CLARA FERNANDO v. ROSA FERNANDO

Present : Sir C. P. Layard, Chief Justice, and Mr. Justice Grenier.

CLARA FERNANDO v. ROSA FERNANDO.

D. C., Negombo, 603.

Application for discovery of property by an administrator-Procedure- Citation-Security-Civil Procedure Code, chapter LIV.

The procedure to be adopted in an application by an administrator for discovery of property belonging to the intestate's estate under chapter LIV. of the Civil Procedure Code indicated.

APPEAL from an order of the District Judge directing the appellants to deliver certain property to the respondent as administratrix of the estate of her deceased husband.

H. J. C. Pereira and H. A. Jayewardene, for appellant.

Dornhorst, K. C, and E. W. Jayewardene, for respondent.

Cur. adv. vult.

12th August, 1903. LAYARD C. J.-

In this case the Court seems to have misunderstood the procedure laid down in chapter LIV. of the Civil Procedure Code. The respondent is the administratrix of the intestate husband's estate. The appellants are persons in whose possession the administratrix alleges was certain property which had belonged to the intestate and which the respondent claims as his legal personal representative. She therefore presented a petition under section 712 of the Civil Procedure Code, and cited the appellants to appear before the court. The first mistake appears to have been made in the citation issued. The object to be authorized by issue of a citation under section 712 is the discovery of property, so that section explicitly provides for a citation to attend the inquiry, and that the person cited should be noticed that he would be examined for the purpose of such discovery. The citation issued in this case is silent as to the personal attendance of the appellants, and thereby calls upon them to appear to show cause why they should not deliver certain articles to the administratrix. Sections 712 and 713 show that the respondents should have been simply cited as witnesses, for section 713 provides that persons so cited need not take notice of the citation unless it is accompanied with payment and tender of the sum required by law to be paid or tendered to a witness subpoenaed to attend a trial in a civil court. To assist the applicant for a citation and the Court that issues it, the Code actually provides a form of citation. (Form No. 1ll in schedule A.) That form explicitly calls upon the person cited to appear "personally " and to answer in court to the application of the person applying for the citation. I cannot

imagine why, when a form is expressly provided which is in accordance with the express terms of an enactment, persons should go out of their way to draft a form inconsistent with the terms of the enactment. The appellants, I gather from the record, did in pursuance of the citation personally attend the court. The court, however, instead of recording their appearance, records that their counsel and proctor appeared and. proceeded to deal with the case as if it was an ordinary trial. The appellant's counsel took some frivolous objection to the procedure, which was properly over-ruled. But neither appellant's counsel nor respondent's counsel appears to have in any way assisted the judge by inviting his attention to the proper procedure to be adopted under chapter LIV. of the Code. Now, section 714 clearly lays down that upon the attendance of a person in obedience to citation issued at the request of an administrator under section 712, the first thing to be done is to examine such person fully and at large respecting the property of the intestate, or of which the intestate was in possession at the time of, or within two years preceding, his death. The proceedings, however, in this case began by the evidence of the administratrix being recorded without any demand on the part of appellant's or respondent's counsel. When a procedure is clearly and explicitly laid down as is in section 712, I can

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