Chittambaram Chettiar V. Fernando Et Al.,

1947 Present: Soertsz S.P.J. and Jayetileke J.
 
CHITTAMBARAM CHETTIAR, Appellant, and FERNANDO et. al, Respondents.
 
S. C. 237-D. C. Colombo, 6,225.

    Civil Procedure Code, ss. 402, 404-Abatement of action-Action by administrator -Letters recalled-Fresh appointment of administrator-No steps taken-Right of previous administrator to continue action.
 
One P, the administrator of the estate of a Chettiar, filed this action for the recovery of a sum of money due on a Note. After the action was fixed for trial letters of administration issued to P were recalled and fresh letters issued to S. This case was taken off the trial roll for substitution of the new administrator. P took no further interest in the action and S took no steps to got himself substituted. The judge made order abating the action. Thereafter the appellant, one of the heirs of the deceased Chettiar, moved in the testamentary case to have letters issued to S recalled and to have himself appointed administrator, and his application was allowed. Ho then moved to have the order of abatement set aside. His application was disallowed on the ground of delay.
 
Held, that when a new grant was made to S there was a devolution of interest within the meaning of section 404 of the Civil Procedure Code and S was entitled to ask for leave to continue the action but, since he did not so ask, P was entitled to continue the action.
 
Held, also, that P was under no legal duty to get S substituted as Plaintiff in his place and that this step which he undertook was not one necessary for him to take in order to prosecute the action as required by section 402 of the Civil Procedure Code.
 
Held, further, that since P failed to take this step it was the duty of the Court to have fixed the case for trial.
 
APPEAL from a judgment of the District Judge, Colombo.
 
H. V. Perera, K.C., with P. Navaratnarajah, for plaintiff, appellant.
 
N. E. Weerasooria, K.C., with Kingsley Herat, for the 1st defendant, respondent.
 
E. S. Amerasinghe, for the 2nd defendant, respondent.

Cur. adv. vult.

December 1, 1947. JAYETILEKE J.-
 
This is an appeal against an order made by the District Judge of Colombo refusing to set aside an order of abatement entered by him ex: mero motu on July 13, 1940.
 
One Parathasarthy, the administrator of the estate of S. K. R. S. S. T. Sinthamarni Chettiar, instituted this action against the defendants, on November 30, 1936, for the recovery of a sum of Rs. 272,062.50 alleged to be due to the estate of the deceased, on a writing " A " given by them to the deceased, undertaking to pay all sums advanced by the deceased to one W. D. Fernando, the 1st defendant's husband, if the latter failed to pay the same. He alleged further that W. D. Fernando was adjudged an insolvent in action No. 4,474 of the District Court of Colombo, and was granted a certificate, and that no dividend was paid in that action to the creditors as there were no assets.

The 1st and 3rd defendants filed one answer alleging that they authorised the deceased to advance money to the Ceylon Auto Carriers Co., and not to W. D. Fernando personally, and denying their liability to pay the amount claimed on the ground that the loan does not purport to be a loan to the Ceylon Auto Carriers Co. They further pleaded certain legal defenses to the action.
 
The 2nd defendant filed a separate answer pleading, in addition to the defenses set forth in the answer of the 1st and 3rd defendants, that W. D. Fernando transferred to the deceased an estate called Germicide in full settlement of all the claims the deceased had against him.
 
The action was fixed for trial on December 9, 1937, but was postponed for March 9, 1938, owing to the illness of the plaintiff.
 
The medical certificate, which was produced in support of the application for a postponement, shows that the plaintiff was paralyzed on the right side, and was unab

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