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2. That the objects of this Association are to promote thrift, to aid the members when in pecuniary difficulties, and to make some provision primarily for their widows and orphans:

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17. That the nominee or nominees of a member shall be a member or members of his family, including a bona fide adopted child where a member has no child or children of his own : or, failing such, any other relation. Such name or names shall be registered in the books of the Association as well as in the member's pass-book; provided that on the marriage of a member the nomination previously made by him shall cease to be valid, and that a fresh nomination shall be made by such member, which shall be duly registered.

21. That on satisfactory proof of the death of a member being furnished to the Treasurer, he shall have the power to advance to the person nominated by the deceased, or, in the absence of a nominee, to his widow, orphans, or next of kin, or in either case to some responsible person, upon application, a sum not exceeding one hundred rupees (Rs. 100) to meet funeral and incidental expenses; and no claim by any person whomsoever shall be entertained in respect of such advance. Any sum so advanced shall be deducted from the amount payable on account of the deceased member.

22. On the death of a member the amount available at his credit in the books of the Association shall be paid to his nominee upon application. In addition to this payment, if the deceased member's name had been twelve months or more immediately preceding his death on the books of the Association without his being liable to forfeiture of membership under rules 15 or 23, the Committee shall pay to the nominee a contributory call calculated at rupees two (Rs. 2) per head of members whose names have been for the same period on the said books. The said payment shall be made within two months of application being made therefor; and in the event of the Committee not finding it practicable to make the payment within such time, then with interest on the amount due at the rate of 4 per cent. per annum from the expiry of the said two months. In the absence of a nominee the credit balance and contributory call shall be paid to the widow; if there be no widow, to the children; and if there be no children, to the next of kin or legal heirs. Provided, that if the nominee be a minor, the amount due to such minor shall be deposited in the Ceylon Savings Bank for the benefit of the minor, and be subject to the rules of the said Bank in respect of deposits made for the benefit of minors.

Drieberg, K.C. (with him Navaratnam), for appellant.

Samarawickreme, for respondent.

September 5, 1922. ENNIS J.

This was an action brought by the Ceylon Mutual Provident Association, which originated in the following circumstances. One of the members of the Association, Solomon Pieris, died, and left a credit balance and contributory call thereupon due by the Association to somebody. The Association could not decide to whom the money had to be paid, so they instituted this action and paid

the money into Court. It appears that under the rules of the
Association each member could nominate a person of a specified
class to be the person to receive the credit balance and contributory
call on the death of the member. In this case Solomon Pieris had
nominated his cousin, Daniel Pieris, who died, before Solomon
Pieris, leaving a widow, the added-defendant in the present case
and respondent in this appeal. Solomon Pieris then died leaving a
will by which he devised this specific sum to the added-defendant
in the present case. Under the rules of the Association, in the event
of the death of a member and in "the absence of a nominee
whatever that may mean, the Association is bound to pay the
credit balance and contributory call to the widow, and if there
be no widow to the children, and if there be no children to the next
of kin or legal heirs. It appears that Solomon Pieris left no widow
and no children. The first and second defendants are the executors
of Solomon Pieris's will. The third defendant is the sister of
Solomon Pieris, fourth defendant is her husband, the fifth defendant
is a nephew of Solomon Pieris, and they all claim as next of kin
and legal heirs. The learned Judge held in favour of the added-
defendant, and the next of kin appeal from that decision.
unable to see the circumstances under which the substantial rights
of the parties are affected by the decree under appeal, because there
is no legal principle upon which the nominee mentioned in the
rules (or, in the absence of a nominee, the person specified in the
rules), becomes the owner of the amount paid to him or her. The
effect of the rules, as at present formulated, is to provide that the
Association shall be in a position to obtain a good receipt for any
payments they make. The rules merely say that the money
shall be paid to a nominee, a certain specified person, and do not
say that the money should become the property of that person, and
I know of nothing by which the payment under the rules would
affect the devolution of ownership according to the principles of
law. It is possible that if the rules had added that the property
should pass to the nominee or the persons specified, it might have
been suggested that the devolution was based upon the contract
between each individual member and the other members of the
Association. However, the rules contain no such words, and the
words of the rule merely designate the destination of the property.
This being an interpleader action, the question between the defend-
ants is which of them is legally entitled to the property in question?
Under the will of Solomon Pieris, which does not appear to have
been contested, the added-defendant is the person intended to be
benefited in respect of this property. In the circumstances of the
case there is no occasion to consider what the terms " next of kin "
or "legal heirs " may mean in the rules of the Association, or, the
order in which the next of kin or legal heirs are to be paid. The
added-defendant is entitled to the property, and whether she be

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Ceylon Mutual Provident

Association v. Mendis



Ceylon Mutual

the person whom the Association should pay in the first instance or not, the decree in her favour substantially declares the ultimate destination of the property in question. I would accordingly dismiss the appeal with costs.


Association SCHNEIDER J.-I agree. v. Mendis


Appeal dismissed.

Present: Porter and Schneider JJ.


97-D. C. Kegalla, 5,367.

Action on a mortgage bond against mortgagor and purchaser-Application after trial to add the purchaser, pendente lite, as party to action— Civil Procedure Code, s. 18-Power of Court to delay entering up of decree-Civil Procedure Code, ss. 187 and 188-Policy of the Code to avoid multiplicity of actions.

Plaintiff instituted an action on a mortgage bond against the mortgagor (first defendant) and the purchaser from the mortgagor (second defendant). The lis pendens was not registered nor were the provisions of chapter XLVI. of the Civil Procedure Code complied with. After trial judgment was reserved, and before judgment was delivered plaintiff moved that judgment be deferred till an application to add a party to whom the second defendant had sold the property pending the action was considered.

Held, that the Court had power under section 18 of the Civil Procedure Code to add a party at that stage, and that plaintiff's application should have been allowed under the circumstances.

SCHNEIDER J.-"The policy of the Civil Procedure Code is to avoid a multiplicity of actions, and, therefore, where the facts brought to the notice of the Court before it has finally disposed of the action are such that the addition of a person would tend effectually to deal with all the questions involved, the Court should not put difficulties in the way of parties to the action who seek to add such persons, but should stay its hand and afford the party seeking to do so an opportunity to add such persons as may be necessary to finally determine all questions arising in the action."

A District Judge has no power to delay the entering of the decree once judgment has been pronounced.

THE facts appear from the judgment.

R. L. Pereira, for the plaintiff, appellant.
Keuneman, for the second defendant, respondent.

November 1, 1922.



Banda v.

On January 12, 1920, the plaintiff instituted this action for the realization of a mortgage created in his favour by the first defendant. Dharmaratne He alleged that the second defendant was in possession claiming to be a purchaser of the land mortgaged subsequent to the date of the mortgage. The first defendant offered no defence. The second defendant pleaded several defences, and disclosed that the land mortgaged was seized and sold on January 8, 1920, and was purchased by her, and that she obtained a transfer from the Fiscal on August 9, 1920. A trial followed, but upon an appeal to this Court a fresh trial was directed by the judgment of this Court dated October 21, 1921.

This trial took place on June 27, 1922, and was concluded on that date. The judgment was deferred for July 18, 1922. As to what happened on that day, there is the affidavit of Mr. Advocate Molamure, which I accept without hesitation.

In this affidavit he states that the plaintiff's proctor handed to him a motion early that morning. This motion is on the record. It is dated July 17, 1922, is signed by the proctor for the plaintiff, and is to the effect that the second defendant had transferred her interest in the property mortgaged on January 25, 1922, to one Dingiri Bandara Mahatmaya—a fact which had been concealed up to that date, and that "decree be not entered till the summons are issued to the said purchaser, and that he also moved for a summons on the said purchaser."

This motion is characteristic of the motions which some proctors occasionally make without considering the procedure which they should follow. The motion was clearly intended to ask that the Court should stay its hand until the party named was added, and that the plaintiff be allowed the opportunity to take steps to add that party.

It was not correct to ask for a summons to issue in the first instance upon the party sought to be added. The correct procedure that should have been followed for that purpose was pointed out, and laid down in Loos v. Scharenguivel1 so far back as 1891. It was there pointed out that the procedure for adding a party under section 18 of the Civil Procedure Code should be that the party seeking to bring in a third person should obtain ex parte, an order giving leave to serve a notice on the person whom he desires to bring in, and the question whether such person ought to be joined should be considered and dealt with in his presence and in that of the parties already on the record.

It is evident, therefore, that the latter part of the motion of the plaintiff's proctor that summons should issue is not in order. It is unfortunate for his client that the plaintiff's proctor should have

13. C. L. R. 47.



Banda v. Dharmaratne

blundered in the manner he has done in respect of procedure which had been laid down over thirty-one years ago. But that blunder has no bearing upon the situation which has developed.

On July 18, 1922, Mr. Molamure states that before judgment was delivered, he moved that it be deferred till the application was considered for the addition of the party to whom the property, was alleged to have been transferred during the pendency of the action. The learned District Judge appears to have regarded the motion of Mr. Molamure strictly according to the wording of the motion in writing, and to have told Mr. Molamure that he must deliver his judgment then and take notice of the motion to defer, the entering of the decree should be given to the second defendant and its consideration be taken up later. He accordingly pronounced his judgment, which is in favour of the plaintiff against both defendants as prayed for, that is, for the sum claimed in the plaint upon the footing of a hypothecary decree.

The matter of the plaintiff's motion was considered by the District Judge on July 28, 1922, when he held that he had no power to defer the entering of the decree in terms of his judgment. He directed that decree should be entered in terms of his judgment. From this order the plaintiff appeals.

His appeal is dated August 8. It is evident that if the appeal be regarded as from any order made on July 18, it is out of time. From the petition of appeal it is clear that the plaintiff's proctor regarded the appeal as from the order refusing to defer the entering of the decree on July 28. To my mind the learned District Judge was quite right in so refusing. The reason given by him is good, viz., that he had no power to delay the entering of the decree once judgment had been pronounced.

Judgment and decree are defined in the Civil Procedure Code, and the provisions in sections 187 and 188 of the Code make it plain that the decree must follow as, of course, when the judgment has been pronounced. It seems to me that the written motion should have been that the Court should not decide the action or pronounce judgment till the plaintiff had taken steps to add the person whose name was disclosed as a party to the action. It would accordingly appear that the motion was not rightly conceived in either of the two matters to which it referred. The plaintiff is also to blame in that he omitted to register his "lis pendens." Had the provisions of the law been followed in that respect, he would not have found himself in the present predicament.

Two questions arise for decision:

(1) Could a fresh party be added to the action at the stage of it at which the application was made.

(2) Should the plaintiff's application have been allowed.

In my opinion, the answer to both these questions is in the affirmative.

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