Present: Garvin and Lyall-Grant JJ.

SHARIEFF et al. v. MARIKKAR et al.

225-D. C. Kalutara, 9,069.

    Prescription--Action on mortgage bond-Death of defendants-Order of abatement-subsequent reversal-Date of commencement of action.

An action which has abated and which has been restored under section 403 of the Civil Procedure Code must be regarded as having commenced at the date of its original institution, for the purpose of a plea of prescription.

APPEAL from a judgment of the District Judge of Kalutara. The action was on a claim based upon a mortgage bond dated March 31, 1913. After the defendants had filed answer, and before the trial, the first defendant died. While his estate was being administered the second defendant also died. On March 6, 1923, the Court entered an order of abatement. On July 14,1923, on the application of the plaintiffs the order of abatement was set aside and the plaintiffs were allowed to proceed with the action. At the trial the substituted-defendants pleaded that the action was prescribed, their contention being that the action must be deemed to have commenced on the date when the order of abatement was set aside. The District Judge overruled the contention, and gave judgment for the plaintiffs.

Drieberg, K.C. (with him Cooray), for substituted-defendants, appellant.

De Zoysa for plaintiffs, respondent.

April 1, 1926. GARVIN J.-

The question raised by this appeal is whether for the purposes of a plea of prescription, an action should be regarded as having commenced at the date of its original institution or at the date of an order setting aside an order of abatement made in the course of the proceedings. The action which was a claim based upon a mortgage bond dated March 31, 1913, was instituted on August 30, 1919. The claim was for principal and interest, and it was alleged that no interest had been paid since the execution of the bond. Summonses were served and the defendants filed answer. Before the trial the first defendant died, and while steps were being taken to administer his estate, the second defendant died. On March 6, 1923, no steps having been taken in the action for more than a year, the Court acting

ex mero motu entered an order of abatement. This order was entered after notice had been given in the manner customary in this Court- The practice, as stated by the District Judge in his judgment was to affix to the notice board of the Court an intimation that an order of abatement would be entered after the expiry of one month, unless good and sufficient cause was shown to the contrary. On July 4, on the application of the plaintiffs the order of abatement was set aside, " and plaintiffs allowed to proceed with the action." By this date administration had been taken out to the estate of the two defendants and their respective administrators were duly substituted on the record. At the trial these substituted-defendants pleaded that ten years having elapsed since the execution of the bond and no interest having been paid thereon, the claim was prescribed. The foundation of the contention is that the action must be deemed to have commenced on the date when the order of abatement was set aside. The argument would seem to be that it is in the nature of a permission to institute a fresh action on the same cause of action. This interpretation seems to me to be in the very teeth of section 403, which is as follows :-

" When an action abates or is dismissed under this Chapter, no fresh action shall be brought on the same cause of action.

" But the plaintiff or the person claiming to be the legal representative of a deceased or insolvent plaintiff may, within such period of time as may seem to the Court under the circumstances of the case to be reasonable, apply for an order to set aside the order for abatement or dismissal; and if it be proved that he was prevented by any sufficient cause from continuing the