Civil Procedure Code (Amendment) Act 2017 · As enacted
13. Replacement of sections 393 to 398 of the principal enactment
Official English translation. Where it differs from the Sinhala or Tamil text, the Act itself says which text prevails.
Official translationFrom Department of Government Printing, unchanged
Sections 393 to 398 (both inclusive) of the principal enactment are hereby repealed and the following new sections substituted therefor:-
393. (1) A party who appoints a registered
Attorney under section 27(2) (hereinafter referred to as the “nominator party”), shall nominate at least one person and not more than three persons, in order of preference, to be his legal representative for the purpose of proceeding with the action, in the event of his death pending the final determination of the action:
Provided that the court may, in the event the memorandum is not filed at any time before the final determination of an action, on its own motion or on the application made by any
“Memorandum.
party, require a party to the action or any person eligible to file a memorandum under the provisions of this Code, to file such memorandum on or before a date appointed for such purpose by the court. In the event of failure to file such memorandum the court may impose an appropriate cost on the defaulting party.
(a) In the event of the death of the nominator party, pending the final determination of the action, the person nominated under subsection (1) shall, in the order of preference in which his name is set out in the memorandum, be deemed to be the legal representative of the party for the purposes of the action.
In the event of the death or incapacity of the legal representative whose name is set out in the memorandum, the person nominated next in order of preference shall be deemed to be the legal representative for the purposes of the action.
The person nominated as legal representative shall subscribe his or her signature to the memorandum, signifying consent to be so appointed. The signature of the nominator party and those of the nominee or nominees consenting to be appointed, shall be witnessed by an Attorney-at-law, a Justice of the Peace or a Commissioner of Oaths.
A nominee may at any time with notice to the nominator party, apply to court by way of a motion to withdraw his consent to be such nominee and in such event the court shall make an order that he ceases to be the nominee of the nominator and shall cause the name of such nominee to be removed.
Subject to the provisions of subsection (1) of this section, a nominator party may at any time before the final determination of the action, make an application with notice to the nominees, to tender a fresh memorandum nominating one or more nominees. On the filing of such new memorandum, the previous memorandum of such nominator party shall be deemed revoked and the nomination contained in such fresh memorandum shall forthwith take effect.
The legal representative of a deceased nominator shall be entitled to take all such steps as may be necessary, as the deceased nominator party would have been entitled to take, had he been alive, if the cause of action survives the death of the deceased nominator party.
(a) A nominee shall not refuse to act as the legal representative of a deceased nominator party. He may, with the leave of the court first had and obtained, by way of petition and after giving notice to the other nominees if any, apply for permission from court to be released from the office of legal representative of such nominator party.Such application may be made not later than two months from the date of the death of the nominator party.
Where the court grants permission to release from the office of legal representative, the nominee who is next in order of preference in the memorandum filed by the nominator party, shall be deemed to be the legal representative of such deceased nominator party, for the purposes of the action.
Where an application under paragraph (a) of this subsection is made by a nominee who is the sole nominee or the sole remaining nominee of deceased nominator party, such nominee shall notify the heirs of such deceased nominator party regarding his application and in the event of the court granting permission as aforesaid, the court shall appoint an heir of such deceased nominator party to act as the legal representative of such deceased nominator party for the purposes of the action.
394.
Failure to file a
On the death of a party to the action who had failed to file a memorandum, any party to the action may apply to the court by an ex parte application by way of a petition supported by an affidavit, requesting that an executor or administrator or in the case of an estate which is below the administrable value, the next of kin who have adiated the inheritance of the deceased party be substituted in the place of such deceased party.
The court may, on being satisfied that such appointment is necessary and the cause of action survives on the death of such party, shall appoint such person.
The person so appointed shall be bound by proceedings prior to his appointment:
Provided that, the person appointed and made a substituted party in the action, may object that he is not the executor or administrator or in the case of an estate which is below the administrable value, the next of kin who have adiated the inheritance of the deceased party or make any defence appropriate to his character as such representative.
Memorandum.
395.
Application for legal
(a) An executor or administrator or in the case of an estate which is below the administrable value the next of kin who have adiated the inheritance of the deceased party may apply to court for the removal of the legal representative of such deceased nominator and for the appointment of a person named in such application or the next person named in order of preference in the memorandum filed by the deceased nominator, as such legal representative. The person who is the legal representative of the deceased nominator for the time being, shall be the respondent to such application.
removal.
The court may, upon being satisfied that it is in the interests of an executor or administrator or in the case of an estate which is below the administrable value the next of kin who have adiated the inheritance of the deceased party may remove such legal representative and appoint the person named next in order of preference in the memorandum filed by the deceased nominator party or if there are sufficient grounds for doing so, appoint the person named in the application, as the legal representative of the deceased nominator party.
An application under this sub-section shall be by way of petition and affidavit and the court may issue notice of the application to the other heirs, if any, of the deceased nominator party.
No proceedings shall be postponed or adjourned or any step in the action postponed by reason of the death of a nominator party.
representative’s
For the purposes of this Chapter-
“estate” means the gross value of the estate of the deceased; and
“legal representative” means a person who represents the estate of a deceased party or person, for the purposes of the action, by virtue of a nomination made in a memorandum filed under subsection (1).
396.
Court to make order that action to proceed
If there be more than one plaintiff or defendant and any of them dies, and if the right to sue on the cause of action survives to the surviving plaintiff alone, or against the surviving defendant alone, the court shall on the ex-parte application by petition supported by affidavit, make an order to the effect that the action be proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants, as the case may be.
397.
Legal
If there are more plaintiffs than one and any one of them dies, and if the right to sue does not survive on the surviving plaintiff or plaintiffs alone, but survives on the legal heirs of the deceased plaintiff jointly, the court may cause the legal representative of the deceased plaintiff to be made a substituted plaintiff in the place of the deceased plaintiff, and shall thereupon cause an entry to that effect to be made on the record and proceed with the action.
398.
to be made a substituted plaintiff. Legal
In case of the death of a sole plaintiff or sole surviving plaintiff, the legal representative of the deceased may, where the right to sue survives, apply to the court representative representative may apply to have name entered.
to have his name substituted on the record in place of the deceased plaintiff and the court shall thereupon cause an entry to that effect to be made on the record and proceed with the action.
398A.
Where no application is made by the legal
If no application is made to the Court by any legal representative of a deceased plaintiff within six months from the death of such plaintiff, the court may make an order that the action shall abate, and award to the defendant the costs which he may have incurred in defending the action, to be recovered from the estate of the deceased plaintiff. However, the court may, if it may deem appropriate, on the application of the defendant, made any time after the death of the plaintiff, and upon such terms as to costs or otherwise as it thinks fit, make an order appointing the legal representative of the deceased plaintiff, in the place of the deceased plaintiff for the purpose of proceeding with the action in order to arrive at a final determination of the matter in dispute.
398B.
of a deceased plaintiff. Legal
If there be more defendants than one, and any one of them die before entering a decree and the right to sue on the cause of action does not survive against the surviving defendant or defendants alone, without substitution of the legal representative of the deceased defendant and also in case of the death of a sole defendant, or sole surviving defendant, where the right to sue survives to the plaintiff, the plaintiff may apply to the court to substitute the legal representative of the deceased defendant in place of such deceased defendant for the purpose of the continuance representative representative of deceased sole plaintiff to apply to be made the plaintiff.
of the action. The court shall thereupon, enter the name of such legal representative on the record in the place of the deceased defendant, and shall issue notice on such legal representative to appear on a day to be therein mentioned, to defend the action.
The legal representative of a deceased defendant nominated in the memorandum, may apply to be a defendant in place of the deceased defendant, and the provisions of this section, in so far as they are applicable, shall apply in respect of such application and to the proceedings and consequences ensuing thereon.”.