Samarasekera V. Secretary, Matara, D.C. Et Al.,

1949   Present : Basnayake and Gratiaen JJ.

SAMARASEKERA, Appellant, and SECRETARY, D. C, MATARA et al., Respondents

S. C. 77-D. C. Matara, 16,227

Civil Procedure Code-Administration of estate-Appointment of Secretary of Court as administrator-Change of individual holding the office- Effect-Section 520.

Section 520 of the Civil Procedure Code contemplates the appointment, as administrator, of the Secretary of the Court and not of the individual holding the office. Letters of administration should therefore be addressed to the " Secretary of the Court " and a change of the individuals holding the office will not affect the appointment once made.

APPEAL from a judgment of the District Judge, Matara.

N. E. Weerasooria, K.C., with A. 'V. Kulasingham, and Christie Seneviratne, for the appellant.

H. V. Perera, K.C., with M. H. A. Azeez, for 1st respondent.

C. V. Ranawake, for 2nd respondent.

Cur. adv. vult.

April 12, 1949. BASNAYAKE J.-

On May 10, 1944, one Dona Angonona de Silva Karunanayake Hamine. the widow of Naotunnege alias Naurunnege Don Andrayas de Silva, sued A. de S. Kanakeratne, the Secretary of the District Court, who had been appointed administrator of her late husband's estate, for the recovery of a sum of Rs. 7,400 which she had paid to one E. J. Buultjens in settlement of a mortgage debt incurred by her deceased husband. On December 1, 1944, decree absolute was entered giving the plaintiff judgment in the sum of Rs. 7,400 with interest and costs. On April 30, 1946, the proctor for the plaintiff appears to have represented to the court the fact that C. F. A. Palliyaguru, the officer who had succeeded Mr. Kanakeratne as Secretary of the District Court, refused to take notice of taxation of the bill of costs on the ground that he had not yet been appointed administrator. The following order was thereupon made on July 11, 1946: -

" The Secretary of this Court is now appointed official administrator in Testy 4075. Mr. A. P. Daluwatta for plaintiff moves that he be ordered to take notice of the bill and that the same may be taxed. Let him take notice and the chief clerk of the court tax the bill against the deceased's estate.

Thereafter in execution of the decree on November 19, 1946, certain lands belonging to the estate of the deceased were sold. On December 17, 1946, the present Secretary filed, petition naming the plaintiff and one Sirineris de Silva Samarasekera as respondents, in which he moved to have the sale in execution of the plaintiff's decree set aside on the following grounds: -

" (a) The Official Administrator against whom decree had been obtained in this case has since ceased to function and the 2nd respondent has not taken proper steps to have the petitioner substituted in room (sic) of the defendant Mr. A. de S. Kanakaratne the then Official Administrator.

"(b) No seizure of the property sold has been effected and published as required by the provisions of the Civil Procedure Code.

"(c) No proper publication of notices of sale have (sic) been effected as required by section 255 of the Civil Procedure Code and as a result of such non-publication these properties which are of the value of over Rs. 10,000 have been sold for a sum of Rs. 4,045. Substantial loss has therefore been caused to the heirs of the said Naotunnege alias Naurunnege Don Andrayas de Silva. An affidavit relating to the above-mentioned facts have (sic) already been filed by Randombage Babunappu de Silva who is an heir of the above-mentioned estate.

"(d) The 1st respondent fraudulently made it known to such members of the public as who (sic) were present on the occasion of the alleged sale that the sale was one among the heirs of the above-mentioned estate and that the members of the public were not entitled to offer any bids."

The learned District Judge held that there was a material irregularity in the conduct of the sale and

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