Rajapakse V. Bastian Et Al.,

 

1940    Present: Howard C.J. and Cannon J.

 

RAJAPAKSE v. BASTIAN et al.

 

62-D. C. Negombo, 11,095.

 

Decree-Assignment of decree-Application for substitution-No application for execution-Civil Procedure Code, s. 339.

 

Where a decree has been transferred an application for substitution of the transferee's name for that of the transferor in the record cannot be made under section 339 of the Civil Procedure Code apart from an application for execution.

 

APPEAL from an order of the District Judge of Negombo.

 

L. A. Rajapakse for the petitioner, appellant.

 

Cyril E. S. Perera (with him 5. W. Jayasuriya), for the first and second defendants, respondents.

 

Cur. adv. vult

 

December 4, 1940. HOWARD C.J.-

 

This is an appeal by the petitioner from an order made on April 24, 1940, by the District Judge of Negombo, dismissing the petitioner's application to have himself substituted in place of the plaintiff in case D. C. No. 11,095, Negombo, and as such substituted plaintiff to proceed with the action. In this action decree was entered for the plaintiff who is the seventh respondent to the appeal on September 22, 1939, for the sum of Rs. 1,575 together with further interest and costs jointly and severally against the first to third defendants-respondents to this appeal. Subsequently on October 4, 1939, by consent, the defendants-respondents were given a year's time to pay and settle the plaintiff's claim and costs, if in the meantime, they paid instalments of Rs. 75 a month. By deed No. 131 dated February 10, 1940, attested by a Notary Public, the plaintiff-respondent assigned his right in the said decree to the petitioner-appellant. In dismissing the application the learned District Judge has held that such application was untenable in form inasmuch as it was merely an application for substitution unaccompanied by an application for execution of the decree. He further held that an application for execution would be premature as the defendants had time till October, 1940, to satisfy the decree.

 

The decision of the learned District Judge was based on an interpreta­tion of section 339 of the Civil Procedure Code for which he purported to find authority in the judgment of Hearne J. in the case of Latiff v. Seneviratne1 and in that of Garvin S.P.J. in the case of Kailasam Pillai v. Palaniappa Chettiar2. In Latiff v. Seneviratne it was contended by the appellant that a sale of immovable property ordered by the Court in execution of a money decree on an application for execution by the executors of the second plaintiff was invalid because there was not a separate and distinct application for substitution. This contention was not accepted by the Court. On the other hand it cannot be regarded as an authority for the pro

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