Jayawardene V. The Baptist Missionary Society et Al.,

Present: Porter and Schneider JJ. 1923.

JAYAWARDENE v. THE BAPTIST MISSIONARY SOCIETY et al.

393- D. C. Chilaw 6,777.

Action against the congregation of a church-Order under section 16 of the Civil Procedure Code-Representation order-Decree as to costs-' How jar binding on members of congregation who were not parties to action ?

The effect of a representation order under section 16 of the Civil Procedure Code is to bind persons who are not parties, but who are represented as having a common interest, only in so far as the property which is the subject-matter of the action is concerned, but is ineffectual to render them liable in costs or damages.

IN action No. 5,502, D. C. Chilaw, the appellant corporation sued " the members of the congregation of the Baptist Church at Madampe " represented under section 16 of the Civil Procedure Code by certain seven persons in respect of the land on which the chapel, used by the congregation for worship, stands, alleging that the appellants were the lawful owners thereof, and that the members of congregation denied their right and refused to quit and restore possession on notice, and kept wrongful possession to the damage of the appellants.

By the decree in that action the appellants got judgment against the congregation for the premises and for damages and costs.

Under writ issued against the congregation in execution of the decree for damages and costs, the land in question in this case was seized, whereupon the plaintiff-respondent, who is a married woman, being the wife of the second defendant, preferred a claim which was disallowed.

The plaintiff thereupon instituted this action within fourteen days from the date of the said order disallowing the claim, praying that the said land be declared not liable to be sold in execution as being her property, and that it be released from seizure.

The District Judge gave judgment for plain tiff-respondent as prayed for, holding that though she is a member of the congregation, and as such bound by the decree in so far as it relates to the land and premises mentioned therein, she is not liable to pay the damages and costs awarded in the decree. The defendant appealed.

Samarawickreme (with him M. Fonseka), for first defendant, appellant.

H. V. Perera, for plaintiff, respondent.

Cur. adv. vult.

 

June 15, 1923. SCHNEIDER J.-

In action No. 5,502 of the District Court of Chilaw, the first defendant society as plaintiff obtained a decree against " the members of the congregation of the Baptist Church in Madampe " represented by the second defendant in this action, one Jane Amerasekera and five others, under a representation order duly made under the provisions of section 16 of the Civil Procedure Code.

The decree declared the first defendant society entitled to a certain allotment of land on which the Baptist Chapel, the Manse, and schoolroom stand, and directed the " defendants " to be ejected therefrom, and the first defendant society to be put and placed in possession thereof. It also directed the " defendants " jointly and severally to pay damages and costs. In execution of the portion of the decree for damages and costs, the land in dispute in this action was seized and was claimed, but unsuccessfully by the plaintiff who is the respondent in this action. She has brought this action under section 247, asserting that she is not bound by the portion of the decree in action No. 5,502 awarding damages and costs, as she was not a party in that action- On the facts the District Judge found that the plaintiff, respondent, was a member of the congregation of the Baptist Church in question, but on the law he upheld her contention that she was not bound by the decree. Accordingly, he gave judgment for the plaintiff, and the first defendant society has appealed.

Mr. Samarawickreme, who appeared for the appellant, confined his appeal to the ques

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