Loku Menika V. Selenduhamy

1947 Present: Dias J.

LOKU MENIKA, Appellant, and SELENDUHAMY, Respondent.

S. C. 192-C. R. Ratnapura, 1,528.

Civil Procedure-Mortgage Ordinance-Application for appointment of legal representative--Notice not served on respondents-Decree entered-Application to set aside decree-Procedure.

Where an order is made ex parte the proper procedure to be adopted by the person against whom that order has been made is, in the first instance, to move the Court which made the order to set it aside. Such an application would not be in terms of the Civil Procedure Code but in accordance with a rule of practice which has become deeply ingrained in the legal system of Ceylon.

APPEAL from a judgment of the Commissioner of Requests, Ratnapura.

H. V. Perera, K.C. (with him S. R. Wijayatilake), for the second defendant, appellant.

N. E. Weerasooria, K.C, (with him P. Navaratnarajah), for the petitioners, respondents.

Cur. adv. vult.

June 10, 1947. DIAS J.-

The plaintiff B. A. Abraham Singho instituted this mortgage action, and as the mortgagors were dead, he moved to have a " legal representative " appointed in place of the deceased mortgagors under section 7 of the Mortgage Ordinance. The respondents named to that application were the present five respondents and E. P. Punehimenika who is also a respondent to this appeal.

The Court ordered notices to issue on the respondents. On May 25, 1943, the Court clerk journalled that all the respondents had been reported to have been served with notice, and as they were absent, M. K. Silinduhamy (the first respondent to this appeal) was appointed legal representative of the deceased mortgagors. Thereafter summons in the main action were issued on her. On the returnable date summons having been reported to have been served on her, and she being absent, a decree absolute was entered in the action on July 13, 1943.

Thereafter order to sell was issued, and at the sale the appellant, who is the wife of the plaintiff mortgagee, purchased the land.

On February 22, 1945, the present respondents came before the court alleging that the original notices for the appointment of a legal representative had not been served on them, that they were unaware of the institution of the action until January, 1945, and that the summons in the main action had not been served on Silinduhamy, the first respondent. They, therefore, moved the Court to vacate all the proceedings.

An inquiry was held by the Commissioner and he has found as a fact that the original notices for the appointment of the legal representative were not served by the Fiscal's Officer on persons known to him, but on being pointed out to him. This important fact had not been entered in

the journal of the case. Had it been, the Judge before taking any further action would have directed what is called an affidavit of identity to be produced by the person who pointed out the persons to the process server identifying them as the persons wanted. There was thus no proof whatever that the correct persons had been pointed out. The appointment of Silinduhamy as the legal representative was, therefore, bad ab initio. The Judge has also accepted the evidence of Silinduhamy that she was never served with the summons in the main action. He, therefore, held that the proceedings culminating in the decree and thereafter were void, and he set aside all the proceedings in the case. From that order the purchaser at the mortgage sale, who is the wife of the plaintiff, appeals.

In her petition of appeal she has stated " that it was not stated at the hearing under what provision of the law this application was made: but presumably it was made under section 344 of the Civil Procedure Code. If so, it is submitted that that section cannot in law be invoked in view of the wording of the section itself". The proceedings show that counsel from Colombo appeared for the parties at the inquiry. No refere

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