JUDGMENT

R. Gurusinghe, J.

The petitioner filed this Restitutio-in-Integrum application against the plaintiff-respondent Bank (hereinafter referred to as the Bank), seeking the relief prayed for in the petition. The respondent bank instituted an action against the petitioner’s late husband as the defendant to recover monies due upon a mortgage bond. The petitioner’s husband and the Bank agreed to settle the action on 22 February 2018. The written terms of the settlement motion dated 22-02-2018, signed by the registered Attorneys for the bank and the petitioners’ husband and his registered Attorney, were tendered to the court. A decree was entered in accordance with the terms of the settlement.

On 24-05-2019, the petitioner’s husband passed away. The bank made an application under Section 26 of the Mortgage Bond Act to the District Court on 11-12-2020, and that application was supported in open court on 14-12- 2020. The Bank produced the death certificate of the deceased defendant and the marriage certificate of the petitioner and the deceased defendant. Accordingly, the District Court issued notice on the petitioner. The Fiscal of the Court reported to the court that the notice had been served on the petitioner. The court appointed the petitioner as the legal representative of the deceased defendant.

Thereafter, the Bank submitted an application to execute the writ in accordance with the settlement decree. The court allowed that application.

Petitioner in this application states that although the notices were issued on the petitioner, the petitioner was not duly appointed as the legal representative of the deceased-defendant. Further, the petitioner states that she is not the only heir to the deceased-defendant. The deceased-defendant and the petitioner have four children, and those children should have been made parties. Petitioner states that she did not receive the notice of the application made by the Bank, as she had left the premises at No. 2 Gangarama Cross Road, Magalle, Galle, prior to the dispatch of such notice.

Section 26 of the Mortgage Act No. 6 of 1949, as amended by Act No. 24 of 1969, reads as follows:

26(1) Where any mortgagor dies before the institution of a hypothecary action in respect of the mortgaged land, or any mortgagor or any person who is or becomes a party to a hypothecary action dies after the institution of the action, and grant of probate of the will or issue of letters of administration to the estate of the deceased has not been made, the court in which the action is to be or has been instituted may in its discretion, after the service of notice on such persons, if any, and after such inquiry as the court may consider necessary, make order appointing a person to represent the estate of the deceased for the purpose of the hypothecary action, and such person may be made or added as a party to the action :

Provided, however, that such order may be made only if -

(a) the value of the mortgaged property does not exceed twenty thousand rupees; or

(b) a period of six months has elapsed after the date of the death of the deceased; or

(c) the court is satisfied that delay in the institution of the action would render the action not maintainable by reason of the provisions of the Prescription Ordinance.

(2) In making any appointment under subsection (1) the court shall appoint as representative a person who, after summary inquiry, appears to the court to be the person to whom probate of the will or letters of administration to the estate of the deceased would ordinarily be issued:

Provided, however, that in the event of a dispute between persons claiming to be entitled to be so appointed, the court shall make such an appointment (whether of one of those persons or of any other person) as would in the opinion of the court be in the interests of the estate of the deceased.

The petitioner is the wife of the deceased defendant and the person to who probate of the will or letters of administration to the estate of the dece