.

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CHAPTER LVII PART VIII

OF APPEALS
GENERAL CLAUSES
CHAPTER LVIII

Requisites of 749. Every petition by which an OF APPEALS AND REVISIONS


petitions application is made to a District Court for
relating to
persons of the exercise of its powers over or in respect 753. The Court of Appeal may call for Powers of
unsound mind, of persons of unsound mind, mentally and examine the record of any case, whether revision by
mentally Court of
deficient deficient persons, minors or trustees, as the already tried or pending trial, in any court, Appeal.
persons, case may be, shall state expressly that the for the purpose of satisfying itself as to the
minors, or petitioner does not know of any person legality or propriety of any judgment or
trustees. order passed therein, or as to the regularity
[17,53 of interested in the subject of the petition or in
1980.] the person sought to be affected by the of the proceedings of such court, and may
order prayed for in the petition, who is upon revision of the case so brought before
likely to entertain any objection thereto, it pass any judgment or make any order
other than those who are named as which it might have made had the case
been brought before it in due course of
respondents in the petition.
appeal instead of by way of revision.

Citations. 750. But the court shall have power 754. (1) Any person who shall be Mode of
dissatisfied with any judgment pronounced preferring
nevertheless to direct that the order nisi be appeal.
served on any person or persons other than by any original court in any civil action, [109, Law 20
a respondent, whom it may consider entitled proceeding or matter to which he is a party of 1977.]
to have notice of the application. may prefer an appeal to the Court of
Appeal against such judgment for any error
in fact or in law.
Security bonds. 751. All security bonds made under or
in pursuance of the provisions of Chapters (2) Any person who shall be dissatisfied
XXXIX, and XL, XLI shall, unless with any order made by any original court
otherwise expressly or by implication in the course of any civil action, proceeding,
directed, be expressed to be made with the or matter to which he is or seeks to be a
Registrar of the court for the time being, party, may prefer an appeal to the Court of
Appeal against such order for the correction
and in the case of bonds so made, upon
of any error in fact or in law, with the leave
each occurrence of a change of Registrar the
of the Court of Appeal first had and
new Registrar shall be deemed to take the
obtained.
place of, and to be substituted for, the
Registrar whom he succeeds, as party obligee (3) Every appeal to the Court of Appeal
to the contract on the bond, and shall from any judgment or decree of any original
become such party as fully and completely court, shall be lodged by giving notice of
in all respects as if he were originally made appeal to the original court within such time
such party on the occasion of the making of and in the form and manner hereinafter
the bond. provided.

(4) The notice of appeal shall be


Security From 752. The District Court shall have the presented to the court of first instance for
managers and like power to make the person appointed this purpose, by the party appellant or his
curators.
[18,53 of manager of the estate of a person of registered attorney within a period of
1980.] unsound mind, or mentally deficient person, fourteen days from the date when the decree
or the person appointed curator of a minor's or order appealed against was pronounced,
estate, give security for the due exclusive of the day of that date itself and of
administration of the estate as it has in the the day when the petition is presented and
case of administrators of deceased persons' of public holidays, and the court to which
estates. the notice is so presented shall receive it and

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deal with it as hereinafter provided. If such copy of the notice of appeal, in the
conditions are not fulfilled, the court shall form of a written acknowledgment
refuse to receive it. of the receipt of such notice or the
registered postal receipt in proof of
(5) Notwithstanding anything to the such service.
contrary in this Ordinance, for the purposes
of this Chapter
(3) Every appellant shall within sixty
days from the date of the judgment or
"judgment" means any judgment or
decree appealed against present to the
order having the effect of a final
original court a petition of appeal setting
judgment made by any civil court;
out the circumstances out of which the
and
appeal arises and the grounds of objection
to the judgment or decree appealed against,
" order" means the final expression of
and containing the particulars required by
any decision in any civil action,
section 758, which shall be signed by the
proceeding or matter which is not a
appellant or his registered attorney. Such
judgment.
petition of appeal shall be exempt from
stamp duty.
Notice of 755. (1) Every notice of appeal shall be
appeal. distinctly written on good and suitable
[109, Law 20
of 1977.] paper and shall be signed by the appellant (4) Upon the petition of appeal being
or his registered attorney and shall be duly filed, the court shall forward the petition of
stamped. Such notice shall also contain the appeal together with all the papers and
following particulars: proceedings in the case relevant to the
judgment or decree appealed against as
(a) the name of the court from which speedily as possible, to the Court of Appeal,
the appeal is preferred; retaining however an office copy of the
judgment or decree appealed against for the
(b) the number of the action; purposes of execution, if necessary. Such
proceedings shall be accompanied by a
(c) the names and addresses of the certificate from the Registrar of the court
parties to the action ; stating the dates of the institution and
decision of the case, in whose favour it was
(d) the names of the appellant and decided and the dates on which the notice
respondent; and the petition of appeal were filed.

(e) the nature of the relief claimed :


756. (I) On receipt of the petition of Procedure in
appeal, the Registrar of the Court of Appeal respect of
Provided that where the appeal is lodged and
shall forthwith number the petition and application for
by the Attorney-General, no such stamps leave to appeal.
shall enter such number in the Register of [109, Law 20
shall be necessary.
Appeals and notify the parties concerned by of 1977.]
registered post.
(2) The notice of appeal shall be
accompanied by
(2) Every application for leave to appeal
(a) except as provided herein, security against an order of court made in the course
for the respondent's costs of appeal of any civil action, proceeding or matter,
in such amount and nature as is shall be made by petition duly stamped,
prescribed in the r u l e s made addressed to the Court of Appeal and
by the Supreme Court, or signed by the party aggrieved or his
acknowledgment or waiver of registered attorney and shall be supported
security signed by the respondent or by affidavit and shall contain the particulars
his registered attorney ; and required by section 758. The appellant shall
with such petition tender as many copies as
(b) proof of service, on the respondent may be required for service on the
or on his registered attorney, of a respondents.

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CIVIL PROCEDURE CODE [Cap.105
(3) Upon an application for leave to (7) Upon leave to appeal being granted,
appeal being filed, the Registrar of the the Registrar of the Court of Appeal shall
Court of Appeal shall number such immediately inform the original court, and,
application and shall, as speedily as unless the Court of Appeal has otherwise
possible, submit such application to a Judge directed, all proceedings in the original
in Chambers. court shall be stayed and the said court shall
as speedily as possible forward to the Court
(4) The application for leave to appeal of Appeal all the papers and proceedings in
shall be presented to the Court of Appeal the case relevant to the matter in issue.
for this purpose by the party appellant or
his registered attorney within a period of 757. (1) The security to be required Security to be
fourteen days from the date when the order from a party appellant shall be by bond by bond and
with surety
appealed against was pronounced exclusive (form No. 129, First Schedule) with one or
of the day of that date itself and of the day more good and sufficient surety or sureties,
when the application is presented and of or shall be by way of mortgage of
public holidays and the Court of Appeal immovable property or deposit and
shall receive it and deal with it as hereinafter hypothecation by bond of a sum of money
provided and if such conditions are not sufficient to cover the cost of the appeal and
fulfilled, the Court of Appeal shall reject it. to no greater amount.

(5) A Judge to whom an application for (2) Security shall be dispensed with [110. Law 20
leave to appeal has been submitted may where the appellant is of 1977]

(a) forthwith fix a date for the hearing (a) the Attorney-General;
of the application and order notice
thereof to be issued on the (b) the spouse in a matrimonial action
respondent or respondents, or in whose favour an order for
alimony pendente lite has been
(b) require the application to be made;
supported in open court by the
petitioner or attorney-at-law on his (c) an insolvent in respect of insolvency
behalf on a day to be fixed by such proceedings;
Judge; and the court having heard
the petitioner or his attorney-at-law (d) exempted from depositing security
may reject such application or fix a by any other written law.
day for the hearing of the
application and order notice thereof
758. (1) The petition of appeal shall be Form of
to be issued on the respondent or appeal.
distinctly written upon good and suitable
respondents: [111, Law 20
paper, and shall contain the following of 1977.]
particulars:
Provided that when an application is
rejected under this subsection, the court (a) the name of the court in which the
shall record the reasons for such rejection. case is pending;

(6) Where notice is ordered to issue, the (b) the names of the parties to the
Registrar of the Court of Appeal shall action;
accordingly issue notice on each respondent
or his registered attorney by registered post (c) the names of the appellant and of the
and shall also annex to it a copy of the respondent;
petition of appeal furnished by the
appellant. On the date specified in the (d) the address to the Court of Appeal;
notice, or on such other date as the court
shall then fix, the court shall hear the (e) a plain and concise statement of the
application for leave to appeal and grant or grounds of objection to the
refuse leave to appeal. judgment, decree, or order appealed

V/191
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againstsuch statement to be set of Appeal may in the manner provided in
forth in duly numbered the rules made by the Supreme Court for that
paragraphs; purpose, determine who, in the opinion of
the court, is the proper person to be
(f) a demand of the form of relief substituted or entered on the record in place
claimed. of, or in addition to, the party who has died
or undergone a change of status, and the
In deciding (2) The court in deciding any appeal name of such person shall thereupon be
appeal, court shall not be confined to the grounds set deemed to be substituted or entered of
not confined to
grounds set forth by the appellant, but it shall not rest record as aforesaid.
forth by its decision on any ground not set forth by
appellant. the appellant, unless the respondent has had CHAPTER LIX
sufficient opportunity of being heard on
that ground. OF THE EXECUTION OF DECREES UNDER
APPEAL
Where petition 759. (1) If the petition of appeal is not
to be rejected. drawn up in the manner in the last 761. No application for execution of an Application for
preceding section prescribed, it may be appealable decree shall be instituted or execution of
rejected, or be returned to the appellant for entertained until after the expiry of the time
decree not to
the purpose of being amended, within a time be entertained
allowed for appealing therefrom: till expiry of
to be fixed by the court; or be amended appealable
then and there. When the court rejects Provided, however, that where an appeal
time.
under this section any petition of appeal, it [114, Law 20
is preferred against such a decree, the of 1977.]
shall record the reasons of such rejection. judgment-creditor may forthwith apply for
And when any petition of appeal is execution of such decree under the
amended under this section, the -Judge, or provisions of section 763.
such officer as he shall appoint in that
behalf, shall attest the amendment by his 763*. (1) In the case of an application Application for
signature. being made by the judgment-creditor for execution of
decree pending
[112. Law 20 (2) In the case of any mistake, omission execution of a decree which is appealed appeal must be
of 1977.] or defect on the part of any appellant in against, the judgment-debtor shall be made on notice to
respondent. debtor; and
complying with the provisions of the execution will
foregoing sections, the Court of Appeal only be granted
may, if it should be of opinion that the If, on any such application, an order is on security.
respondent has not been materially made for the execution of a decree against
prejudiced, grant relief on such terms as it which an appeal is pending, the court which
may deem just. passed the decree shall, on sufficient cause
being shown by the appellant, require
When one of 760. Where there are more plaintiffs or security to be given for the restitution of any
several more defendants than one in an action, and property which may be taken in execution
plaintiffs or of the decree, or for the payment of the
defendants the decree appealed against proceeds on any
may appeal ground common to all the plaintiffs or to all value of such property, and for the due
against whole the defendants, any one of the plaintiffs or performance of the decree or order of the
decree. Court of Appeal.
of the defendants may appeal against the
whole decree, and thereupon the Court of
Appeal may reverse or modify the decree in And when an order has been passed for
favour of all the plaintiffs or defendants, as the sale of immovable property in execution
the case may be. of a decree for money, and an appeal is
pending against such decree, the sale shall,
Death or 760A. Where at any time after the on the application of the judgment-debtor,
change of lodging of an appeal in any civil action, be stayed until the appeal is disposed of, on
status of party
to appeal. proceeding or matter, the record becomes such terms as to giving security or otherwise
[113, Law 20 defective by reason of the death or change as the court which passed the decree thinks
of 1977.] of status of a party to the appeal, the Court fit.

* Section 762 is repealed by Law No. 20 of 1977.


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CIVIL PROCEDURE CODE [Cap.105
[19,53 of (2) The Court may order execution to the conditions precedent to the petition of
1980.] be stayed upon such terms and conditions as appeal being entertained, which are
it may deem fit, where prescribed in the last section, are fulfilled.
Also, every such petition shall be presented to be presented
(a) the judgment-debtor satisfies the immediately to the Court of Appeal in its "imediately to
the Court of
court that substantial loss may appellate jurisdiction, and in addition to the Appeal.
result to the judgment-debtor unless prayer for relief in respect to the subject of
an order for stay of execution is appeal it shall contain a prayer that the
made, and appeal may be admitted notwithstanding the
lapse of time.
(b) security is given by the judgment-
debtor for the due performance of 767. On any such petition being Order of Court
such decree or order as may forwarded to the Court of Appeal the of Appeal
thereon.
ultimately be binding upon him. question whether or not it ought to be
admitted shall be a preliminary question to
Exception in 764. No such security in appeal shall be be determined forthwith on summary
favour of the required from the State or (when procedure, according to the provisions of
State.
Government has undertaken the defence of alternative (b), section 377. If upon the
the action) from any public officer sued in hearing of this question the Court of Appeal
respect of an act alleged to be done by him is satisfied that the conditions prescribed in
in his official capacity. section 765 are fulfilled, it may order the
petition of appeal to be admitted upon such'
CHAPTER LX conditions as to costs, security, or otherwise
as to the court may seem just, and in the
OF APPEAL NOTWITHSTANDING LAPSE OF event of its doing so the Registrar shall,
TIME where the court of first instance is the Court
of Appeal, proceed as in section 768
Appeal 765. It shall be competent to the Court provided ; but where such court is a District
notwith- of Appeal to admit and entertain a petition Court, Family Court or Primary Court, the
standing lapse
of time. of appeal from a decree of any original Court of Appeal shall issue a mandate to
court, although the provisions of sections such court, directing it to forward to the
754 and 756 have not been observed: Court of Appeal the record of the
proceedings of the action in which the
Provided that the Court of Appeal is decree or order appealed from was passed;
satisfied that the petitioner was prevented if, however, on the contrary, the court is not
by causes not within his control from satisfied that the said conditions are
complying with those provisions ; and fulfilled, it shall dismiss the petition and
make such order as to costs as may seem to
Provided also that it appears to the Court the court just;
of Appeal that the petitioner has a good
ground of appeal, and that nothing has CHAPTER LXI
occurred since the date when the decree or
order which is appealed from was passed to HEARING OF THE APPEAL
render it inequitable to the judgment-
creditor that the decree or order appealed 768. When the petition of appeal has Hearing of
from should be disturbed. been preferred to the Court of Appeal in the appeal
[116, Law 20
manner in section 755 prescribed or in the of 1977]
Petition 766. In every such petition of appeal event of the petition of appeal being
therefor, as is the subject of the last section presented immediately to the Court of
the judgment-creditor shall be named Appeal, and when the order for the
respondent, and the petition shall be admission has been made, the Registrar of
accompanied by a certified copy of the the Court of Appeal shall enter it in the roll
decree or order appealed from, and of the of pending appeals, and the matter of the
judgment on which it is based, as well as by appeal shall come up for hearing before the
such affidavits of facts and other materials court without further notice to the parties
as may constitute prima facie evidence that concerned, in accordance with the direction

V/193
Cap.105] CIVIL PROCEDURE CODE
given to such Registrar by the President of appeal was duly served upon him or
the Court or any other Judge of the Court his registered attorney as hereinbefore
of Appeal authorized by him in that behalf; provided, or if it appears to the court at
such hearing that any person who was a
Provided however that the preceding party to the action in the court against
provisions of this section shall not in any whose decree the appeal is made, but who
event derogate from the right, power or has not been made a party to the appeal, is
authority of any division of the Court of interested in the result of the appeal, the
Appeal or any Judge thereof to make any court may issue the requisite notice of
order in regard to any case or matter listed appeal for service.
for hearing, order or disposal before such
court or Judge; 771. When an appeal is heard ex parte Rights of
in the absence of the respondent, and respondent to
Provided further that a list of the appeals object to
Judgment is given against him, he may apply decree.
pending before the court in their order on to the Court of Appeal to rehear the
the roll, or of a sufficient number of them, appeal; and if he satisfies the court that the
be daily kept suspended upon the notice- notice of appeal was not duly served, or that
board of the court, and that no appeal shall he was prevented by sufficient cause from
come on for hearing until it has been in that attending when the appeal was called on for
list in the case of appeals from District hearing, the court may rehear the appeal on
Courts or Family Courts for fourteen days, such terms as to costs or otherwise as the
or in the case of appeals from Primary court thinks fit to impose upon him.
Courts for seven days ;
772. (1) Any respondent, though he Rights of
Provided also that the court may of its respondent at
may not have appealed against any part of hearing.
own motion or on the application of a party
the decree, may, upon the hearing, not only
concerned and with reasonable notice to the
support the decree on any of the grounds
parties accelerate or postpone the hearing of
decided against him in the court below, but
an appeal, upon any such terms as to the
take any objection to the decree which he
prosecution or the costs of the appeal, or
could have taken by way of appeal,
otherwise as it may think fit.
provided he has given to the appellant or his
registered attorney seven days' notice in
Appellant and 769. (1) When the appeal comes on for
respondent to hearing, the appellant shall be heard in writing of such objection.
be heard.
support of the appeal. The court shall then,
if it does not at once dismiss the appeal or (2) Such objection shall be in the form
affirm the decree appealed from, hear the prescribed in paragraph (e) of section 758.
respondent against the appeal, and in such
case the appellant shall be entitled to reply. 773. Upon hearing the appeal, it shall be Power of court
competent to the Court of Appeal to affirm, to dimiss the
appeal, affirm,
[117, Law 20 (2) If the appellant does not appear reverse, correct or modify any judgment, vary or set
of 1977.] either in person or by an attorney-at-law to decree, or order, according to law, or to aside the
support his appeal, the court shall consider pass such judgment, decree or order therein decree or direct
new trial, &c.
the appeal and make such order thereon as between and as regards the parties, or to [119, Law 20
it thinks fit: give such direction to the court below, or to of 1977.]
order a new trial or a further hearing upon
Provided that, on sufficient cause shown, such terms as the Court of Appeal shall
it shall be lawful for the Court of Appeal to think fit, or, if need be, to receive and
reinstate upon such terms as the court shall admit new evidence additional to, or
think fit any appeal that has been dismissed supplementary of, the evidence already
under this subsection. taken in the court of first instance, touching
the matters at issue in any original cause,
Power of court 770. If, at the hearing of the appeal, the suit or action, as justice may require or to
to adjourn respondent is not present and the court is order a new or further trial on the ground of
hearing.
[118, Law 20 not satisfied upon the material in the record discovery of fresh evidence subsequent to
of 1977.] or upon other evidence that the notice of the trial.

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CIVIL PROCEDURE CODE [Cap.105
Judgment of 774. (1) On the termination of the (2) The decree shall also state by what
the court, hearing of the appeal, the Court of Appeal parties, and in what proportions, the costs
shall either at once or on some future day, of the action are to be paid.
which shall either then be appointed for the
purpose, or of which notice shall
subsequently be given to the parties or their (3) The decree shall be sealed with the decree to be
seal of the court, sealed;
counsel, pronounce judgment in open
court; and each Judge may, if he desires it,
pronounce a separate judgment. (4) As soon as the decree is sealed all the after sealing of
proceedings in the case sent up to the Court decree
proceedings to
[120, Law 20 (2) The judgment which shall be given of Appeal (together with the petition of be returned to
of 1977.] or taken down in writing, shall be signed appeal and order thereon, if any, a copy of court of first
the judgment or judgments pronounced on instance.
and dated by the Judges, and shall state
appeal, and the decree of the Court of
(a) the points for determination; Appeal) shall be forthwith returned to the
court of first instance ; which shall conform
(b) the decision of the Judges thereon; to and execute such decree in all particulars.

777. When a party entitled to any Execution of


(c) the reasons which have led to the the decree
benefit (by way of restitution or otherwise)
decision; passed in
under a decree passed in an appeal under appeal.
this Chapter desires to obtain execution of
(d) the relief, if any, to which the the same, he shall apply to the court which
appellant is entitled on the appeal passed the decree against which the appeal
in consequence of the deci