JUDGMENTBY: HUGGARD, CJ, THORNE, J, GERAHTY, J

HUGGARD, CJ This was an application by Muthia Pillay, claiming as a creditor of the estate of Tan Kong Liang deceased, for an order that the Receiver appointed in this action by way of equitable execution be ordered to pay to the Applicant the amount of the Judgment and costs (together with interest) obtained by him against the Defendant in Suit No. 709 of 1921.

The application came before Mr. Justice Mills who made no order on the application except as to costs.

From that decision the applicant has appealed.

The success or failure of this appeal depends on whether the Judgment obtained by the Appellant in 1921 affected the estate of Tan Kong Liang deceased or whether it was merely a personal Judgment against the Defendant Tan Kah Chiat.

The facts are these: In Suit No. 709 of 1921 the present Appellant sued the Defendant for balance of principal and interest due on a promissory note made and executed by the Defendant. The Writ was directed to Tan Kah Chiat, administrator of the estate and effects of Tan Kong Liang deceased and it bore the endorsement--"The defendant is sued as the administrator of the estate and effects of Tan Kong Liang deceased."

The Defendant failed to enter an appearance and it seems clear that, this being so, he must be deemed to have admitted assets and that the Plaintiff (the present Appellant) thus became entitled to enter Judgment either against the Defendant personally or against the Defendant in his representative capacity.

I have no doubt that it was the intention of the Plaintiff and his solicitors to enter Judgment against the Defendant in his representative capacity as they were entitled to do, but the question is did they in fact do so?

Where it is desired to enter Judgment against an executor or administrator in his representative capacity a particular form should be adopted. This form is to be found in the Annual Practice and is in fact the form into which the Judgment in the present case was amended in 1931 on the ex parte application of the present Appellant. Judgment was not, however, originally entered in that form in 1921 but as follows:--

"The Defendant ... not having appeared to Writ of Summons herein, final

Judgment is hereby entered for the Plaintiff against the said Defendant

... for $ 5,300.03 and $ 61.08 for costs."

In my view this is nothing more than a personal Judgment against the Defendant.

Mr. Storr for the Appellant stresses the use of the word "said" in the Judgment as entered, and he argues that the expression "the said Defendant" can only mean "the Defendant as administrator of the estate and effects of Tan Kong Liang deceased" which is how the Defendant is described in the title. I cannot accept this view. The words "the said Defendant" appear in Form No. 51 in Schedule A to the Civil Procedure Code, which is the ordinary form of Final Judgment in default of appearance. In my opinion the word "said" merely refers to the Defendant as named in the Judgment and has no special significance.

The form of Judgment taken out in 1921 was, on the ex parte application of the present Appellant, amended in 1931 so as to make it a Judgment binding on the estate of the deceased Tan Kong Liang. This order was made under the Slip Order section--section 309 of the Civil Procedure Code. In my opinion this amendment was made without jurisdiction and must be disregarded.

As, in my view, the Judgment obtained by the Appellant in 1921 was merely a personal Judgment against the Defendant and did not entitle the Judgment Creditor to obtain satisfaction out of the assets of the deceased, it follows that the decision of the learned Judge in the Court below was correct and I would dismiss this appeal with costs.

THORNE, J I agree and have nothing to add.

GERAHTY, J I also agree and have nothing to add.

Appeal dismissed with costs.

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