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Civil Procedure 2

Final Year
Civil Procedure- 2
Summary Procedure

s. 373 – Every application to the court, or action, of summary procedure shall be


instituted upon a duly stamped written petition present to court by the applicant.

Injunctions

* Injunction is available for the purpose of obtaining immediate relief from court.
So an injunction can be obtained by way of summary procedure

3 types of injunctions
(a) Enjoining orders
(b) Interim injunctions
(c) Injunctions (Permanent effect)

When can an injunction issued


s. 662 – Every application for an injunction for any of the purposes mentioned in s. 54
Judicature Act 1978, shall be by petition, and shall be accompanied by an
affidavit of the applicant or some other person having knowledge of the facts,
containing a statement of the facts on which the application is based.
(Except in cases where an injunction is prayed for in a plaint in any action)

s. 54 Judicature Act
Where in any action in HC / DC it appears that where it appears from the plaint
that P is entitled to a judgment against D, court can grant an injunction
(a) restraining the commission / continuance of an act / nuisance which would
produce injury to P
(b) restraining the doing / committing / procuring / threatens an act of nuisance
pending trial in violation of P’s rights in respect of the subject matter of
action & tending to render the judgment ineffectual
(c) restraining D during pendency of action from threatening to remove /
dispose of his property with an intent to defraud D

D can also apply for an injunction


If D sets up a claim in reconvention by his answer & claims an affirmative
judgment against P – then D will be deemed the P and vice versa & will have
the same right to an injunction as a P. The claim in reconvention will then be
considered as the plaint ; s. 54 (2).

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Procedure
Injunction should be granted to accompany the summons / at any time after the
commencement of the action but before the final judgment.
Injunction can be granted with / without the discretion of the court
If D appears before court, the injunction must be granted only upon notice or on
an order to show cause.
Court may grant an injunction restraining D / other person until the hearing &
decision of the application. ; s. 54 (3)

s. 663 – An injunction / an enjoining order granted by court can be enforced by the


punishment of the offender as for contempt of court in case of disobedience.

Thuraisingham v. Kathigesu – An appeal shall lie against a punishment


imposed
for disobeying an interim injunction.

Fernando v. Fernando – Where a D was charged for contempt of court for


having disobeyed an interim injunction, D was not read the charged & the fact
whether D was guilty or not was not recorded by court.
Held – D cannot be found guilty of contempt.

An applicant praying for an injunction must prove th following :


(1) Existence of a prima-facie case
(2) Balance of convenience
(3) Equitable considerations
(4) Ground of urgency
(5) Irreparable loss & damage

s. 664

(1) Before granting an injunction, court must cause the petition of application to
be served to the opposing party together with an accompanying affidavit.

(2) If it appears to court that the object of granting an injunction would be


defeated by delay, court can enjoin the D for a period of maximum 14 days in
the first instance until the hearing & decision of the application for an
injunction.
- Court can for good & sufficient reasons, extend the operation of the order for
further periods of 14 days.
- The enjoining order will lapse upon the hearing & decision of the application
for the grant of an injunction.

(3) The court may suspend the operation of an enjoining order issued under
s. 664 (2) if it is satisfied that such order was obtained by suppression /
misrepresentation of material facts. Court can do so of its own motion or on
an application made by any party

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Jinadasa v. Weerasinghe
An interim injunction must not be granted ex parte unless the injunction is supported on
strong grounds and all the necessary facts are disclosed.
Where an application for an interim injunction is granted, it should as a rule be limited to
a certain date to allow notice to be given to the other side.
Injunctions cannot be obtained for actionable wrongs, for which damages are the proper
remedy.

s. 665 – An injunction / enjoining order directed to a corporation / board / company is


binding not only on the corporation etc. itself but also on all members & officers
of the corporation etc. whose personal actions it seeks to restrain.

s. 666 – An order for an injunction / enjoining order made by court may be discharged,
varied or set aside by the court, on application made by any party
dissatisfied with such order.

s. 667 - When may court award compensation?


Court may award a sum of money as it deems to be reasonable compensation for the
expense / injury cause to the party by the issuing of the injunction if it appears that
(a) injunction was applied for on insufficient grounds
(b) the action was dismissed / judgment was given against the applicant by
default or otherwise after the injunction had been granted
(c) there was no probable ground for applying for the injunction

An award under s. 667 will bar any other action for compensation claimed in respect of
the issuing of the injunction / enjoining order.

Felix Dias Bandaranyake v. The State Film Corp.


In deciding whether or not to grant an interim-injunction, the following sequential tests
must be applied.
(i) Has P made out a strong prima-facie case of infringement / imminent
infringement of a legal right to which he has title. There must be a serious
question to be tried in relation to his legal rights & the probabilities must be
that he will win.

(ii) In whose favour is the balance of convenience? – the main factor being the
uncompensatable disadvantage of irreparable damage to either party.

(iii)As the injunction is an equitable relief granted in the discretion of court, do the
conduct & dealing of parties justify grant of the injunction. The material on which
the court should act are the affidavits supplied by P & D. Oral evidence can be led
only with consent / upon acquiescence.
Seelawathie Mallawa v. Keerthiratne
P was the owner of Keerthi cinema. According to the lease agreement, P leased the
cinema for 2 years. There was a reference in the schedule to the machinery & equipment

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which were to be used for exhibiting films. D having registered the name “New Keerthi
cinema” carried on the business of exhibiting films using the machinery.
Before the lease expired, P advertised the premises in the hope of obtaining a higher rent
& inquired from D whether he would made a higher offer.
As D by his action made it known that he was going to continue occupation on the earlier
terms, P became apprehensive & brought action seeking a declaration that she was
entitled to possession of the premises & also sought an injunction to be operative till the
final determination of the action, restraining D from entering the premises & to hand over
the machinery & to prohibit D from exhibiting any film.
DJ after inquiry restrained D only from exhibiting films. D appealed against the order.
Held
(1) Order made by DJ in restraining D from taking any benefits arising out of
wrongful possession after the expiry of the lease is justified.
(2) The DJ is also justified in refusing to grant an injunction removing D from the
premises pending the determination of the trial.

Segu Madar v. Makeen


D broke down an old house & built a new house by encroaching on a small strip of
unbuilt land belonging to P. P prayed for an injunction to compel D to remove the
building & restore the strip of land.
Held – In the circumstances, if P could be compensated by way of damages, injunction
should not be granted.

Thamothram Pillai v. Arumogam


In an action brought by a co-trustee of a Hindu temple against another for the removal of
an obstruction caused by a building to the free passage of religious worshippers, held – P
was entitled to ask for an order for the removal of the building.

Rambukpota v. Jayakoddy
Where the plaint in an action includes a prayer for an interim injunction, the application
for the injunction must be supported by an affidavit.

Hotel Galaxy v. Mercantile Hotel


As ex parte enjoining orders & interim injunctions may work grave hardship & injustice
to parties who have not been heard, grave responsibility vests on a judge to exercise the
discretion vested on him, judicially having due regard to the law. (the operation of an
enjoining order can be suspended)

Ratnayake v. Wijeshinghe
Before granting an enjoining order, court must be satisfied that there is a serious case to
be tried & that P has a fair chance of winning. An enjoining order cannot be granted
against a party in the absence of an application for an interim injunction against such
party.

Gordon Frazer v. Jean Marie


There is no provision in s. 666 to suspend an interim injunction.

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Walker Sons v. Wijayasena
A party cannot plead that the misrepresentation was due to an inadvertence /
misinformation or that the applicant was not aware of the importance of certain facts
which he omitted to place before court

Senanayake v. Peiris
A party moving to set aside an ex parte order must first go before the court which made
the ex parte order to have it vacated before moving to CA.

Peiris v. Pabilis
In awarding damages in a case where a party obtains an injunction on insufficient
grounds, court shall ascertain the real damage suffered by the other party.

Interim Orders
s. 668 – A court may, on the application of a party order the sale of any movable
property which is the subject of the action & which is subject to speedy &
natural decay by a person named in the order & in the manner & on the terms
as the court thinks fit.
The party carrying out the sale must, within the time laid down by court, deposit
the proceeds of the sale in court to the credit of the action.

s. 669 - Court may on the application of a party & on such terms as it thinks fit
(a) made an order for the detention / preservation / inspection /
survey of any property being subject to the action
(b) In order to detain / preserve / inspect / survey, authorize a person
to enter into any land / building in the possession of any other
party
(c) In order to detain / preserve / inspect / survey, authorize a sample
to be taken / an observation to be made / experiment to be tried
which may seem necessary / expedient for the purpose of obtaining
full information / evidence.

The Chettinad Corp. v. Fernando – P owned a plumbago mine. P claimed that


D were the owners of an adjoining mine & encroached upon P’s property,
tunneled into it & wrongfully extracted plumbago from P’s mine. P applied for
a commission to 2 licenced surveyors to survey & inspect the land & the
underground tunnels of D co. to ascertain the true extent of the encroachment
made by D co. upon P’s property.
Held – Court has power under s. 669 to issue & commission for the survey of
D’s property.

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Procedure for interim orders ; s. 670
An application made under s. 668 or s. 669 must be made by petition & affidavit by way
of summary procedure. Every party who is sought to be affected by the order must be
named as respondents. An application may be made by a P after service of summons or
by a D after he has appeared in the action.

Inherent powers of court


s. 839 – Nothing in the CPC shall be deemed to limit / otherwise affect the inherent
power of the court to make such orders as may be necessary for the ends of
justice / to prevent abuse of the process of court.

Where a situation is not covered by the law / procedure, court’s inherent powers play an
important role.

Sakar on Civil Procedure – Although the CPC binds all courts, it is not considered to be
binding courts exhaustively. Provision in CPC do not completely bind courts.
(a) Where CPC does not contain a provision having direct authority
(b) Where CPC provisions is based on general principles
(c) Where the provisions are not in accordance with the intention of the legislature
Court has power to make an order which is just & equitable.

Hukum Chand v. Kamalnd (IND) – CPC is not exhaustive. Court has therefore in many
cases where the circumstances require it, acted upon the assumption of the possession of
an inherent power to act ex debito justitiae & to do that real and substantial justice for the
administration of which alone the court exists.
This applies in SL as well

Narayan Chetty v. Silva – Though an order made under s. 219 CPC for a judgment
debtor’s attendance before court, cannot, if disregarded be enforced as upon
contempt of court, yet, as the court has the inherent power to summon a party
before it, if the summons is disregarded without lawful excuse, court may enforce
obedience by warrant.

Victor de Silva v. Jinadasa de Silva – Where the court orders fiscal to stay execution of
sale under a writ, fiscal is bound to obey the order whether it be right or wrong.
DC has inherent power under s. 839 to issue an order to the fiscal to stay the execution of
a writ. Fiscal must obey such order whether or not it is in conformity with the provisions
of the CPC.

Edirisinghe v. DJ Matara – P was alleged to have obstructed a commissioner who has


been directed to sell land in a partition action. DJ fixed matter for inquiry & directed P to
furnish bail to ensure P’s attendance in court.

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Held – Court had inherent power under s. 839 to inquire into the matter. But held that
court had no power to order bail.

Asilin Nona v. Peter Perera – Non compliance with an order of court in divorce
proceedings to pay alimony pendente lite amounts to contempt of court. In such a case
the court may in its discretion stay proceedings until the alimony due is paid.

Contempt of Court
s. 792 – The summary procedure to be followed for the exercise of the special
jurisdiction to take cognizance & to punish summarily offences of contempt of
court & offences declared by CPC as contempts of court is prescribed in s. 793
& s. 794

Reginald Perera v. R – In the case of contempt of court, there must be involved some
“act done / writing published that is calculated to bring a court / a judge into
contempt or to lower his authority”, or something “calculated to obstruct / interfere
with the due court of justice or the lawful process of the court”.

s. 793 - Court must issue summons to D in Form 132 in Schedule 1. The summons
must state shortly
• the nature of the alleged offence
• the information / grounds upon which the summons are issued
Summon will require D to appear before the court on a day named in the
summons to answer the charge.

s. 794 – Court can, if it has reason to believe that a0ttendance of D at the time appointed
in the summons to answer the charge cannot other be secured, to issue a warrant
for D’s arrest in Form 133 in Schedule 1 when issuing summon / after summons
has been issued.
The warrant must state
(a) the issuing of the summons
(b) the day appointed for the hearing of the charge
(c) that D must be kept in custody until the day of the hearing & must be
brought before court to answer the charge in the summons.
The person arrested under the warrant must, after arrest furnish sufficient security
to the officer in whose custody D is (the amount will be endorsed by court) in the
form of a bond for D’s appearance in court on the day of the summons

s. 796 – On the day of the hearing court must commence the hearing by asking D
whether he admits the truth of the charge or not. Court must proceed to take
evidence which may be necessary to establish the charge.

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Fernando v. Fernando – In proceedings in a DC for contempt for disobeying an interim
injunction in a partition action no charge was read out to D & D’s plea as to whether or
not D admitted the truth of the charge was not taken & recorded.
Held – The conviction of D is not valid. The provisions of s. 796 are imperative & must
be complied with for a trial to commence.

Velayuthan v. Alles – Judge made order that a car which was a production in a case
before him should not be delivered to the person who claimed it as owner except upon
certain conditions. A proctor who was retained by the claimant submitted a motion to the
judge for an order that in view of the fact that the criminal case has been finally disposed
of by the CCA, the car be delivered to the claimant. The judge directed the proctor to
appear & support the application.
When the proctor appeared, he was called upon to show cause why he should not be dealt
with for contempt of court. He was then found guilty of the offence & was sentenced to
pay a fine as the judge considered that the application for an unconditional delivery of the
car was in direct violation of the earlier order made by him & was an attempt to mislead
court.
Held – The application to court to make an order different from the order which it has
already made could not be said to have been made in violation of the order. The person
affected by the order could not be denied the opportunity to request court to vary that
order. Much less could a proctor appearing for that person be guilt of contempt of court.
A person should not be punished for contempt unless a charge is formulated either
specifically or in the form of a rule nisi.

s. 797 - (1) If D admits the charge or if after taking the evidence on both sides &
considering the court minute & hearing D’s explanation, court finds D
guilty of the charge, court must make out the conviction in Form 134 of
Schedule 1 which shall state the materials on which the conviction is
founded. Court must adjudicate upon the material facts of D’s behaviour
& language with so much of the surrounding circumstances as cause these
to constitute the offence of contempt of court. The sentence passed by
court must be recorded.

(2) If courts finds D not guilty, court must dismiss the charge & must made &
record an order to that effect.

In Re Kanagaratnam – The mere swearing of an affidavit which contains a statement


that is factually incorrect cannot amount to a contempt of court within the meaning of s.
656 CPC. The provisions of s. 656 empower a court to punish as for a contempt, only a
person willfully making a false statement.
A charge of contempt must not be tried by the judge who has already concluded that D is
guilty.

s. 798 - An appeal shall lie to CA from every order / sentence / conviction made by any
court in the exercise of its special jurisdiction to

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(a) take cognizance of
(b) to punish
by way of summary procedure the offence of contempt of court & offences
which are made punishable by the CPC as contempt of court. The appeal will be
that given in the CrimPC.

Thurairajah v. Rasiah – A W is not liable to be punished summarily under s. 440


CrimPC for committing contempt of court by giving false evidence on the basis of a
statement in his evidence which is contradictory of a statement which he made earlier to
another witness whose evidence on this point the court regards as that of a truthful
witness.

Provisional
Of Arrest & Sequestration of Judgment

s. 650 – If a P, being one of several Ps, must by way of motion / petition & affidavit & a
viva voce examination (if the judge considers such examination desirable)
satisfy the judge that P has a sufficient cause of action against D either in
respect of
(i) a money claim exceeding Rs. 1500
(ii) damage sustained for an amount exceeding Rs. 1500
& that P has no adequate security to meet the same & that P verily believes that D
is about to quit SL & if P at the same time further establishes to the satisfaction of
the judge by affidavit / by viva voce testimony such facts that the judge infers
from them that D is about to quit SL & will do so unless D is apprehended
forthwith, judge can order a warrant (Form 100 Schedule 1) to arrest D & to bring
D before court unless D gives in bail / makes a deposit an amount that the judge
considers to be reasonable & adequate. Judge must set out the amount on the face
of the order.
The warrant can be executed within 1 calendar month from the date of the order.

Provided that
If P is in possession of any security in part – P must on pain of punishment for
contempt of court set forth the same particularly in his application & the amount
of such security which amount shall be deducted from the amount of security that
is required from D.

Creasy v. Stephen – Before issuing a warrant of arrest before judgment under s. 650
court must have materials before it tending to show that the debtor is about to quit
the island under circumstances rendering it improbable that the debt would be paid.
It is not necessary & in most cases it is impossible to prove intention by direct evidence;
it is sufficient if circumstances are established from which a reasonable inference may be
drawn. A man’s intention must be collected from his acts.

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s. 651 –D who is arrested must at once be brought before court by which the warrant was
issued, in custody of the fiscal unless he gives reasonable security (Form 101 Schedule 1)
to the fiscal to appear & answer P’s claim & to abide by & perform the judgment of court
/ to surrender himself / be surrendered to be charged in execution for the same, in which
case Fiscal must be authorized to discharge D.
If D is brought before court under the warrant D must furnish bail & should abide by and
perform the judgment of the court.

s. 653 – If a P satisfies the judge that he has sufficient cause of action against D either
(a) in respect of a money claim exceeding Rs. 1500
(b) because he has sustained damage exceeding 1500
& that he has no adequate security to meet the amount & that he verily believes
that D is fraudulently alienating his property to avoid payment of the debt /
damage & if P at the further establishes that D is fraudulently alienating his
property with intent to avoid payment of the debt / damage or that D has with
such intent quitted SL, leaving behind property belonging to him – the judge may
order a mandate to issue to Fiscal directing him to seize & sequester houses /
lands / goods / money securities for money & debts to such an extent as the court
thinks reasonable & adequate.
Application must be made by petition supported by affidavit or by viva voce
testimony.

s. 654 – Before making an order for a warrant / arrest / mandate of sequestration judge
must require P to enter into a bond with / without sureties in the discretion of the
judge. The bond is to the effect that P will pay all costs that may be awarded &
damages which may be sustained by reason of such arrest / sequestration by D or
by another person in whose possession the property shall have so sequestered.
Court can award damages & costs of suit to D or to those in possession such
property shall have been sequestered.

s. 659 – If upon any investigation, court is satisfied that the property sequestered is not
the property of D – court must pass an order releasing the property from seizure
& must decree P to pay costs & damages by reason of sequestration as the court
shall deem fit.
Otherwise court must disallow the claim & make such order as to costs as it shall
deem meet.

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Revisions
s. 753 - CA may on its own motion / on any application made call for & examine the
record of any case whether already tried / pending trial in any court / tribunal /
other institution for the purpose of satisfying itself as to the legality / propriety
of any judgment or order passed therein or as to the regularity of the
proceedings of such court / tribunal & may upon revision of the case brought
before it, pass any judgment / made an order as the interests of justice may
require.

Marian Beebee v. Seyed Mohammed – The power of revision is an extraordinary power


which is quite independent of & distinct from the appellate jurisdiction. Its object is the
due administration of justice & the correction of errors sometimes committed by the SC
itself, in order to avoid miscarriages of justice. It is exercised in some cases by a judge of
his own motion when an aggrieved person who may not be a party to the action brings to
his notice the fact that unless the power is exercised, injustice will result.

Appuhamy v. Weeratunga – SC is empowered to exercise its jurisdiction in revision on


application on an aggrieved person who is not a party to the record.

Perera v. Silva – s. 753 is a discretionary remedy & is not available to a party as of right
(unlike in the case of an appeal). So if applicant has another remedy as of right court may
be reluctant to exercise its discretionary remedy.

Bandulahamy v. Silva – Where an appeal lies, the SC would ordinarily not exercise its
revision jurisdiction. But in a suitable case, there is no hard & fast rule to prevent the
exercise of the revision jurisdiction where the SC thinks it is a fit case.

Fernando v. Fernando – Though a party has the right of appeal, where an appeal has not
been lodged, unless exceptional circumstances exist, SC will not consider a revision
application.

Sinnathangam v. Meeramohaideen – SC possesses the power to set aside in revision an


erroneous decision of the DC. In a appropriate case, even though an appeal against a
decision has been correctly held to have abated on the ground of non-compliance with
some of the technical requirements in respect of the notice of security.

Amadoris v. Nenda – SC will exercise its power of revision to set aside an order releasing
property from seizure when such order is wholly based on a misapprehension.

Hotel Galaxy v. Mercantile Hotels Management – The exercise of the revisionary powers
of the appellate court is confined to cases in which exceptional circumstances exist
warranting its intervention.

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Appeals
s. 754 - (1) A person who is dissatisfied with a judgment pronounced by an original
court in a civil action to which he is a party can prefer an appeal to the CA
against the judgment for any error in fact / law.

(2) A person who is dissatisfied with a order pronounced by an original


court in a civil action to which he is / seeks to be a party can prefer an
appeal to the CA against the order for the correction of any error in fact /
law with the leave of the CA having first been obtained.

(3) Every appeal to CA from a judgment / decree of an original court must


be lodged by giving notice of appeal to the original court within in the
following manner :

(4) Notice of appeal must be presented to the original court by party /


registered attorney within 14 days from the date of decree / order
* Exclusive of the day of the pronouncement & the day on
which the petition of appeal is presented & of Sundays &
public holidays
If the conditions are not fulfilled – court must refuse to receive the notice
of appeal.
The court to which the notice of appeal is presented must receive it & deal
with it as provided below.

(5) Judgment = any judgment / order having the effect of a final judgment
made by any civil court.
Order = the final expression of a decision in a civil action which is not a
judgment.

Peter Singho v. Wydeman – An order made by the DC in dismissing an


application made under s. 86 (2) CPC is a final order & direct appeal lies
against such an order.

Punchi Banda v. Noordeen – Where decision of a Commissioner regarding the subject


matter of the action has been agreed to by both parties, then a party will not have the right
to prefer an appeal.

Viraven Chetty v. Ukku Banda – The question whether a judgment in appeal from the
court of requests is a final one depends on the circumstances of each case. It is not
possible to give a comprehensive definition of the term “final judgment”.

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Thalayaratne v. Thalayaratne – CPC does not require a party to name as respondent to an
appeal every party to the proceedings in the lower court. A party against whom no order
is sought by the appellant need not be named as a respondent.

Abdul Wahid v. Mohammed Hassim – Failure to tender the correct amount of stamps with
the first petition of appeal was a fatal irregularity & there was no provision in out law
which permits an appellant to withdraw a petition of appeal & substitute another.

Nagalingam v. Ledchumipillai (Chami case) – When an appeal is dismissed, there being


no appearance for D, the dismissal of the appeal must be regarded as involving a rejection
of the arguments which might have been raised at the hearing of the appeal. The absent
party must bear the consequences of his own laches.

Marikkar v. Abdul Azeez – No appeal lies where parties have agreed to be bound by the
order of the judge sought to be appealed from.
In an action for a right of way no appeal lies from an order given by court in accordance
with an agreement recorded by the court as follows :
“It is agreed that the parties will accept any order made by me after an inspection”.

Babunhamy v. Andiris Appu – When a judge inspects premises & delivers an order where
the parties have agreed to accept such order – no appeal would lie.

Davith Appuhamy v. Peduru Naide – Where in an action relating to land the parties agree
to be bound by the order which the court would made after inspection of the land without
any evidence being recorded – the order of the court made in accordance with the
agreement cannot be appealed from.

s. 755 – (1) The notice of appeal must be distinctively written on good & suitable
paper & it must be signed by the appellant or his registered attorney &
must be duly stamped.
Notice must contain :
(a) Name of the court from which the appeal is preferred
(b) Number of the action
(c) Names & addresses of parties to the action
(d) Names of the appellant & the respondent
(e) Nature of the relief claimed

(2) Notice of appeal must be accompanied by


(i) Security for R’s cost of appeal is such amount & nature as
prescribed in the SC Rules or acknowledgment / waiver of security
signed by R / his registered attorney
(ii) Proof of service of a copy of the notice of appeal on R / attorney in
the form of a written acknowledgment of the receipt of such notice
or the registered post receipt.

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(3) Appellant must present to the original court a petition of appeal setting out
the circumstances out of which the appeal arises & the grounds of
objection to the judgment & containing the particulars required by s. 758
within 60 days of the date of judgment.
The petition must be signed by appellant / AAL
(petition is exempt from stamp duty)
- If petition is not presented to original court within 60 days
court must refuse to receive the appeal.

s. 758 – (1) Petition of appeal must be distinctly written upon good & suitable
paper & must contain the following
(a) Name of court in which case is pending
(b) Names of the parties to the action
(c) Names of appellant & respondent
(d) Address of the CA
(e) A plain & concise statement of the grounds of the
objection to the judgment / order appealed against
(in duly numbered paras)
(f) A demand in the form of relief claimed

(2) CA in deciding a appeal must not be confined to the grounds


stated
by the appellant in the petition of appeal. But CA must not rest its
decision on any ground not set forth by the appellant unless R has
sufficient opportunity of being heard on that ground.

(4) Upon the petition of appeal being filed court must forward the petition
of appeal together with all the papers & proceedings of the case relevant to
the judgment appeal against as speedily as possible to CA (retaining an
office copy of the judgment for the purposes of execution if necessary).
The proceedings must be accompanied by a certificate from the registrar
of the CA stating
(a) dates of the institution & decision of the case
(b) in whose favour it was decided
(c) dates on which notice & petition of appeal were filed
(d) opinion of the judge as to whether there is a right of appeal against the
judgment

(5) On receipt of the petition of appeal, registrar of the CA must number


the petition & must enter the number in the register of appeal & must
notify the parties concerned by registered post.
- When the judgment of the original court has expressed an opinion
that there is no right of appeal against the judgment / decree
appealed against, registrar must submit the petition to the President
of the CA / other judge nominated by the President who must

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require the petition to be supported in open court by Petitioner on a
day fixed by the judge.
- After hearing P, court may reject the petition / fix a date for the
hearing of the petition & order notice to be issued on R.
- When a petition is rejected, court must record the reasons for the
rejection.

What is summary procedure?


The procedure of an action is either regular / summary. As a general rule procedure must
be regular except where the CPC or other statute specially provide that proceedings may
be taken by way of summary procedure in a particular case.

Summary procedure can be used for obtaining


• substantial relief when no other action is pending
• incidental relief in an already pending action

What are the steps under regular procedure?


(1) Filing plaint in court
(2) Issuing summons toD
(3) Filing of answer by D
(4) Having an ex parte or inter parte trial.

Summary Procedure
But where a speedy remedy is required (as where delay may result in irreversible loss)
summary procedure may be adopted.

Instances where Summary procedure is applicable


(1) To recover monies when a cheque is dishonoured
(2) Procedure for divorce after being in de facto / de jure separation ; s. 608 (2).
(3) When obtaining interim injunctions
(4) To prevent unnecessary expenditure of money / time under the CPC

16
Procedure
s. 373 – An application to court / action of summary procedure must be instituted upon a
duly stamped petition presented to court by the applicant.

s. 374 – Petition must be written in suitable paper & must contain the following
(a) Name of court & date of presenting petition
(b) Name / description / place of abode of petitioner
(c) Name / description / place of abode of respondent
(d) A plain & concise statement of fact constituting the ground of the
application & its circumstances & the petitioner’s right to make the
application (such statement must be set out in numbered paras)
(e) A prayer for the relief / order which the petitioner seeks.

s. 375 -If the application instituted in the course of a pending action (whether summary /
regular) petition must be headed with a reference to its number in the court & the
names of the parties thereto & must be filed as part of the record of the action &
all proceedings taken / orders made on the petition must be duly entered in the
journal.

s. 376- An affidavit must be attached to the petition so far as it can be conveniently


attached to the petition. (also authenticated copy records / processes / other
documentary evidence) as may be required to furnish prima facie proof of the
material facts set out in the petition.
Or else court may, at its discretion direct petitioner to adduce oral
evidence before court for this purpose which must be taken down by the court
in writing.

s. 377- If the court is satisfied on the evidence exhibited / adduce that the material facts
of the petition are prima facie established / is of opinion that on the footing of
these facts P is entitled to the remedy / to the order in his favour for which the
petitioner prays – then court must make
(a) an order nisi conditioned to take effect in the event of the respondent not
showing cause against it on a day appointed by the order for that purpose OR
(b) an interlocutory order appointing a day for the determination of the matter of
the petition & intimating that R will be heard in opposition to the petition if R
appears before court on the day so appointed.

s. 378- In s.377(a) order nisi may comprise of an order against the respondent to pay the
costs of the petitioner.

17
s. 379- In both s. 377 (a) or s. 377 (b) the order must be put in writing & a copy of the
order & a copy of the petition must be served on the respondent by the Fiscal just
as in the case of serving summons in a regular action.

s. 380- If the court is not satisfied that the material facts on the petition are prima facie
established / that on the footing of those facts P is entitled to the relief that he asks
– court must refuse the petition.

s. 381- Petition with its exhibits, adduced evidence & the order made thereon must be
filed in court whether the order is either in s. 377 (a) or s. 377 (b). or is an order
refusing the petition.

s. 382- If the petitioner does not appear before the court on the day appointed for the
determination of the petition – Court must dismiss petition can order cost to the R.

s. 383- If R does not appear – if court is satisfied by affidavit of serving officer that the
order had been served on R – if the order is an order nisi court must make it
absolute. (Must pass no other order that is adverse to R)
If court is not satisfied by affidavit of officer –must make an order withitn
the prayer of the petition as court feels right on the facts proved (but here
court must not make an order for cost against R).
But even where R does not turn up court can dismiss the petition if it has reason
to do so.

s. 384- If both P & R appear on the day appointed for determination of the petition –
(a) R must commence proceedings by stating his objections to P’s petition
(b) R must be entitled then read the affidavits / other evidence of P
(c) R can adduce oral evidence in support of his objections
(d) R can rebut / refute the evidence of P
But no affidavit can be read of R can be read by him without express leave of
court unless a copy of the document has been served on P at least 48 hrs before.

s. 385- When R states his objections and after he gives evidence the P is entitled to reply
to the R s case.

s. 386- When R’s evidence has been taken court can on the request of P, adjourn matter
to enable P to adduce additional evidence OR
Frame issues of fact between P & R and adjourn matter for the trial of the issues
by oral testimony.
On the day on of the trial of issues additional evidence must be adduced & the
issues must be tried in conformity with the rules for taking evidence in a regular
action.

18
s. 387- Final Order
After the evidence has been taken and P & R have been heard, court must
pronounce its final order at once / on a future day of which notice must be
given at the termination of the trial.

s. 388- (1) The final order must be endorsed on the order nisi / on the interlocutory
order as the case may be.
(2) If the final order is endorsed on the order nisi, the order nisi will be
simpliciter either in the shape of “order discharged” / of “order made
absolute”
(3) If the final order is endorsed on the interlocutory order, court must make
the order within the prayer of the petition as it must consider right on the
facts proved.

s. 389- No appeal shall lie against a final order which has been made when R has not
appeared.
But court can pass an order within a reasonable time after the passing of the final
order to entertain another application by way of summary procedure by a R
against whom the order has been made to have the order set aside on the ground
that R had been prevented from appearing after notice of the order nisi /
interlocutory order by reason of misfortune / the order was never served upon
him.
If court is satisfied with the ground of R’s application court can set aside the
final order on such terms & conditions that court feels just.
When the final order is set aside – court must proceed with the hearing &
determination of the original petition as from the point at which the final order
was made.

Summary procedure on liquid claims

P can institute a regular action where the claim is for a debt / a liquidated demand in
money rising upon a document. But if P wants to proceed against the principle or the
guarantor by way of summary procedure – action can be instituted by presenting a plaint
supported by an affidavit.

s. 703- All actions where the claim is for a debt / a liquidated demand in money rising
upon a Bill of Exchange / Promissory notice / cheque / instrument or contract
in writing of a liquidated amount of money, if P desires to proceed by way of
presenting a plaint to court.

s. 704- (1) In a case by way of summary procedure D may not appear / defend the
action unless he obtains leave from court to appear / defend.
If D fails to obtain leave – P is entitled to a decree for any sum not

19
exceeding the sum mentioned in the summons together with interest to the
date of the payment & such costs as the court may allow at the time of
making the decree.

(2) D will not be required to pay the sum mentioned in the summons to court
or to give security as a condition of his being allowed to appear & defend.
(unless court thinks D’s defence is not prima facie sustainable / has
reasonable doubt as to P’s good faith.

Whitham v. Pitcha Muttu – A claim for unliquidated damages is a defence to an action


on a promissory note.

Ponnapa Chetty v. Ayasamy Chetty – Any alteration on a promissory note which would
alter the business effect of the instrument if used for a business purpose is material.

Wijewardena v. Appu – D gave a blank promissory note to the P to fill the amount
therein. But he inserted 18% per annum without authority. Note was materially altered
and action cannot be maintained.

Sendirigapitiya v. Demalamane – An undertaking given in a promissory note to pay


money on demand or in default of payment – to sell & transfer shares of a land is not a
valid promissory note.

Ramanthan v. Fernando – In an action brought upon a liquid claim D has the right to
appear & defend upon depositing his court the amount in claim even where the court
finds that no valid defence is disclosed.

Chelliah v. Aron – P sued D. Affidavit was filed by D’s brother on behalf of D asking for
leave to appear & defend unconditionally. The matter was fixed for inquiry but on that
date D was absent & D’s AAL asked for a postponement. Judge refused postponement &
entered judgment for P.
Held – the order entering judgment for P was wrong. In spite of D’s absence, the judge
should have inquired into D’s application for leave to defend on the affidavit before him.

s. 705- (1) P must state in affidavit that the some he claims is justly due to him from
D.

(2) If the instrument is properly stamped & is not suspect of having been
altered / erased & is not barred by prescription – court has discretion to
order the service of summons on D.

Central Union Insurance v. Boteju – Stamp duty must be paid for summons to be issued.

(3) The date to be inserted in the notice for D’s appearance must be as early a
day as must be conveniently named. Regard must be had to D’s distance
from the court.

20
Silva v.Weerasooriya – Where a promissory note payable on demand contains an
endorsement on the back signed by the payee to the effect that “This promissory note is
given on the condition that the promissory note shall not be filed in court or sued upon
by the payee or any holder of it within 2 years of the date thereof & I undertake not to do
so till the expiration of the said period”.
Court held that leave should be granted unconditionally.

s. 706- Court must give D leave to appear & defend the action if D pays the sum
mentioned in the summons to court / on D giving affidavits which disclose a defence
which would make it incumbent on the holder of the instrument to prove consideration /
other facts as the court may deem sufficient to support the application.

Sudeen v. Miraya – Court must not dismiss the plaint without letting D present his
defence. 3 CLW 138

s. 707- After decree court may set aside the decree under special circumstances & set
aside / stay the execution if necessary. Court can give leave to D to appear
& defend the action if court thinks it is reasonable on terms which the
court thinks fit.

Khan v. Sally – Dilatoriness (causing delay) on the part of the AAL which
resulted in the failure to comply with a court order within the time fixed does not
amount to proof of special circumstances as contemplated by s. 707.

s. 708- Court may order the instrument to be deposited with an officer of the court & may
order that all proceedings be stayed until P gives security for the costs of the
proceedings.

21
Executors & Administrators
Testamentary actions procedure

2 types of procedure
(a) Testate
(b) Intestate

Will – an instrument setting out the manner in which the property of a deceased should
be
devolved.

Codicil – An instrument created to amend a will.

s. 554 A
(1) A Probate Officer = the Registrar of the DC & includes any other officer who is
authorised by court to exercise the powers & perform the duties of a probate
officer in testamentary proceedings.

(2) “Estate” & “property” of a deceased are deemed not to include


(a) Money / movable property lying in a bank to the credit of deceased
(b) Monies represented by shares / deposits (If deceased has made a
nomination under s. 544 (1))
(c) Monies payable under a contract of insurance

Nomination s. 544
(1) A person over 16 years who has
(a) money in an account (other than a current account in a Commercial Bank

(b) a share in. a company as defined in Companies Act,

(c) a life insurance policy issued by Insurance Corporation of Sri Lanka, / by a


corporation incorporated under Insurance (Special Provisions) Act / by a
company registered under Control of Insurance Act as being authorised to
transact insurance business ;

(d) money in deposit in a finance company registered under Finance Companies


Act
(e) other movable property in a ‘vault in

can nominate a person to whom the money / share / other movable property
lying to the credit of / in the name of the nominator must be paid/transferred
upon nominator’s death.
(2) A nomination has effect upon the death of nominator notwithstanding anything to
the contrary in nominator’s last will.

22
(3) A nomination is deemed to be revoked by
- death of nominee during lifetime of nominator
- by a written notice of revocation signed by nominator in the presence
of an attesting witness
- by a subsequent nomination made by the nominator.

(4) Nominee must satisfy bank / institution of the true identity before money etc. is hand
over by bank/institution.

(5) The handing over/transfer money etc is a complete discharge of obligation owed by
bank/institution to nominator.

• When a person dies leaving a last will – probate is granted to executor. If a


person dies intestate – letters of administration is granted. (Sometimes Public
Trustee can be appointed as Administrator)
• Court can issue certificates of heirship

Death intestate leaving property of more than Rs. 500,000 s. 525

If a person dies in SL intestate leaving property in SL amounting to Rs. 500,000

- widow/next of kin must


- within 1 month of date of death
- report death to DC of district in which he died
- and make an oath / affirmation or produce an affidavit verifying the time &
place of
death
- stating if the intestate has left property within jurisdiction of that DC / other DC
& the
nature & value of the property.

Administration is compulsory if estate is over 500,000. Court can order a person to


administer estate ; s. 527

Death testate of a person s. 516 & s. 517

s. 516 – If a person dies testate in SL


- the person in whose keeping / custody the will was deposited / who
finds the will after the testator’s death
- must produce will to DC of the district in which the depository / finder
resides / in DC of district in which testator died
- within 3 months after the finding of will
- Depository / finder must make an oath / affirmation / produce an

23
affidavit verifying time & place of death
- must state that testator has left property within jurisdiction of DC / other
DC & the nature & value of property

• The will produced is numbered & initialled by Probate Officer & is deposited
and kept in record room of DC
s. 517 – Application for probate / administration

If a person dies testate & property in Sri Lanka is affected by the will
- person appointed as executor can apply to
- DC of the district within which he resides / within which testator
resided at the time of his death / within which any land belonging to the
testator’s estate is situated
- within the time limit and in s. 524
- to have the will proved & to have probate granted to him

• A person interested in having the property of testator administered (by virtue


of the will / otherwise) can also apply to DC to have the will proved & to
obtain administration of the estate himself.

• If a person entitled to administration is absent from SL – court grants letters


of administration (with / without annexation of will)to the duly appointed
attorney of the person.

Probate / administration compulsory when there is a will ; s. 518

When can Public Trustee be appointed as administrator?

s. 519 – Where (a) court thinks there is no person fit & proper to be appointed as
administrator OR
(b) there no person willing to be appointed as administrator
* Public trustee cannot be appointed as administrator in any other
instance.
s. 521 - Application for administration by Public Trustee

(1) Application of Public Trustee for letters of administration must state


(a) the time and place of death to the best of the knowledge and belief of the
petitioner ;
(b) the names and addresses of the heirs
(c) the full and true particulars of the property left as far as can be ascertained;
(d) particulars of the liabilities of the estate, if known.

• The Public Trustee is not be required to file accounts of the property (unless
directed by the court)

24
s. 522 – Duties of Public Trustee in administering estate
When Public Trustee obtains probate / letters of administration he must comply with the
provisions of relating to administration of estates as far as practicable
BUT
Public ‘Trustee is not required to
(a) a take oath as executor / administrator
(b) furnish a bond / security (but is subject to the same liability & dues as if he
had .given a bond / security)
(c) affix stamps on a document (but must make payments required by the Stamp
Duty Act)
(d) tender final accounts (unless court directs otherwise)

Mode of application for probate & proof of will s. 524

(1) An application to DC must be made within 3 months from date of finding & must
be made by way of petition & affidavit.
Petition must set out
(a) the fact of making the will
(b) details & situation of the deceased’s property
(c) heirs of deceased to the best of P’s knowledge
(d) grounds on which P is entitled to have the will proved
(e) the character in which P claims (eg. as creditor / executor / administrator / residuary
legate / legatee / heir / devisee)

(2) If will is not already deposited in DC in which the application is made it must be
- appended to the petition OR
- brought into Court & identified by affidavit with the will as an exhibit or by parole
evidence

(3) If will is deposited in another court – P is entitled to procure the court in which the will is
deposited to transmit the will to the court to which the application is made.
The application must be supported by evidence by affidavit / exhibits / oral evidence
proving that the will was duly executed & establish the character of the P according
to his claim.

(4) P must tender with petition


(a) proof of payment of charges to cover the cost of publication of the notice
under s. 529
(b) consent in writing of the respondent’s consent to his application

(5) If P has not reason to suppose that his application would be opposed – P must file an
affidavit to that effect together with petition & must omit to name a respondent.

25
Execution of a Decree

Action to include whole claim s. 34

(1) An action must include the whole of the claim that P is entitled to make in
respect of the cause of action.
BUT
P can relinquish any portion of the claim to bring the action within the
jurisdiction of a court.

(2) If P does not intentionally sue in respect of whole claim – cannot later sue
in respect of the portion of the claim that was omitted / relinquished.
Illustration
A lets house to B at an yearly rent of 1000. Rent for 2 years due &
unpaid. A sues B only for the rent for one of those years. A cannot
later sue B for the rent due for the other year.

• A P who is entitled to more than 1 remedy in respect of his cause of


action can sue for all / any of his remedies but if P omits (except with
leave of court) to sue for a particular remedy – cannot later sue for the
omitted remedy.

(3) An obligation & a collateral security for its performance is deemed to


constitute 1 cause of action.

Kandiah v. Kandasamy – s. 34 does not bar the institution of 2 separate


actions on 2 different causes of action (even though the 2 different causes
of action arise from the same transaction)
The institution of an action by one partner is a partnership for the recovery of
his share of the profits is not a bar to the institution of a subsequent action by
him for his share of the capital of the partnership business. So
s. 34 does not prevent P from maintaining the 2nd action.

Morais v. Victoria – P claimed a declaration of title to 13 lands.


Previously P had sued same D claiming of 3 other lands on the same title.
2 cases came up together & the 1st case was laid by until 2nd action was
concluded.
Held – The filing of the 1st action does not constitute a bar for the 2nd
action. s. 34 or s. 207 is not a bars to the 2nd action.

26
Finality of decrees s. 207
All decrees passed by the court must be final between the parties (subject to appeal when
such appeal is allowed). No P shall hereafter by non-suited.

Explanation – * Every right to property /money / damages / relief of any kind that
is set up/put in issue between P & D in an action

* Whether it be actually claimed/set up/put in issue or not in that


action,

* Becomes after passing the final decree a res adjudicata, which


cannot afterwards be made the subject of action for the same cause
between the same parties.

Dharmadasa v. Perera – s. 207 applies to a decree absolute for default


that has been passed against a D by a DC & decree can therefore act as res
judicata in a subsequent action between the same parties in respect of the
same subject matter.

Herath v. AG – An action in DC Kandy against Land Commissioner &


AGA Nuwara Eliya which was dismissed due to non-appearance of a P
does not operate as res judicata in a subsequent action against AG &
another in respect of the same land because the parties in the 2 actions
were different.
Basnayake CJ : the whole of the law of SL on res judicata is found in ss.
34, 207 & 406. The decrees spoken of in s. 207 are decrees drawn up by
court under s. 188 after judgment has been pronounced. s. 207 therefore
applies only to decrees pronounced after there has been adjudication on
the merits of a suit – not to a decree entered under s. 84 in consequence of
non-appearance of a P.

Fernando v. Menikrala – A dismissal of a partition action does not operate


as res judicata in a subsequent action for declaration of title since the
applicant is only trying to prove a better title to a share of the land
although he has no absolutely good title against the whole world.

Peiris v. Peiris – An order dismissing a claim on the ground that the


application was improperly made does not make such order operate as res
judicata because the order does not fall under s. 244, s. 245 or s. 246.

Palaniappa v. Gomez – P brought action in Colombo DC. D was resident


in Kalutara. P was ordered to give security for costs. P failed to do so &
the action was dismissed . P brought filed another action on the same
cause of action in the DC of Kalutara. D pleaded the dismissal of the
action in Colombo as res judicata

27
Held – Dismissal of first action operated as res Judicata & barred the
second action.

Mohamed Cassim v. Sinna Lebbe – Dismissal of an action for


declarationof titleto land on the ground that P disclosed no valid cause of
action does not operate as a bar to a second action for the same relief.

Kantaiyer v. Ramu – A husband H was unsuccessful in an action brought


by him, in claiming certain lands which contended were belonging to his
son (S) (a minor) by inheritance from his wife (W). H sued as the guardian
of S.
Later H obtained letters of administration to W’s estate & sued the same
defendant
The defendant objected that the decision dismissing the previous action
was res Judicata.
Held – The decision in the first action is no bar to the second action as the
appellant did not appear in the same capacity in both cases.

Muttupillai v. Chinnapillai – A granted a bond in favour of B. After B’s


death, C (the illegitimate child of B sued A as B’s sole heir & obtained
judgments. Later E, the legitimate child of B sued A on the same bond.
Held – E cannot maintain the action.

Manuel Istaky v. Sinnnatamby – Several debtors executed a joint


promissory note. A judgment was obtained against only one debtor in an
action. The creditor later filed a second action against other debtors.
Held – The creditor is debarred from file an action against other joint
makers although the judgment obtained against one debtor is not satisfied.

Appuhamy v. Banda – A D who had neglected to set up a claim in


reconvention is not barred from bringing a separate action for
compensation for the improvements effected to the land when he was in
occupation.

Samichi v. Peiris – s. 207 does not embody the whole law as to res
Judicata. Our law as to res Judicata is to be found in s. 207 and it may be
supplemented by English law. But EL cannot supersede the s. 207 or
restrict/expand its scope or meaning.

Perera v. Fernando – The dismissal of an action for declaration of title to


land because of P’s failure to proceed operates res Judicata even though
the formal decree was not entered in the first case in terms of s. 188

Katiritamby v. Parupathipillai – An erroneous decision an a pure question


of law will not operate res Judicata.

28
Fernando v. Perera – P is barred from filing a new action on the same
matter on which P had already instituted an action & withdrawn without
reserving the right to bring a fresh action.

Elias Appuhamy v. De Silva – Where P sued Ds on a joint debt & obtains


judgment against D1 & withdraws his action against D2,D is barred from
suing D2 on the same cause of action a second time.

Saiboo v. Abuthahir – Bond stated that the principal sum is payable on


demand and that the interest must be paid for a period 4 years once in 6
months & thereafter monthly.
Held – Here the covenants regarding the payment of the principal sum &
the interest are separate & independent. So an action to recover the interest
will not bar a later action to recover the principle amount.

Banda v. Karohamy – A D is bound to set up by way of defence, every


ground available to him. If he fails to do so, he cannot in a subsequent
action be permitted to rely on the self same ground in support of his claim.
BUT
Madan v. Nana Andy – D, in his action pleaded that he was public servant
and claimed the benefit of the Public Servants Liabilities Ord. His plea
was rejected & judgment was entered against him. In execution
proceedings, D sought to raise the plea again.
Held – D could raise the plea. The previous finding did not operate as res
judicata.

Mohamed Cassim v. Mahmood Lebbe – A decree operates as res


Judicata only as between parties or those claiming through such
parties. It does not operate in actions brought by / against persons
whose interest is almost identical with that of one of the parties to the
first action but who do not actually claim through such party.

Punchi v. Tikiri Banda – P applied for maintenance in respect of


illegitimate child but later withdrew her case on the date of trial saying
that she had not enough evidence to prove paternity. Later, she filed a
second action in respect of the same child.
Held – the order of dismissal in the first action operated as a bar to the
second action.

Ponniah v. Sheriff – The court is not bound by an earlier action in which


material cases & statutory provisions were not considered.

Vajiragnana Thero v. Gintota Anomadassi Thero – P of the first action


died pending the first action. The first action was abated on the ground
that the cause of action
did not survive the death of P.

29
Held – it is competent for the deceased P’s successor in title to institute a
fresh action against the same D for similar relief.

Fernando v. Fernando – A plea based on facts which did not exist at the
time of the 1st action but which came into existence subsequently cannot
be said to be one which could have been raised in the 1st action.
If a right accrues after the institution of an action, the P is not bound to put
in issue that right the moment it accrues to him.

Nilabdeen v. Farook – An order regarding possession made in criminal


proceedings (s. 66 action) does not operate as res judicata in respect of the
questionof title arising in a subsequent civil action.

Suppiah Veeravagu v. Wilson Samarawicrema – The doctrine of res


judicata applies only to a judgment of a court of competent jurisdiction.

Jayasinghe v. Kiribindu – An erroneous decision of law does not prevent


the court from deciding the same question arising between same parties in
a subsequent action according to law (unlike a decision on a question of
fact or of mixed law & fact).

Godagama Chulankara Thero v. Lavndris – Dismissal of the 1st action due


to formal defect in the plaint will not terminate the actual controversy by a
judgment. The P is entitled to file a 2nd action for the same relief as the res
judicata does not operate in such an instance.

Withdrawal & Adjustment of action s. 406


(1) If court is satisfied after the institution of the action that
(a) the action must fail by reason of some formal defect OR
(b) there are sufficient grounds for permitting P to withdraw action / abandon part
of claim with liberty to bring a fresh action for the subject matter of the
action. in respect of the abandoned part
Court can grant permission to withdraw & order costs as court thinks fit.

* BUT s. 406 does not allow court to permit one of several Ps to withdraw
without the consent of other Ps.

(2) If P withdraws from action / abandons part of his claim without permission of
court – P is liable for the costs court awards & is precluded from bringing a fresh
action.

30
Who can apply for Letters of Administration? s. 526
When a person
- dies without leaving a will
- where the will cannot be found
- if the person has left property in Sri Lanka
an application for can be made by
(a) a person interested in having the estate of deceased administered for LA
(b) an heir of deceased may apply for the issue of certificates of heirship to each of
the heirs entitled to succeed to the estate of the deceased.

Application must be made in accordance with s. 528 to DC of the district


- within which the applicant resides
- within which the deceased resided at the time of death
- within which land belonging to deceased’s estate is situated

Application for Letters of Administration


(1) Application to the DC for grant of LA / for the issue of certificates of heirship must
be made within 3 months from the date of death & be made by way of petition &
affidavit and must be set out in numbered paragraphs
(a) the fact of absence of the will
(b) death of deceased
(c) heirs of deceased to the best of P’s knowledge
(d) details & the situation of deceased’s property
(e) particulars of the liabilities of the estate
(f) particulars of the creditors of the estate
(g) character in which P claims & the facts which justify him doing so
(h) the share of the estate which each heir is entitled to receive if agreed to by the
heirs.

(2) Application must be supported by sufficient evidence to afford prima facie proof of
the material averments in the petition.
- It shall name the next of kin of the deceased as respondents.
- If the P has no reason to suppose that his application will be opposed he
shall file an affidavit to that effect.

(3) The P shall tender with petition-


(a) Proof of payment of charges to cover cost of publication of notice under s. 529
(b) consent in writing by the respondants.

31
Publication of notice relating to applications made under s. 524
& s. 528
(1) Every application made to the DC under s. 524 & 528 shall be received by the
Probate Officer(PO) of the DC, and shall be registered. The PO shall thereafter cause
the required publications to be made.

(2) The PO shall, on any day of the week commencing on the third Sunday of the month
cause a Notice in Form No. 84 in the 1st Schedule to be published in a prescribed
local newspaper in S/T/E. incorporating the information relating to-
(a) application under s. 524 / 528 received by the DC in the preceding 1
month &
(b) application under s. 524 / 528 received & incorporated for the DC &
incorporated for the first time in the notice published in respect of DC in
previous month,

• Thus applications are published on 2 separate occasions in 2 consecutive


months.

(3) Notice calls upon persons having objections to the making of an order declaring any
will proved / grant of probate / letters of administration / certificates of heirship to a
person to whom the notice relates to submit their written objections
Objections must be supported by affidavit before specified date.

(4) Copies of objections must be forwarded by the objector to person applying & to other
party named in objection.

What orders are made on applications under s. 524 & s. 528 ?


s. 531
(1) If no objections are received in response to a notice published the Court shall
(a) in the case of an application under s. 524, if the Court is satisfied that evidence
adduced is sufficient to afford prima facie proof as to the due making of the will
& the character of the petitioner - court makes order declaring the will to be
proved.
If the applicant claims-
(i) as the executor & asks for probate – probate must be granted subject to
conditions
(ii) in any other character than executor - asks for administration of decease’s
property- court orders power to administer deceased’s property according
to the will with a copy annexed OR

(b) in the case of an application under s. 528


(i) make order for the grant of letters of administration

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(ii) make order for the issue of certificate of heirship in Form No. 87 A First
Schedule to each of the heirs in the application stating the
share of the estate which each heir is entitled to receive (if
agreed to by the heirs)

(c) in case of an application under s. 528 for the issue of certificates of heirship -
make order for the grant of letters of administration instead, to a person entitled to
take out administration subject to conditions if court thinks necessary to appoint a
person to administer the estate.

(2) Certificates of heirship issued under s. 531 (1) (b) (ii) is sufficient proof of the true
heirs of the deceased & can be produced to claim a share in respect of a right / title /
interest accruing upon intestacy.

(3) For making an order the Probate Officer shall submit all papers, relevant to the
application to the District Judge in Chambers on the day following the date specified
in the notice published and the court shall make an order.

Procedure where there are objections

s. 532
(1) If any objections are received in pursuance of a notice published on or before the date
specified therein the Court shall proceed to hear try and determine such application as
provided and may name a day for final hearing and disposal of such application and
may make an order under s. 541.

(2) To make an order under the Probate Officer shall submit all papers to the District
Judge in Chambers

Administration pendente lite s. 541


(1) If a legal proceeding touching
- the validity of the will
- the obtaining, recalling or revoking grant of probate or letters of administration
- the obtaining of a certificate of heirship
is pending - court can on the ground undue delay / sufficient cause-

(i) grant LA to the estate of the deceased to an administrator limited for the
duration of the proceeding (Such administrator is subject to the immediate
control of the court and act under court direction & has the right to
distribute the estate
OR

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(ii) if it becomes necessary to sell any property of estate prior to granting
probate / LA - court can grant letters limited for the purpose of selling
property. (Then the property must be specified in the grant & the grant
must expressly state that the letters are issued subject to the condition that
(a) the sale is at the price fixed by court (if by private treaty)
at an upset price of otherwise (if by public auction)

(b) the net proceeds of sale must be deposited in court within the time
prescribed by court.

(c) the administrator to whom the letters are issued is not empowered to
execute a deed of conveyance of immovable property - prior to the
confirmation of sale by court

(d) any other stipulation

(2) Before making an order for grant of letters R to the original petition for probate / LA /
certificates of heirship must be given notice of the application & R / other person
interested in the estate must be heard in opposition (unless he has signified their
assent to the sale)

Court must frame issues at final hearing


s. 533.
If on the day appointed for final hearing, or the day adjourned to enable persons filing
objections satisfy the court that there are grounds objecting for to the application, such
applications ought to be tried viva voce, evidence. Then the court shall frame the issues
which appear to arise between the parties, which will be tried on an appointed day.

What orders can be made on the final hearing?


s. 534 (1)
If at final hearing court thinks that,
(a) the prima facie proof of the material averments have not been rebutted - court
must order grant of probate / LA with the will annexed / grant of administration
with conditions / issue of certificates of heirship

(b) that prima facie proof of the material averments have been rebutted - court must
dismiss the petition, and if a person who has filed objections has established his
right to probate / administration estate must be granted to him instead of P

(c) if person listed in petition is not in fact an heir / another person not listed in the
petition as an heir has established his right to be recognised as an heir - then court
must make an order accordingly

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(d) If applications are for the issue of certificates of heirship & court feels that that
LAs ought to be granted instead - court must order for the grant of administration

(2) Dismissal of petition will not bar renewal of the application so long as another has not
been granted probate / administration

Procedure where a corporation is appointed as executor /


administrator s. 535
(1) If a Corporation is appointed executor under a will (alone or jointly with another
person) - court can grant probate to corporation solely / jointly with the other
person

(2) Letters of administration can be granted to a Corporation solely / jointly with


another person & Corporation can act as administrator

(3) An officer authorized for the purpose of Corporation can swear affidavits /
take the oath of office / give security / do any other act which court requires on
behalf of the Corporation. Acts of the officer is binding on the Corporation.

Appointment of guardian / manager s. 530


If an heirs / legatees / beneficiaries a minor without a natural guardian / person of
unsound mind without a guardian - appointment of a guardian / manager must be made
by DC upon an application to DJ. (The application must be heard in Chambers)

Who can file a caveat s. 536


After the notice is published under s. 529 & before the final hearing of petition
any person interested in the will /deceased’s estate, though not a person specified in the
petition can intervene by filling a caveat in court as set out in Form 93 First Schedule
against allowing P’s claim.
Court can permit other party to file objections & can adjourn the final hearing of the
petition.

Letters ad colligenda s. 543


If a person dies leaving property in SL DJ in DC in which such property is situated must
issue letters ad colligenda if DJ is satisfied that there is no next of kin / other person in
SL entitled to administer the estate as in the Form No. 91 First Schedule to one / more
responsible persons to take charge of the property until the property iis claimed by some
executor / administrator lawfully entitled to administer the same, / an heir to whom a
certificate of heirship has been issued.

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Limited probate / administration s. 540
Court can grant probate or administration limited in respect of :
- Duration or
- Property or
- Power of dealing with property

a) when the original will is lost but a copy has been preserved, the grant / probate is
limited until the original is brought to court. Probate of that copy may be granted,
limited until the original is brought to court.

b) If will is lost and no copy preserved, probate of a draft will be granted and if no
draft probate of the contents and the substance granted as far as it can be
established by evidence.

c) When original will with a person residing outside SL, an executor produces a
copy, then probate of that copy is limited until the original be brought to court.

* If will is duly proved out of SL, probate may be granted to the executor on a
proper exemplification of the foreign probate without any limitation in the
grant.

d) If sole executor / all executors live outside SL / those residing in SL refuse to act
– court can grant administration with a copy of the will annexed to a person in SL
as the attorney of the executors. Grant of administration limited to the use and
benefit of the principle until the executor comes to obtain probate for himself.

* If the document produced is a copy – grant of administration is further limited


until original is brought to court.

* only if all executors decline can an attorney be appointed.

e) In the case of a will where no executor is in SL willing to act –


* grant of administration with copy of will annexed may be made to an
attorney of an absent residuary legatee or heir, limited until the principal comes or

* administration may be granted to the guardian of a minor residuary legatee


within SL limited during minority or

* to the manager of a residuary legatee who is of unsound mind limited


during such unsoundness.

f) In the case of intestacy, grant of administration to a guardian or manager of minor


heir or heir of unsound mind.

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g) Court may grant probate/administration limited to a particular property where it
considers that a larger grant is unnecessary.

All material facts to be set out in the petition and established by prima facie evidence
before the court order is made.

Probate when executor is appointed for a limited purpose s. 546


If a person is appointed executor for a particular purpose only and not executor of the will
generally - probate wilI be granted for that limited purpose only.

Inventory & valuation s. 539


Where a DC declares a person as entitled to have probate / administration it is the duty of
the person / executor / administrator to take oath of an executor/administrator (set out in
Form 92 First Schedule) within fifteen days declaration.

Must then file in court an inventory of deceased’s property & effects with a valuation of
the property within a period of 1 month from the date of taking the oath.

Then court must grant Letters of Probate / LA upon an order of an issue of the certificate
or where it will be forthwith issued.

Power to recall / revoke / cancel s. 537


DC has power to recall / revoke / cancel a certificate heirship / administration.
Application for recall / revoke / cancel must be made by way of petition under summary
procedure.
Application must not be entertained unless P shows in petition that P has an interest in the
estate of deceased.

Rectification of errors s. 548


Errors in names / descriptions / time / place of deceased’s death / the
purpose in a limited grant - can be rectified by court & probate, LA, certificates
of heirship granted may be altered and amended accordingly.

When is a fresh grant allowed s. 547


If a sole executor / sole surviving executor to whom probate dies leaving a part
of the deceased’s property unadministered - a fresh administration can be
made in respect of the property left unadministered according to prescribed
rules on granting the first grant.

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Compensation of executors & administrators s. 549

Compensation can be allowed to executors & administrators by way of commission & on


property not sold but retained by the heirs
- On property sold by executor / administrator at a rate of less than 3% & on cash
found in the estate and on property specially bequeathed at such rate of less than
½ %.

- Court must take into consideration


* circumstances of each particular case
* trouble incurred by such executors / administrators

- A sum larger than Rs. 5000 cannot be allowed as compensation


(unless it is apparent to the court that unusual trouble has fallen a upon executor /
administrator as to entitle him to receive further remuneration)

Executor / administrator failing to administer within 1 year is


liable for interest

s. 552
Executor / administrator must pay interest for all sums retained in his hands after 1 year.
- Unless executor / administrator can show sufficient cause
- Interest must be paid of his own sums
- Must pay to creditors / legatees / heirs who are entitled to their respective
shares

Filing accounts s. 551

An executor administrator must file a true & final account of his executorship /
administration in DC on/before the expiration of 12 months from date on which probate /
administration was issued to him / within such further time as the court may allow.
All receipts & vouchers must be attached.
Can pay into court any money which received in the course of the administration to
which a minor be entitled
If parties consent - filing of account & payment can be dispensed with on payment of
stamp duty that would have been otherwise payable on the filing of such account, and the
proceedings must be closed.

38
Matrimonial Action
s. 596
In an action for
a. Divorce a Vinculo matrimonii
b. Separation a Mensa et Thoro
c. Declaration of nullity
Pleadings will be by way of Plaint and answer. Regular procedure

s.19(1) GMO - Grounds for Divorce


(i) Adultery
(ii) Malicious desertion
(iii) Incurable impotency

s. 597 - Spouse can present a plaint to DC within the jurisdiction which he resides.
- Plaint must pray that his marriage be dissolved on any ground for which a
ground may be dissolved under the law

• Provisions of conciliations board does not apply to matrimonial


actions (NO need to go to mediations board if a monetary claim of
under 25000 is involved.
• DC has jurisdiction to dissolve marriage even when it was contracted
outside SL ; Asokan v Asokan

Application for Separation a Mensa et Thoro

s. 608(1)
- separation may be granted on any ground recognised by any law. Court must
be satisfied of the truth of the statements made in the plaint any that there is
no legal ground why the application should not be granted.
- If court is satisfied can decree separation.

s. 608(2)
- Two years after decree of separation / 7 years after a mensa et thoro either
spouse can apply to Dc by way of summary procedure for a decree dissolution
of marriage.
- If DC is satisfied that spouses haven’t been fukin since (not resumed
cohabitation) enter a decree of dissolution of marriage.
- Tenakoon v Tenakoon – P instituted action by way of summary procedure
under s. 608(2) He had been separated from wife for 7 years. Held common

39
law of divorce is based on the guilt principle and not irretrievable breakdown
of marriage.
• Separration for 7 years alone is not a ground for divorce
• It is only the innocent spouse who could b identified as either
spouse.

- Keerthirathna v Karunawathie
A decree for judicial separation may be granted on the grounds of
malicious desertion.

s. 598 – Co defendant in an action based on adultery


(i) a plaint presented by husband P must make the alleged adulterer a co-
defendant unless he is excused by court. Upon P ‘s application to court
that
a. D is leading a life of a prostitute and P does not know the
person with whom adultery was committed.
b. Name of adulterer is not known although efforts were
made.
c. Adulterer is dead.

• Plaint can include a claim for pecuniary


damages against co-D

 Where P desires to be excused from making


the adulterer a co defendant Plaint must contain the prayer that P be excused
from making adulterer a Co-D and stating facts which upon which his
application is founded.

s. 612 – where P(husband) presents a plaint in which adulterer is made co-D and
adultery is established court can order co-d to pay the whole / part of the costs
of the proceedings in addition to damages.

BUTT
If (a) At the time adultery was committed D was living apart from her husband
and leading the life of a prostitute
(b) If at the time of committing adultery co defendant did not have reason to
believe that D is a married woman
Co-D cannot be ordered to pay P’s costs or damages.

s.614 – Alimony pendente lite


- Wife can present a petition for alimony pending the action
- Petition for alimony will be tried by way of summary procedure
- Husband will be made respondant
- If court is satisfied that facts stated in petition are true – can order H to pay
alimony pending action as court thinks just.

40
- Alimony pending action cannot be less than 1/5th of husbands net income for
the 3 years immediately preceeding the order.
- Order to pay alimony will be in force until a decree for dissolution of marriage
/ nullity is made absolute.
- If one of the spouses do not have enough money to pay for the litigation – at
any stage of the action court can order the spouse with sufficient income to
pay the other spouse a sum of money on account of costs( which court thinks
is reasonable.

s. 615 – When pronouncing decree of divorce/ separation court


can order a spouse to
a. Make such conveyance / settlement as court thinks reasonable.
b. Pay a gross sum of money
c. Pay sums of money annually/ monthly as court thinks reasonable
d. Secure the payment of gross sum/ annual/ monthly payment by the
hypothecation of immovable property/ by execution of a bond/ by
purchase of a policy of annuity in an insurance company approved by
court
For the benefit of the other spouse/ children of the marriage.

s. 604 - In the first instance a decree for dissolution of marriage is a decree nisi.
Decree will not be made absolute until 3 months after the announcement of the
decree nisi (or such longer period as court prescribes)

s.605 after decree nisi is made and at the end of the period there is no reason not
to make it absolute – decree nisi will be made absolute
* If decree nisi is entered exparte 3 months/ prescribed period begins to run from
the date of service of decree on the defaulting party(party not attending court)

s. 607 Actions of Nullity


A spouse can present a plaint to DC under the jurisdiction, which he resides
praying that his marriage be declared null and void.
Decree can be made on any ground which makes renders the contract of marriage
void in Law.

41
Actions against the State
s. 461- No action can be instituted against
(a) AG as representing the state
(b) A Minister / Deputy Minister
(c) Public Officer

In respect of an act done by him in his official capacity until one month’s notice
has been given in writing to him stating
(i) the cause of action
(ii) name & abode of person intending to file action
(iii) relief which is claimed

• Plaint in the action must state that the notice has been delivered /
left at office of AG / Minister / Police Officer

Appusingho Appu v. Don Aron – A public officer who does an illegal / mala fide act in
the pretended exercise of statutory powers is not acting under the statute. So s. 461
notice need not be given.
Abaran Appu v. Banda – P is entitled to sue D without 461 notice since D (Arachchi) had
maliciously brought a false charge against P.
BUT
De Silva v. Illangakoon – Where a public servant is sued for defamation alleging malice
P still has a duty to give D the s. 461 notice.

Silva v. Jonklaas – s. 461 notice must be given on an action based on contract

Pelis Singho v. AG – Notice contained an error as to value of the claim.


Held - A slight variation in the quantum of relief claimed does not render the notice
invalid.

De Silva v. Illangakoon – s. 461 Notice must be strictly observed & notice must be as
prescribed in the Schedule. Sending a letter of demand to D does not satisfy s. 461
requirements.
BUT
Weerasinghe v. De Silva (1994) – Not necessary to state in notice that it is under s. 461.
Any notice that complies with form required by s .461 is adequate.

Herath v. Panditha – Notice need not be given to public officer where he does not act in
official capacity. (D acted as Sec. of a body which received money from Gov. & carried
out Gov. policies but was independent & non-governmental)

42
Object of s. 461 notice
To afford an opportunity to D to consider his position in regard to the claim & come to
terms of settlement / settle the claim in full without taking the risk & trouble of litigation..
.; Weerasinghe v. De Silva
Insolvent Testamentary Estates
What is an insolvent estate? s. 554F
The estate of a deceased person will be deemed to be insolvent-

(i) If upon the valuation of assets and liabilities as at the date of his death or any
subsequent time, it appears that the assets are/will be insufficient to Pay the funeral,
testamentary and administration expenses, and the claims of creditors or

(ii) If owing to execution proceedings taken against the deceased or his estate
or the difficulty of realizing any of the assets of the estate, or because of
disputed claims, or for any other sufficient reason, the estate should be
administered as an insolvent estate for the benefit of all parties interested.

Application to have estate declared insolvent

s. 554G
(1) Where an estate is deemed insolvent at the time of application for probate /
letters of administration is made, the petitioner shall, in addition to the
averments required to obtain probate / letters, shall include the following:

(a) the names of all persons who have claims against the estate(to the best
of Ps knowledge)
(b) the last known place of abode or business of such persons
(c) the sums claimed by each of them liquidated / un-liquidated
(d) whether or not the sums claimed or any part thereof are admitted by
the P.

(2) In the petition so filed, those who should be respondents shall be made
respondents.

s. 554H

(1) Where after grant of probate / letters, the executor or administrator must
file a petition by way of summary procedure for an adjudication that the estate
shall be deemed to be insolvent,

(2) The persons named in the original petition for grant of probate / letters shall be made
respondents.

43
44
Order NISI
554K
Upon the court being satisfied that the facts stated in the petition are prima facie
established, it shall enter an insolvency order nisi declaring the estate to be insolvent in
the form 93A – 1st Schedule.

554L
A copy of the order nisi shall be served on each of the respondents and notice in the form
of 93B - 1st Schedule shall be advertised at the expense of the P not later than 1 month
prior to the date fixed in such order for the determination of the matter.

554M
Any person interested in the estate may appear on the day fixed and may show cause or
support the application, and the court may after due inquiry, either dismiss the petition or
make the order nisi absolute.

554N
The order absolute shall be in the form 93C – 1st Schedule, and shall be advertised as
done for the order nisi or as court thinks fit.

554P
From the date of the order nisi all actions in respect of admitted claims and all execution
proceedings against the estate of the deceased shall be stayed, subject to the right of any
secured creditor to proceed to realize his security upon conditions set out by court, having
regard to the Insolvency Ordinance.

How the insolvent estate is to be distributed


554R
Where an order nisi has been made, the estate shall be distributed as follows:
(a) The funeral, testamentary and administration expenses shall be 1st paid off
the available assets;

(b) subject to the law of insolvency the rights of secured and unsecured
creditors as to the debts and liabilities provable, the valuation of annuities
and future and contingent liabilities, and the priorities of debts and
liabilities.

* Executor / administrator of an insolvent estate has the same powers as an assignee


under the insolvency ord.

554T
Appeals from an order nisi or absolute, shall not stay proceedings in administration,
unless the CA makes a contrary order.

45
Foreign Probates
Competent court means
a) DC of Colombo
b) DC within the local limits of whose jurisdiction;
1) The estate or any part of the estate in SL is situate
2) The executor / administrator / AAL of the estate of the deceased which is
being administered outside SL, is resident.

Sealing of foreign probates or letters


554U
Where a Court of Probate or other authority in a foreign country has either before or after
15 DEC 1977, granted probate / letters of administration in respect of the estate of a
deceased person, and on them being produced and a copy deposited with a competent
court, and sealed with the seal of that court they shall be of like force and effect and have
the same operation in SL as if granted by that court.

Conditions to be fulfilled before sealing


554V
(a) That the testamentary duty has been paid or secured in respect of so much, if
any, of the estate as is liable to the testamentary duty in SL and

(b) In the case of letters of administration, that security has been given in a sum
sufficient to cover the property in Sri Lanka to which the letters relate to:

and may require evidence, if necessary as to the domicile of the deceased.

Liabilities of administrators and Executors


The sealing of probate or letters shall not affect the liabilities:
a) To file an inventory of the property situate in SL & valuation as required by s.539

b) To file before 12 months of sealing, true and final accounts


verified by oath / affirmation with all receipts as required by s.531
c) To be compelled to make a judicial settlement of his account as
executor / administrator with respect to the property situated in SL.

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Aiding / supervising / controlling administrators and executors
Proceedings to discover property withheld

712
(1) An executor / administrator can present a petition to DC if he has knowledge /
information / belief that money / movable property of deceased which ought to be
delivered to him and needs to be included in his inventory an valuation has been
withheld from him so that they cannot be inventoried and valued. Court can grant
an inquiry regarding petition and the person complained of can be required to
attend court and be examined.

(2) Petition to be accompanied by affidavits or other evidence.

(3) If the court is satisfied that there are reasonable grounds for inquiry, it shall issue a
citation, which may be made returnable forthwith, or at such future time as the court
shall direct.

713
(1) An order signed by the Judge, will be annexed or endorsed on the citation
requiring the person cited to attend personally at the time and place therein specified.

(2) The citation and order must be personally served - it is to be accompanied with
payment or tender of the sum required by law to be paid to a witness subpoenaed to
attend a trial in a civil court.( for service to be effectual)

(3) Failure to attend will be punished as contempt of court.

How to compel an executor to return inventory and accounts

718
(1) A creditor, or any person interested, may present to court in the action in which grant
of probate or letters issued, proof by affidavit that an executor / administrator has
failed to file in court the inventory and valuation, and account required by law within
the time prescribed.

(2) If court is satisfied that the executor / administrator is in default, it shall make an
order requiring him to file inventory and valuation or accounts, or if what was filed
was insufficient, a further inventory or accounts; or in default thereof to show cause
why he should not be attached.

(3) Upon return of the order, if the delinquent has not filed as ordered, the court shall
issue a warrant of attachment against him, and shall deal with him as for a contempt
of court.

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The accounting and settlement of the estate

Intermediate Account

723
An intermediate account may be filed at any time voluntarily by an
executor/administrator in the court from which probate/letters was issued along with
vouchers in support of the same.

724
Court may upon the application of a creditor/interested party or of its own motion, make
an order requiring the filing of an Intermediate account.

Procedure when accounts have not been filed as according to s. 551

724A
(1) An interested person may present to the court an affidavit that final accounts have
not been filed according to s.553.

(2) The court shall thereupon, or of its own motion, if satisfied that the
executor/administrator is in default, make an order requiring him to file such final
account on a specified date; and in default to show cause why he should not be
attached.

(3) If on the specified day the final account has not been filed, the court may issue a
warrant of attachment and deal with him for contempt.

(4) Delinquent jailed will be discharged upon his filing a final account.

(5) Such account filed shall be in accordance with the specimen form No. 118A in the
1st Schedule setting out:

(a) assets and liabilities of the deceased valued as in the inventory;


(b) receipts and disbursements and transactions of property made by the
accounting party up to the date to which his account is made up;
(c) assets and liabilities as at the date to which the account is made up,

(6) Account filed to be appended an affidavit to the effect that the account contains,
according to the best of his knowledge and belief, a full and true statement of
(a) all assets and liabilities
(b) all his receipts and disbursements
(c) all money and other property belonging to the estate which have come to his
hands, or have been received by any other person by his order or authority for
his use

48
(d) that he does not know of any error/omission in the account to the prejudice of
any creditor/person interested in, the estate.

(7) Court may reject an account which is not in accordance with the provisions of this
section and require the filing of a sufficient account within a specified period.

Judicial settlement of account


725
Either upon the application of a party / of its own motion, the court may compel a judicial
settlement of the account of an executor/administrator :-
(a) where one year has expired since grant of probate/administration;
(b) where grant is revoked, or his powers ceased for some other reason;
(c) where he has sold or disposed of any immovable property of the testator, or
devisable interest therein, or the rents, profits, or proceeds, pursuant to a
power in the will, where one year has elapsed since grant of probate.

Effect of a judicial settlement

739
It is conclusive evidence against all parties who were duly cited or appeared, and all
persons deriving title from any of them at any time, of the following facts, and no
others :-

(a) that the items allowed to the accounting party for money paid to creditors,
legatees, heirs, and next of kin, for necessary expenses, and for his services
are correct ;

(b) that the accounting party has been charged with all the interest for money
received by him and embraced in the account, for which he was legally
accountable ;

(c) that the money charged to the accounting party, as collected, is all that was
collectible at the time of the settlement on the debts;

(d) that the allowances made to the accounting party for the decrease, and the charges
against him for the increase, in the value of property were correctly made.

When specific property may be delivered

49
741
(1) The decree may direct
- the delivery of unsold property, movable or immovable, or
- the assignment of an uncollected demand, or any other movable property,
to a party or parties entitled to payment or distribution in lieu of the money value
of the property :-

(a) where all interested parties, who have appeared, manifest their consent by
a writing filed in court ;
(b) where it appears that a sale for the purpose of payment or distribution
would cause a loss.

(2) Value must be ascertained, if the consent does not fix it, by an appraisement under
oath made by one or more persons appointed by the court for the purpose.

Unofficial Executor

There are no written provisions of law relating to an unofficial executor. He is a person


who on the death of a person comes forward with the funeral expenses etc. This person
has not been appointed by the deceased by will or otherwise but comes forward on his
own wish. He cannot require the heirs to pay him a commission or a payment for the
services rendered by him. He can only request a reimbursement of the funeral expenses.

Plaint under 703 on liquid Claim

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In the District court of ……………..

……………..
Plaintiff

Vs

…………….
Defendant

On this ….day of …... the plaint of the plaintiff appearing by……, states as follows:

1. The defendant resides and the cause of action herein set out arose at ……… within the
jurisdiction of this court
2. The plaintiff above named is carrying on business at…….
3. On or about ……………, the plaintiff above named sold and delivered items to the value
of …………, at the request of the defendant, from the said business.
4. The plaintiff states that the defendant above named issued to the plaintiffs cheque bearing
number ……….. dated……….drawn on the Galle branch of Sampath bank Ltd, by the
defendant for the said sum of …………….., which cheque , when presented for payment,
was returned dishonoured with the endorsement “refer to drawer”
5. The original of the said cheque is produced herewith marked x 1 and pleaded as part and
parcel of this plaint.
6. The plaintiff states that due notice of dishonor was given to the defendant by the
plaintiffs.
7. There is justly and truly due to the plaintiff from the defendant the sum of ………..
8. Thus a cause of action has accrued to the plaintiff to sue the defendants for the recovery
of the said sum of …………….together with legal interest thereon

Where fore the plaintiff prays:

a.) For leave of court to proceed under chapter 53 of the civil procedure code.
b.) For judgment against the defendant in a sum of rupees………….. together with
legal interest thereon.
c.) For costs
d.) For such other and further relief as to this court shall seem meet.

Attorney at law for the plaintiff

Documents appended:

1. Appointment
2. affidavit of the plaintiff
3. Cheque bearing number …….
4. Bill of cost

Attorney at law for the plaintiff

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