Civil Procedure (Amendment) Act 1990

This Act may be cited as the Civil Procedure Code

{Amendment) Act, No. 6 of 1990.

Insertion of new section 14a in Chapter 101.

2 The following new section is hereby inserted immediately after section 14 of the Civil Procedure Code

(Chapter i191) (hereinafter referred to as the “ principal enactment”) and shall have effect as section 14 of that enactment :—

We titation 14a, (1) Where, a person against whom person the right to any relief is alleged to exist is egainst dead and the right to sue for such relief sur-tight to any

Vives, the person in whom such right is teat

°

alleged to exist, may make an application exist dies by way of summary procedure supported by ond ine affidavit to the court in which an action for sue for the same may be instituted, in the following relie

.

survives.

manner. .——

where such person has died intestat leaving an estate, specifying the name, description, and place of abode of any’ person whom he alleges to be the legal representative, as defined in section 394 (2), of the deceased and whem he desires to be made the defendant in the pro-posed action in place of the deceased. Such application shall also specify the name,- description, and place of abode of the person or persons whom the applicant alleges to be the other heir or heirs of the deceased

where probate of the will or letters of administration to the estate of the deceased has not been issued or its issue is likely to be unduly delayed, specifying, the name, description, and place of abode of any person whom he alleges to be the person to j eo whom probate of the will or letters of administration to the estate of the deceased would ordinarily be issued and whom he desires to be made the defendant in the proposed action in place of the deceased.

Upon receipt of an application under paragraph (a) of subsection (1), and the court where it is satisfied that there are grounds therefor, and, after the issue of notice on the representative named in such application and such other persons, if any, and after causing notice of such application,

Upon receipt of an application under paragraph (b) of subsection (1), the court may, where it is satisfied that probate of the will or letters of administration to the estate of the deceased has not been issued or is likely to be unduly delayed, and, after the issue of notice on the person alleged in such application to be the person to whom pro-bate of the will or letters of administration to the estate of the deceased would ordina-rily be issued and such other persons, if any, causing notice of such application, (in the form No, 2A in the First Schedule) to be advertised in a local newspaper to be select-ed by the court or by some other mode of advertisement in lieu of such publication as to the court seems sufficient, and after such inquiry as the court may consider necessary and upon such terms as it thinks fit, order that the person, who appears to the court to be the person to whom probate of the will or letters of administration to the estate of the deceased would ordinarily be issued, be ap-pointed in place of the deceased, for the institution on such action:

Notwithstanding the provisions of sub-section (2) or subsection (3), the court may make an order under any one of those sub-sections, only where—

it is satisfied that the delay in the in-stitution of the action would render such action not maintainable by rea-son of the provisions of the Prescri-ption Ordinance ; or

a period of six months had lapsed after the death of the deceased.

Where after an order appointing a re-presentative in place of the deceased has been made under subsection (2) or subsec-tion (3) and an action instituted against such person in place of such deceased, an executor of the will, or, an administrator of the estate, as the case may be, of such dec2a-sed, is appointed in proceedings instituted under Chapter XXXVIIT. of this Code, such executor or administrator shall, on the app-lication by way of summary procedure, sup-ported by affidavit, made by the plaintiff or any other party to such action or by such executor or administrator, be substituted in place of the person appointed under subsec-tion (2) or subsection (3), and the action shall thereupon proceed in the same manner as if such executor or administrator had ori-ginally been made a defendant, and had been a party to the previous proceedings in the action.

When the action is fora sum of money due to the plaintiff, the court may, in the decree order interest according to the rate agreed on between the parties by the instrument sued on, or in the absence of any such agreement at the legal rate, to be paid, on the principal sum adjudged from the date of action to the date of the decree, in addition to any interest adjudged on such principal sure for any period prior to the institution of the action, with further interest at such rate on the aggregate sum so adjudged from the date of the decree to the date of pay-ment, or to such earlier date a: the court thinks fit.

For the purposes of this section, “ the legal rate” means the rate per centum per annum determined by the Monetary Board established by the Monetary Law Act, by

Where such decree is silent with re-gard to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the court shall be

Section 398 of the principal enactment is hereby repealed and the following section substituted therefor:—

“Of substi-

398.

principal enactment

If there be more defendants than represen one and any of them die before decree, and tatives of the right to sue on the cause of action does oreanens not survive against the surviving defendant or defendants alone and also in case of the death of a sole defendant, or sole surviving defendarit where the right to sue survives, the plaintiff may—

make an application to court by way of summary procedure, supported by affidavit, specifying the name, des-cription and place of abode of any person whom he alleges to be the legal representative of the deceased defendant, and whom he desires to be made the defendant in his stead ; or

where prohate of the will or letters nf administration to the estate of the deceased defendant has not been issued or its issue is likely to be unduly delayed, make an applica-tion to court by way of summary procedure supported by affidavit description and place of abode of any person whom he alleges to be the person to whom probate of the will or letters of administration to the estate of the deceased defendant would ordinarily be issued, specifying the name, whom he desires to be made the defendant in place of the deceased defendant. Such application also specify the name, description and vlace of abode of the person or persons whom the plaintiff alleges to be the heir or heirs of the deceased ; or

where such defendant has died intestate, make an application to court by way of summary pro-cedure supported by affidavit specifying the name, description and place cf abode of any person whom he alleges to be the legal represen-tative of the deceased, and whom he desires to be made the defendant in his stead. Such application shall also specify the name, description, and place of abode of the person or persons whom the applicant alleges to be the heir or heirs of the deceased.

Upon receipt of an application under paragraph (a) of subsection (1), the court may being satisfied that there are grounds therefor, enter the name of such represen-tative on the record in the place of such defendant, and shall issue summons, (in the

Upon receipt of an application under paragraph (b) of subsection (1), the court may, where it is satisfied that probate of the will or letters of administration to the estate of the deceased defendant have not been issued or that its issue is likely to be unduly delaved, and after the issue of notice on the person alleged in such application to be the person to whom probate of the will or letters of administration to the estate of the deceased defendant would ordinarily be issued and such other persons if any, and after causing notice of such application,

Upon receipt of an application under paragraph (c) of subsection (1), the court being satisfied that there are grounds there-for, and, after the issue of notice on the representative named in such application and such other persons, if any, and after causing notice of such application (in the form No. 71A in the First Schedule) to be

The legal representative of a deceased defendant may apply to have himself made a defendant in place of a deceased defendant and the provisions of this section, so far as they are applicable, shall apply to the application and to the proceedings resulting from such an application.

Where after an order has been made under subsection (2) or subsection (3) of this section, an executor or administrator

Section 405 of the principal enactment is hereby amended by the substitution for the words and figures

“application under section 398 may be made”, of the words and figures “application under paragraph (a) of sub-section (1) of sect:un 393 may be made”,

The following new sections are hereby inserted immediately after section 705 of the principal enactment and shall have effect as sections 7054 and 705m of that enartment :—

. Summons 7035a, (1) The summons shall ordinarily be served by served by registered post.

registered post,

(a) In the case of a corporation, the summons may be delivered to the registered office or if there is no registered office, the vrincipal place of business of such corpora-tion or body.

Where the defendant is a public officer, court may send summons by registered post to the head of the department in which the defendant is employed, and it shall be the duty of such head of department to cause the summons to be served personally on the defendant.

Where the court is prima facie satisfied that the defeudant is in the emplov-ment of another person, the court may send the summons to the employer at his usual place of business or, where the employer is

In every case in which the summons are sent by registered post to a person other than the defendant, the court shall also forward a duplicate of such summons, and it shall be the duty of the head of depart-ment, employer or officer, as the case may be, to return such duplicate to the court forlhwith with an acknowledgement of the summons by the defendant or with a state-ment of the service endorsed thereon and signed by the person effecting the service and countersigned by the person to whom the summons had been forwarded by court if he has not himself effected the service.

Where a defendant appears in courtin person on summons being served on him in the manner referred to above, he shall produce his national identity card or a valid passport, as the case may be, and it shall be the duty of the judge to satisfy himself that the person who has appeared before him and the person on whom summons have been served in the manner aforesaid, is one and the same person.

Where a defendant is represented by 2 registered attorney, the attorney shall in the proxy tendered on behalf of the defen-Jant, state the number of the identity card or the passport, as the case may be, of the defendant and shall also make an endorse-ment thereon certifying the identity of such defendant. Where a proxy is tendered on

In this section—

when used with reference to a member of any unit of the

when used with reference to a person employed in a local authority, if the local autho-rity is a Municipal Council, means the Municipal Commis-sioner of that Council:

when used with reference to any other public officer, means the head of the depart-ment of Government in which such person is employed;

The court shall, where the 2

If the service referred to in the prece-ding provisions of this section cannot by the exercise of due diligence be effected, the

In the event of any inconsistency between the Sinhala and Tamil texts of this Act, the Sinhala text shall prevail.

tl primips} enactment is hereby amended as foilows :-—

by the insertion immediately after Form 2 of the following new Form which shall have effect as

by the insertion immediately after Form 71 of the following new Form which shall have effect as Form 71la-of that