YASAPALA AND 5 OTHERS

VS

GUNATHILAKE AND TWO OTHERS

SUPREME COURT
BUWANEKA ALUWIHARE P. C, J.
UPALYABEYRATHNE J.
ANIL GOONERATNE J.
SC/APPEAL/207/2014
SC/HCCA/LA/426/2014
NWP/ HCCA/KURU/17/20/2013(REV)
DC KURUNEGALA No. 7316/T
18.07.2016.

Right of Appeal- Section 722 Civil Procedure Code- Reasons for Delay- Delay in Filing Revision Application- Letters of Administration- Inventory- Recall Letters of Administration- Final Account- Section 724 A of CPC-Section 712 of CPC Chapter LX Civil Procedure Code- Exceptional Circumstances- Rehearing -Citations.

District Court granted letters of Administration to J.M. Appuhamy Petitioner-Respondent- to administer the estate of deceased Jayasundara M. Ukkubanda. Inventory was disputed, and 6th Respondent- Petitioner-Respondent made an application to exclude "Dharshana Textiles" from the inventory claiming sole ownership of the business. The Respondent-Respondent- Respondent raised objection on the basis that the deceased was the owner of half a share of the business. Inquiry was held and District Court held that deceased was owner of half a of the business and profits to be brought into the case. Issues of 2nd and 5th Appellants and 7th Respondent-Respondent- Respondent were answered against their interests by the learned District Judge. Judgment was not canvassed by an appeal.

On the application made by the administrator due to his old age court recalled the grant of Administration and with consent of parties granted fresh letters of Administration to 6th Respondent and he filed statement of objections. After inquiry District Court made order dated 10.10.2011 requiring the 6th Respondent to bring the assets mentioned in certain items of the final account to be brought to the credit of the case. Findings of the learned District Judge were not canvassed.

5th Appellant took up the position that money in the final account is not part of the estate, but it is income generated after death. District Judge made order on same on 08.01.2013, but the Additional District Judge dealt with the above claim and made another order on 28.04.2005 and refused by the said judgment. Parties did not exercise the right of appeal against the order of 08.01.2013.

The 6th Respondent after 6 months filed a revision application in the Provincial High Court to revise the District Court order of 08.01.2013. High Court refused to revise the above order.

HELD:

1. The High Court of Civil Appeal was of the view that irrespective of the said preliminary objection the Respondent's application in revision should be entertained due to the contradictory nature of the orders made in the case and as a result by order dated 08.01.2013 the Petitioner has been placed in a dilemma whether he should act in accordance with the judgment dated 28.04.2005 or subsequent order dated 08.01.2013.

Held further:

2. It is clear from the subsequent said order of the learned Additional District Judge that the order dated 08.01.2013 has been made without holding a proper inquiry. The 6th Respondent has made the said application seeking the Appellants to be cited to attend an inquiry and to examine the income derived from the said final account dated 16.01.2009.

3. It is well settled law that upon the attendance of a person on obedience to such citation the trial judge should follow the procedure laid down in Section 714 of the Code in order to reach the correct conclusion upon the matter before him.

4. In the instant case the learned Additional District Judge has failed to follow the mandatory provisions contained in Section 714 of the Code prior to making the order dated 08.01.2013, these are exceptional circumstances irrespective of the delay in making the application in

revision for an appropriate appellate court to exercise discretion and to grant relief by way of revision.

Cases referred to:-

1 Atukorale vs. Samynathan 41 NLR 165
2 Silva Vs. Silva 44 NLR 494
3 Sinnatha