In The Matter Of A Rule Under Section 51 Of The Courts Ordinance, No. 1 Of 1889, On Alexander Francis Molamure Executor Of The Last Will And Testament Of The Late J. W. Maduwanwala.

1935   Present: Macdonell C.J., Drieberg and Akbar JJ.

IN THE MATTER OF A RULE UNDER SECTION 51 OF THE COURTS
ORDINANCE, NO. 1 OF 1889, ON ALEXANDER FRANCIS MOLAMURE
EXECUTOR OF THE LAST WILL AND TESTAMENT OF
THE LATE J. W. MADUWANWALA.

Contempt of Court-Disobedience of order of the District Court-Probate issued to executor-Permission to draw money from bank leaving a balance for estate duty-Defiance of order-Courts Ordinance, No. 1 of 1889, ss. 51 and 59.

Where a District Court issued probate to an executor and allowed him to withdraw from the bank a certain sum of money, lying to the credit of the estate leaving a balance, which was intended to defray the cost of estate duty.

Held, that disobedience of the order of the District Court amounted to contempt of its authority.

Held, further, that in the circumstances the Supreme Court alone had jurisdiction to take cognizance of and punish such a contempt.

THIS was a rule calling on the respondent to show cause why he X should not be dealt with under the provisions of section 51 of the Courts Ordinance for contempt of the authority of the District Court of Ratnapura in that he, being the duly appointed executor of a last will proved in that Court, and being prohibited by an order of July 29, 1931, from drawing, without permission of the Court, money lying in deposit in the bank, did withdraw from the bank a sum of Rs. 52,000 when permission had been granted to him to withdraw only a sum of Rs. 22,000.

F. J. Soertsz, K.C. (with him C. V. Ranawake), for respondent.-The question of contempt raised in this rule should be tried by the District Court. Section 51 of the Courts Ordinance provides that the Supreme Court shall have full power and authority to try any offence of contempt against or in disrespect of the authority of itself, or any offence of contempt against or in disrespect of any other Court and which such Court has not jurisdiction under section 59 to take cognizance of or punish.

In this instance, it is submitted that the District Court of Ratnapura has jurisdiction, as the alleged offence of contempt was an offence committed in the course of any act or proceeding in the said Court. It was an offence committed in the course of the testamentary proceedings in the District Court of Ratnapura.

The local decisions on the point are wrong and should be reconsidered.

The rule should be discharged as the offence imputed is a disregard of an order said to have been made on July 29, and it is now clear that there was no order on that date.

If, however, one relies on the order of August 4 as also implied in the offence imputed as a contempt against the respondent, it is submitted that that was an order made without jurisdiction and therefore not binding on the respondent.

(a) It is not an order made irregularly or wrongly by a Court having jurisdiction on, but an order made by a Court which had no jurisdiction to make such an order.

(b) An executor, such as the respondent, gets his authority from the probate and that authority cannot in any way he fettered, or diminished by an order of Court; for a Court to attempt to do so, would amount to an attempt to make a different will than the testator had made.

(c) Section 23 (4) of Ordinance No. 8 of 1919 does not alter the position. Even assuming a Court has power to say that probate will be issued on certain conditions being fulfilled by the executor and to withhold issue of probate pending fulfilment, once probate did issue or reached the executor's hands, he had all the power the will gave him.

On the facts, it is submitted that the order of July 29 was not communicated to the respondent; it was not an order but a minute for the guidance of the Court.

Even if it was an order, it was an order app

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