Present: Schneider and Dalton JJ.

FERNANDO et al. v. MENDIS et al.

102-D. G. Negombo, 14,231.

    Decree, assignment of-Before decree nisi is made absolute-Application by assignee after final decree to have himself substituted-Civil Procedure Code, 8. 339.

When, after decree nisi had been entered in an action, the plaintiff assigned the decree, and the assignee applied to have himself substituted as plaintiff after the decree had been-made absolute.

Held, that the assignment was good, and that the assignee was entitled to make the application under section 339 of the Civil Procedure Code.

THE plaintiff in this action on June 10, 1920, obtained a decree nisi against Singha Fernando and his wife, Welpina Silva, declaring certain interests in land bound and executable. Thereafter on August 5, 1920, he assigned the decree in the action to one Kumarappa Chetty. Decree absolute was, however, entered up only on August 16, 1920. Kumarappa Chetty's interests by various assignments devolved on the first and second respondents who applied under section 339 of the Civil Procedure Code to be substituted in place of the plaintiff.

The application was opposed by the first and second appellants who are wife and husband. The first appellant is a transferee of Welpina's interests in the lands, the subject-matter of the action, and the second appellant is executor of the last will of Singha Fernando.

The application for substitution was allowed by the learned District Judge, and the appeal is from that order.

H.V. Perera for first and second defendants, appellants.

Drieberg, K.C., with Croos Da Brera, for defendant, respondent.

Ameresekere, for petitioner, respondent.

August 28, 1925. SCHNEIDER J.-

On June 10, 1920, the plaintiff in this action obtained a decree nisi against Singha Fernando and his wife, Welpina Silva, declaring certain interests in five allotments of land bound and executable.

On August 16, 1920, this decree was made absolute.

On August 5, 1920, the plaintiff assigned the decree in this action' the decrees in several other actions " and all (his) right, title, interest, claim, and demand into and upon the same " to one Kumar-. appa Chetty.

On November 12, 1921, Kumarappa Chetty, by his attorney Kandasamy, assigned the decree in this action to the first respondent to this appeal (Mendis Silva) and one John Fernando who is said to have assigned his interest to the second respondent to this appeal (Romel Fernando).

In May, 1924, SinghaFernando, the judgment-debtor, died leaving a last will of which he appointed the second appellant (Gomis Dharmasiri), the executor, and by which he devised all his property to his daughter, the first appellant (Salegin Fernando). The appellants are wife and husband.

The other judgment-debtor, Welpina Silva, is said to have transferred her interests in the lands executable under the decree to the first appellant.

In October, 1924, the first respondent petitioned the Court under the provisions of section 339 of the Civil Procedure Code to have himself substituted as plaintiff in order to enable him to levy execution under the decree. To this petition he omitted to make Welpina Silva a party. She should have been made a respondent to it as she is one of the judgment-debtors. He made the appellants party-respondents, alleging that they were in the possession of the lands executable under the decree. He was not justified in making them party-respondents on that ground, but he was entitled to make the second appellant a party on the ground that he was the executor of the deceased judgment-debtor, Singha Fernando. He made his co-assignee a party-respondent, on the ground that he refused to join him in making the application. He was in order in doing that. He also made the third respondent to this appeal (Allis Silva) a party-respondent, on the ground that he was in possession of the lands under the appellants as th