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DE SILVA et al. v. DE SILVA et al.
NLR49V219
1948 Present: Howard C.J. and
Dias J.
DE SILVA et al, Appellants, and DE SILVA et al, Respondents.
S. C. 17-D. C. Inty. Balapitiya, M 34.
Civil Procedure
Code-Action on promissory note-Summary procedure-Is it available to executor of
holder ? Defence not prima facie sustainable-Order for security- Chapter 53 of
the Code.
The provisions of Chapter 53 of the Civil Procedure Code relating to summary
procedure on liquid claims can be utilised by the executor of a deceased holder
of a promissory note.
In such an action where the defendant's affidavit indicates that his defence is
not prima facie sustainable he should be required to give security as a
condition, of his being allowed to appear and defend.
APPEAL from a judgment of the District Judge of Balapitiya.
H. V. Perera, K. C. with H. W. Jayewardene,
for plaintiffs, appellants.
C. Thiagalingam, with V. Arulambalam and M. L. S. Jayasekere, for defendants,
respondents.
Cur. adv. vult.
February 24, 1948. HOWARD C.J.-
This is an appeal by the plaintiffs from an order of the District Judge of
Balapitiya allowing the 1st defendant to file answer to the plaintiffs' claim
without giving security. The plaintiffs who are the executors of the late P. H.
A. de Silva obtained a provisional Probate in D. C. Balapitiya Testamentary Case
No. 110 on April 24, 1946. On July 8, 1946, plaint was filed by the plaintiffs
claiming a sum of Rs. 57,500 on a promissory note P 1 given by the defendants to
the late P. H. A. de Silva on November 1, 1944. The plaint was accompanied by an
affidavit by the plaintiffs setting out the facts relating to the promissory
note, the averment that probate had been issued to them and that the sum claimed
was justly and truly due and owing to them from the defendants. Summons under
section 703 of the Civil Procedure Code (Cap. 86) was issued on July 8, 1946,
for defendants to appear within 7 days from date of service of summons and
obtain leave of Court to defend action. This summons was served on July 26,
1946. On July 31,1946, the 1st defendant filed a petition and affidavit applying
for leave to defend the action without giving security. On a joint motion filed
by the parties following an objection by the plaintiffs the matter was fixed for
inquiry on November 15, 1946. The learned District Judge in allowing the 1st
defendant to file answer without giving security has held that the summary
procedure provided by Chapter 53 of the Civil Procedure Code cannot be utilised
by the plaintiffs in this case because (a) they are executors and their names
are not on P 1 and (b) there is no averment in the affidavit that the amount
sued for is due on the note. Further, on the merits he considers that the
affidavits filed disclose such a tangle of transactions and accounts that the
defendant would be entitled to defend without security. He held that it was
unnecessary to discuss the merits at length but he could not say that the
defence set out is not a bone. de one.
In holding that the plaintiffs could not utilise the summary procedure provided
by Chapter 53 of the Civil Procedure Code the District Judge relied on the
judgment of Bonser C.J. in Meyappa Chetty v. Bastion Fernando1. In
this case it was held that the defendants must be allowed to defend
unconditionally by reason of the fact that the plaintiffs had not sworn that the
money is due on the note as required by section 705 of the Civil Procedure Code.
The judgment of Bonser C.J., however, contained the dictum that he doubted
whether the summary procedure applies to a case where the names of the
defendants do not appear in the
1 (1899) 1 Browne's Reports 127.
instrument sued on. It appeared to the learned
Chief Justice that the summary procedure was intended to apply to oases where
there was no doubt as to the identity of the persons who made themselves liable
on the instrument sued on, and that it was not
