Ramanaden V. Fernando Et Al.,

Present : Bertram C.J. and De Sampayo J.

RAMANADEN v. FERNANDO et al.

94-D. C. Negombo, 7,930.

Civil Procedure Code, s. 339 - Assignment of decree - The assignee becoming heir of one of the judgment-debtors after assignment- Application by assignee to be substituted plaintiff-Discretion of Court-Delay in making application-Prescription.

The second proviso to section 339 of the Civil Procedure Code, which enacts that where a decree against several persons has been transferred to one of them it shall not be executed against the others, does not apply to the case of an assignee who becomes an heir of one of the debtors after the assignment.

The Court has a discretion as to the substitution of a plaintiff; where there was considerable delay the Court referred the assignee to a separate action.

IN this action the original plaintiff sued on a mortgage bond executed by Madalena Fernando and Romel Gabriel Per era. The latter having died, the administratrix of this estate, with Madalena, was sued in the above case. On March 9, 1910, formal mortgage decree was entered against the defendants.

On October 15, 1910, the original plaintiff executed deed of assignment bearing No. 29,584, purporting to assign the said mortgage decree to Maria Perera, the daughter of Madalena. The said Maria Perera executed deed No. 33,873 dated June 15,1916, formally conveying her interest in the decree to the respondent.

Madalena died intestate on November 7, 1916; leaving as heirs Maria Perera, the husband, and five children of a deceased daughter, Veronica.

The respondent to this appeal, who is one of the children of Veronica (as such being an heir of Madalena), applied under section 339 of the Civil Procedure Code to be substituted in room of the original plaintiff, and also prayed for authority to execute the said decree. To this application all the heirs of Madalena were made respondents, supported by the allegation that heirs were in possession of the lands hypothecated by the mortgage bond.

The respondent originally applied on May 1, 1919, but the application was dismissed on the ground that the heirs of the original plaintiff, who had died since the decree was entered, were not made parties to the application.

The respondent renewed his application on December 15, 1919, making the heirs of the original plaintiff and the heirs of Madalena (except applicant himself) respondents to ,the application.

The first appellant, as administratrix of the estate of Gabriel Perera, and all the appellants who are the heirs of Gabriel Perera and Madalena Fernando, contested application.

They contended that the mortgage debt was paid by Madalena, who thereafter fraudulently procured the execution of the deed of assignment in favour of their daughter Maria Perera ; that the deed of assignment executed in favour of the applicant-respondent was obtained without consideration; and that the applicant-respondent had no status to maintain the application under section 339, Civil Procedure Code, on the ground that he was an heir of Madalena, one of the co-debtors under the mortgage decree. They maintained that the assignee should be referred to a separate action for contribution.

The learned District Judge disallowed the objection under section 339, and fixed a date for the inquiry into the question of payment and satisfaction of the decree as alleged by the appellants by the following order:-

The petitioner in this case is the assignee of a decree against the defendants, one of whom is deceased. It is admitted that the petitioner is an heir of the deceased defendant, and the first point for decision is, whether in this case he can execute the decree. Proviso 2 of section 339, Civil Procedure Code, enacts that where a decree against several persons has been transferred to one of them, it shall not be executed against the others. Now, in the present case, the petitioner, who is t

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