Sockalingam Chettiar V. Seemen appuhamy

1945 Present: Keuneman and Jayetileke JJ.

SOCKALINGAM CHETTIAR and others, Appellants, and SEEMAN
APPUHAMY and another, Respondents.

11-D. C. Inty. Kalutara, 17,666.

Civil Procedure-Several defendants-Death of one-Substitution of legal representative of deceased defendant-Failure of court to enter his name in his representative capacity-Rectification nunc pro tune-Civil Procedure Code, s. 398.

Where there are several defendants and any of them dies before trial the failure of the court to enter in the record the name, in his representative capacity, of the person who has been appointed, and hag acted, as legal representative of the deceased defendant under section 398 of the Civil Procedure Code is merely a failure to perform a ministerial act, which may be performed nunc pro tunc. Nothing in the nature of an order absolute is needed under section 398 of the Civil Procedure Code.

APPEAL from a judgment of the District Judge of Kalutara.

H. V. Perera, K.C. (with him G. P. J. Kurukulasuriya), for the plaintiffs, appellants.

N. E. Weerasooria, K.C. (with him M. D. H. Jayawardene), for the 2nd defendant, respondent.

Cur. adv. vult.

July 4, 1945. KEUNEMAN J.-

This mortgage action was brought by the plaintiff against the original five defendants. Pending the action and before trial the first and the third defendants died. On April 17, 1934, plaintiffs' proctor moved that the second defendant be appointed legal representative of the estates of the first and the third defendants (deceased) for all the purposes of the -action. The motion was supported by petition and affidavit.

It appeared that the first defendant was the mother, and the third defendant the brother, of the second defendant. The proctors for the defendants received notice, but further order was made that the respondents to the petition be noticed. The petition dealt with another matter also, with which we are not concerned.

On April 25, 1934, the proctor for plaintiffs moved that Order Nisi be entered and a date given to enable him to issue the same. This was allowed on April 26, 1934, and Order Nisi was entered and issued. In this Order Nisi it was ordered that the second defendant be appointed the legal representative of the estates of the first and the third defendants who were dead, " unless sufficient cause be shown to the contrary ". On August 3, 1934, a motion that the Order Nisi be affixed to the mortgaged house and land called Madangahawatta was allowed, and this was done later, but the respondents to the petition did not appear or show cause against the Order Nisi. No definite order was made that the Order Nisi be made absolute, nor was the second defendant's name entered in the caption as legal representatives. But the case was fixed for trial.

The trial took place on March 14, 1935, and it is clear that the present defendants were all represented at the trial. The case was settled or that date and decree was entered for the plaintiffs in terms of that settlement. Thereafter substantial payments have been made to the plaintiffs in terms of the decree.

On February 29, 1944, the proctor for plaintiff moved that the caption to the decree be amended by entering the name of the second defendant as legal representative of the estates of the first and the third defendants. The second defendant objected to the application and the District Judge refused the application on the ground that the Order Nisi had not been made absolute and that the appointment of the legal representative had not been made. The District Judge, refused to make the Order Nisi absolute nunc pro tune or to act as though the Order Nisi had been made absolute.

For the purposes of this appeal it is necessary to consider whether section 398 of the Civil Procedure Code has been satisfied by the plaintiff. This section deals with the procedure which arises when one defendant dies and the right of

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