1942 Present: Howard C.J. and Soertsz J.

KANAPATHIPILLAI v. KANDIAH

384-D. C. Batticaloa. 334.

Res judicata-Action on mortgage bond-Assignment of bond by person not authorised in writing-Dismissal of action-Fresh action after valid assignment-Civil Procedure Code s. 406.

Plaintiff sued the defendant in case No. 141 B.C., Batticaloa, to recover a sum of money on a mortgage bond given by the defendant in favour of a Corporation. The bond was assigned to the plaintiff by a person who was not authorised in writing to do so, as required by section 54 of the Joint Stock Companies Ordinance.

At the trial, the plaintiff admitted that there was no such writing and withdrew his action paying defendant's costs. The Judge recorded that the plaintiff's action was dismissed with costs.

The plaintiff sued on the bond in the present action after obtaining a valid assignment.

Held, that the action was not barred by section 406 of the Civil Procedure Code.

APPEAL from a judgment of the District Judge of Batticaloa.

H. V. Perera, K.C. (with him C. T. Olegasegaram), for the plaintiff, appellant.

N. Nadarajah, K.C. (with him G. Thomas and P. Malalgoda