Sirimala Veda, R.T. V. Siripala, P.T.

1954 Present: Rose C.J. and Fernando A.J.

R. T. SIRIMALA VEDA, Appellant, and P. T. SIRIPALA et al.,
Respondents

S. C. 393-D. C. Kegalle, 6,186

Civil Procedure Code-Procedure when assignee of a decree seeks to obtain execution- Validity of an order for execution preceded by substitution-Assignee in insolvency-" Representative " of insolvent-Sections 339, 347.

(i) Where the assignees of a decree first applied for substitution as plaintiffs and, after that application was granted, made a separate application for execution, without a formal petition-

Held, that the applications, taken together, constituted substantial and sufficient compliance with the requirements of section 339 of the Civil Procedure Code.

(ii) The assignee in insolvency of a judgment-debtor is a " representative " of the judgment-debtor within the meaning of section 339 of the Civil Procedure Code. Therefore, where a mortgagor against whom a hypothecary decree has been entered is subsequently adjudged insolvent and the hypothecary decree is thereafter transferred by assignment from the mortgagee to any other person, such assignee, when he applies for execution of the decree under section 339 of the Civil Procedure Code, must name as respondent the assignee in insolvency of the judgment-debtor and/or a person who has purchased the mortgaged property from the assignee in insolvency. Failure to do so will render null and void the sale in execution of the hypothecary decree.

APPEAL from a judgment of the District Court, Kegalle.

H. V. Perera, Q. C., with H. W. Jayewardene and D. R. P. Goonetilleke, for the plaintiff appellant.

N. E. Weerasooria, Q. C., with Sir Lalita Rajapakse, Q. C., and G. D. C. Weerasinghe, for the 1st defendant respondent.

C. R. Gunaratne, for the 2nd defendant respondent.

Cur. adv. vult.

June 7,1954. FERNANDO A.J.-

The plaintiff appellant in this case instituted an action against three defendants for declaration of title to a 1/3rd share of a land called Divelgam Walauwa-watte ; the claim against the 3rd defendant was adjusted at the trial and the contest was between the plaintiff on the one hand and the 1st and 2nd defendants on the other.

The share in dispute was originally owned by one Richard Nugawela, who mortgaged the land in 1924 as security for a sum of Rs. 15,550. The mortgagees put their bond in suit in 1924 and hypothecary decree was entered in that action on December 12th, 1929. Although notice was served on the mortgagor in 1931 to show cause why commission for sale of the mortgaged property should not issue, no steps were taken at that stage to have the property sold in execution.

Richard Nugawela, the original owner and mortgagor, was adjudged insolvent in 1936, and on October 7th 1936 the Secretary of the District Court of Kegalle was appointed assignee of the insolvent estate the share in dispute in the present case was sold by the assignee on April 11th 1938 with leave of the Court, the sale was confirmed by Court, and on October 10th 1938 a conveyance was executed in favour of the purchaser who is the plaintiff in the present action. The plaintiff's claim to the share in dispute is based on this conveyance.

In March 1939 the mortgagees who had obtained the hypothecary decree in the mortgage action assigned the decree to the 1st and 2nd defendants who on May 5th 1939 filed a petition in the mortgage action for the substitution of themselves in place of the original plaintiffs for the purpose of proceeding with the action to recover the amount due under the decree in this case. The mortgagor Richard Nugawela was the only respondent named in the petition and notice was issued on him, but although he was represented at the hearing of the petition of July 5th 1939, no objections were filed on his behalf to the application of May 5th 1939. The Court at first made order that writ (presumably for execution) may be issued but,

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