Selamma Achie V. Palavasam

1939     Present: Wijeyewardene and Nihill JJ.

SELAMMA ACHIE v. PALAVASAM.

80-D. C. Colombo, 51,695. 

Abatement-Death of plaintiff within twelve months-Power of Court to enter order of abatement-Civil Procedure Code, ss. 402 and 403. A Court has no power to enter an order of abatement under section 402 of the Civil Procedure Code where the failure to prosecute the action for twelve months after the last order was due to the death of plaintiff within that period.

APPEAL from an order of the District Judge of Colombo.

S. Nadesan, for appellant.

E. B. Wickremanayake (with him M. Tiruchelvam), for respondent.

Cur. adv. vult 

September 13, 1939. WIJEYEWARDENE J.-

This is an appeal against an order of the District Judge refusing to set aside an order of abatement made under section 402 of the Civil Procedure Code.

The plaintiff instituted this action on a promissory note on February 10, 1933. On March 2, 1933, summons was issued returnable on March 25, 1933. The case was called on the latter date when the Court found that the summons had not been served on the defendant and ordered the

summons to be reissued for June 5, 1933. On June 5, 1933, the Court made an entry "no order" as the plaintiff had failed to take steps to have the summons reissued. On May 1, 1935, the District Judge made the following order : -

" A period exceeding twelve months having elapsed since the date of the last order made in this case without the plaintiff taking steps to prosecute this action it is ordered that this action do abate ".

On October 18, 1938, the present appellant filed papers and moved that the order of abatement be set aside and that she be allowed to continue the action as the legal representative of the plaintiff. The affidavit filed by the appellant shows that the plaintiff died in India in March, 1933, and that the probate of the last will of the plaintiff has been issued to the appellant.

The order of abatement appears to have been made under section 402 and the District Judge dealt with the present application on that footing.

The appellant has contended inter alia both here and in the District Court that the order of abatement was bad as the plaintiff was not alive during the period of twelve months contemplated by section 402. The learned District Judge held against this contention and stated in the course of his order, " section 402 is a provision of Statute Law and the ordinary language of the legislature must be given effect to and consider­ing section 402 in the light of section 403 of which it forms a part it is perfectly clear from section 403 that section 402 also contemplated a case where the plaintiff is dead because it says : ' But the plaintiff or the person claiming to be the legal representative of a deceased or insolvent plaintiff, &c.' Therefore it is perfectly clear that section 403 is sufficiently wide to include a case where the plaintiff dies and the action has abated ".

Now section 402 enables a Court to enter an order that an action shall abate if a period of twelve months elapses subs

Click Here to Read the rest of this document