Administration Of Justice (Amendment) Law (Sri Lanka)

Administration Of Justice (Amendment) Law

Published: 1975

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Administration Of Justice (Amendment) Law

Administration Of Justice (Amendment) Law

A LAW TO AMEND THE ADMINISTRATION OF JUSTICE LAW, -NO. 44 OF 1973.
BE it enacted by the National State Assembly of the Republic of Sri-Lanka as follows:

Short title and date of operation. 1. This Law may be cited as the Administration of Justice (Amendment) Law, Ho. 25 of 1975, and shall come into operation on such date as the Minister may appoint by Order published In the Gazette.

Amendment of section 3 of the Administration of Justice Law, No. 44 of 1973. 2. Section 3 of the Administration of Justice Law, No. 44 of 1973 (hereinafter referred to as the " principal enactment ") Is hereby amended in sub-section (1) of that section, by the substitution, for paragraphs (a) and (5) thereof, of the following new paragraphs: -
" (a) The British Courts Probates (Resealing) Ordinance, the Bribery (Special Jurisdiction) Law, No. 8 of 1973, the Civil Courts (Special Provisions) Act, No. 43 of 1961, the Civil Procedure Code, the Courts Ordinance, the Court of Criminal Appeal Ordinance, the Courts of Bequests (Special Provisions) Act, No. 5 of 1984, the Ceylon Courts of Admiralty Ordinance, the Court of Appeal Act, No. 44 of 1971, the Criminal Procedure Code, the Destruction of Valueless Documents Ordinance, the Fiscals Ordinance, the Law Society Ordinance, the Legal Practitioners Ordinance, the Partition Act, the Payment of Fines (Courts of Summary Jurisdiction) Ordinance, the Rural Courts Ordinance, the Supreme Court Appeals (Special Provisions) Act, No. 4 of 1960, the Supreme Court (Vacation) Ordinance and the Vexatious Actions Ordinance are hereby repealed.

(b) Sections 19 to 21 and sections 26 to 36 of the Public Trustee Ordinance are hereby repealed.".

Insertion of new Chapter VI in the principal enactment. 3. The following new Chapter is hereby inserted immediately after Chapter V, and shall have effect as Chapter VI, of the principal enactment:

'Chapter VI

CIVIL PROCEDURE

Procedure of action. 361. The procedure of an action shall be subject to and regulated by the provisions hereafter in this Chapter contained.

INSTITUTION OF ACTION

Action. 362. Every proceeding for the prevention or redress of a wrong, constitutes an action. Nature of action.

363.
(1) The procedure of an action may be either regular or summary.

Explanation In regular actions, the defendant is called upon to state formally his answer to the case which is alleged against him before any question of fact is entertained by the Court, or its discretion thereon is in any degree exercised. in summary actions, the applicant simultaneously with preferring his application supports with proper evidence the statement of fact made therein; and if the Court in its discretion considers that a prima facie ease is thus made out (a) either the order sought is immediately passed against the defendant . before he has been afforded, an opportunity of opposing it, but subject to the expressed qualification that it will only take effect in the event of his not showing any reasonable cause against it on a day appointed therein for the purpose;(b) or a day is appointed by the Court, and notice is given to the defendant that the matter will be Inquired into on that day,

(2) Every action instituted In a Magistrate's Court. shall commence and proceed by way of summary procedure.

(3) Except where It is by law specially provided that actions may be instituted by summary procedure, every other action shall commence and proceed by way of regular procedure, as hereinafter provided.

Action to be instituted in appropriated Court. 364.
(1) Subject to the pecuniary or other limitations prescribed by any law, an action may be Instituted in the Court within the jurisdiction' of which- (a) the defendant or one of the defendants resides; or (b) the land in respect of which the action is brought is situated In whole or In part; or (c) the cause of action arises; or (d) the contract sought to be enforced was made.

(2) In matrimonial actions, the Court within, the jurisdiction of which the plaintiff resides, and, where spouses who have a Sri. Lanka domicile are both. resident outside Sri Lanka at the date of the institution of the action, the Court within the jurisdiction of winch either spouse may have last resided, shall, also have jurisdiction to entertain the action.

(3) Where it is alleged, to be uncertain within the jurisdiction of which of two or more Courts any immovable property is situated, any one of those Courts may, If satisfied that there is ground for the alleged uncertainty, record a statement to that effect, and thereupon proceed to entertain and dispose of any action relating to that property. The decree in any such action shall have the same effect as if the property was situated within its jurisdiction.

Scope of action. 365.
(1) Every regular action shall, as far as practicable, be so framed as to afford ground for a final decision upon the subjects in dispute, and so to prevent further litigation concerning them.

(2) Every action shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the action within the jurisdiction of any Court.

(3) Where a plaintiff omits to sue in. respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

(4) A person entitled to more than one relief in respect of the same cause of action, may sue for all or any of such reliefs; but if he omits, except with the leave of the Court obtained before the hearing, to sue for any of such reliefs, he shall not afterwards sue for the relief so omitted.

(5) For the purposes of this section, an obligation and a collateral security for its performance shall be deemed to constitute one cause of action.

Joinder of causes of action. 366.
(1) Except as otherwise provided, the plaintiff may unite in the same action several causes of action against the same defendant or the same defendants jointly, and any plaintiffs having causes of action in which they are jointly interested against the same defendant or defendants may unite such causes of action in the same action.

(2) Where causes of action are united, the jurisdiction of the Court as regards the action shall depend on the amount or value of the aggregate subject-matters at the date of instituting the action, whether or not an order has been made under subsection (5).

(3) In an action for the recovery of, or a declaration of title to, immovable property, no other claim or cause of action may be made without the leave of the Court, except claims for-
(a) mesne profits or arrears of rent in respect of the property claimed, or any part thereof;

(b) damages for breach of any contract under which the property or any part thereof is held or consequential to the trespass which constitutes the cause of action.

(4) No claim by or against an executor, administrator, or heir, may be joined with a claim by or against him personally, unless the latter claim is alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor, administrator, or heir, or is such as he was entitled to, or liable for, jointly with the deceased person whom he represents.

(5) Where it appears to the Court on the application of a defendant or otherwise that any causes of action joined in one action cannot be conveniently tried or disposed of together, the Court may order separate trials, or make such other order as may be expedient for the separate disposal thereof.

(6) All objections on the ground of misjoinder of causes of action shall be taken at the earliest possible opportunity, and, in any case at or before the preliminary investigation, unless the ground of objection has subsequently arisen. Any such objection not so taken shall be deemed to have been waived.

Plaintiff. 367.
(1) All persons may be joined in one action as plaintiffs, in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally, or in the alternative, where if such persons brought separate actions any common question of law or fact would arise.

(2) Where two or more co-owners are entitled to the possession of immovable property, one or more of them may maintain an action in respect of his or their undivided shares in the property against a trespasser or one or more of the co-owners.

(3) Where the holder of a bill of exchange or promissory note dies intestate leaving an estate below the value of twenty thousand rupees, his heirs may, without obtaining letters of administration to the estate of the deceased, join in one action to recover the amount due on the bill of exchange or promissory note.

(4) Where it appears to the Court that any joinder of plaintiffs may hinder or delay the trial of the action, the Court may require the plaintiffs to elect as to which of them should proceed with the action, or order separate trials or make such other order as may be expedient.

(5) In any action in which there is more than one plaintiff, judgment may be given for such plaintiff as may be found to be entitled to relief for such relief as he may be entitled to, without any amendment of the plaint for that purpose. But the defendant, though unsuccessful, shall be entitled to his costs occasioned by the joining of any person as a party who is not entitled to relief, unless the Court in disposing of the costs shall otherwise direct.

Substituted and added plaintiffs. 368. Where an action has been instituted in the name of the wrong person as plaintiff, or where it is doubtful whether it has been instituted in the name of the right person as plaintiff, the Court may at any stage of the action, if satisfied that the action has been so commenced due to a bona fide mistake and that it is necessary for the determination of the real matter in dispute so to do, order any other person, with his consent, to be substituted or added as plaintiff, upon such terms as may appear to the Court to be just.

Defendants. 369.
(1) All persons may be joined in the same action as defendants against whom the right to any relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist whether jointly, severally or in the alternative, where if separate actions were brought against such persons, any common question of law or fact would arise.

(2) Where the plaintiff is in doubt as to the person from whom he is entitled to relief, he may join two or more defendants, in order that the question as to which, if any, of the defendants is liable, and to what extent, may be determined as between all parties.

(3) The plaintiff may, at his option, join as parties to the same action all or any of the persons severally, or jointly and severally, liable on any one contract, including parties to bills of exchange and promissory notes.

(4) Judgment may be given against such defendant as may be found to be liable, according to his liability, without any amendment of the plaint for that purpose.

Where numerous parties, one may sue of defend for all. 370. Where there are numerous parties having a common interest in bringing or defending an action, one or more of such parties may, with the permission of the Court, sue or be sued or may defend in such an action on behalf of all parties so interested. But the Court shall in such case give, at the expense of the party applying so to sue or defend, notice of the institution of the action to all such parties, either by personal service or (if from the number of parties or any other cause such service is not reasonably practicable, then) by public advertisement in such manner as the Court in each case may direct:

Provided however that any person on whose behalf an action is instituted or defended under this section may apply to the Court to be made a party.

Misjoinder not to defeat action. 371.
(1) No action shall be defeated by reason either of the misjoinder or non-joinder of parties, and the Court may in every action deal with the matter in controversy in relation to the rights and interests of the parties actually before it.

(2) If the consent of anyone who ought to be joined as a plaintiff cannot be obtained, he may be made a defendant, the reasons therefor being stated in the plaint.

Parties improperly joined may be struck out. 372.
(1) The Court may at any stage of the proceedings, upon the application of either party or otherwise, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, be struck out or that any plaintiff be made a defendant or that any defendant be made a plaintiff or that the name of any person who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the action, be added.

(2) Every order made by the Court for the alteration of the parties to an action shall state the facts and reasons which together form the ground on which the order is made.

(3) No person may be added as a plaintiff or as the next friend of a plaintiff without his previous consent.

(4) A person who is added shall be described as ." added party " in all pleadings and other legal documents entitled in the action and made after the date of the order.

(5) Where a plaintiff or a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary.

(6) The action as against an added defendant shall be deemed to have been instituted only on the date on which such person is added.

Intervention not otherwise allowed. 373. No person shall be allowed to intervene in a pending action otherwise than in pursuance of, and in conformity with, the provisions of this or any other written law.

Conduct of litigation. 374. The Court may give the conduct of the action to such plaintiff as it deems proper.

Objections to non-joinder of misjoinder of parties. 375. Objection on the ground of non-joinder or misjoinder of parties shall be taken at the earliest possible opportunity and in any case before the preliminary investigation, unless the ground of objection has subsequently arisen. Any such objection not so taken shall be deemed to have been waived.

RECOGNIZED AGENTS AND REGISTERED ATTORNEYS

Appearances may be by party in person, his recognized agent or registered attorney. 376.
(1) Any appearance, application, or act in any Court, required or authorized by law to be made or done by a party (except such appearances, applications, or acts as by any law only attorneys-at-law are authorized to make or do, and except where otherwise expressly provided) may be made or done by the party in person, or by his recognized agent, or by an attorney-at-law duly appointed by the party or such agent to act in that behalf (hereinafter referred to as a " registered attorney "):

Provided that any such appearance shall be made by the party in person, if the Court so directs.

(2) An attorney-at-law instructed by a registered attorney for this purpose represents the registered attorney in Court.

Recognized agents. 377. The recognized agent of a party is,-
(a) on behalf of the State, the Attorney-General, who may depute his power of appointing a registered attorney on behalf of the State to any other person by a written document signed by him and filed in Court;

(b) a person holding a general power of attorney authorizing him to make such appearances and applications, and do such acts on behalf of such party, which power or a copy thereof duly certified shall be filed in Court;

(c) a person carrying on a trade or business for and in the name of a party not resident within the jurisdiction of the Court in which the appearance or application is made or act done, in a matter connected with such trade or business only, and provided no other agent is expressly authorized to make such appearances and applications and do such acts.

Proxy to be filed by registered attorney. 378.
(1) The appointment of a registered attorney to make any appearance or application or do any act (hereinafter called the " proxy ") shall be in writing, in the prescribed form, signed by the client or by his recognized agent.

(2) Every proxy shall contain an address of the registered attorney within the limits of the zone in which the Court is situated.

(3) Every proxy shall be filed in Court and shall be in force until,-
(a) it is revoked or determined with the leave of the Court and after notice to the registered attorney or the client by a writing signed by the client or registered attorney, as the case may be, and filed in Court;

(b) the client dies;

(c) the registered attorney dies, is removed from office or suspended from practice or otherwise becomes incapable to act; or

(d) all proceedings in the action including proceedings by way of appeal are ended and judgment satisfied in relation to the client;

Provided that no revocation or determination of a proxy shall be permitted during the period commencing on the day on which argument or hearing is concluded and terminating on the last day for lodging an appeal against any judgment or order made in such action unless a fresh proxy is filed along with such revocation or determination.

(4) No attorney-at-law who appears with or instructed by a registered attorney shall be required to present any document empowering him to act.

(5) The Attorney-General may grant a proxy to an attorney-at-law to act specially in any particular case or to act generally on behalf of the State.

Proceedings stayed on death or incapacity of registered attorney. 379. If a registered attorney dies or is removed from office or suspended from practice, or otherwise becomes incapable to act, at any time before decree, no further proceeding shall be taken in the action against the party for whom he appeared until thirty days after notice to appoint another registered attorney has been given to that party either personally or in such other manner as the Court may direct.

Effect of service of legal document on registered attorney. 380. A legal document served on a registered attorney or left at the address contained in the proxy, except where the same is for the personal appearance of the party, shall be presumed to be duly communicated and made known to the party whom the registered attorney represents, and, unless the Court otherwise directs, shall be as effectual for all purposes as if the same had been given to, or served on, the party in person.

Registered address. 381.
(1) Every party to an action not appearing by a registered attorney shall furnish in writing to the Court an address at which all legal documents relating to the action or appeal therein may be served on him. Such address is hereinafter referred to as the " registered address ".

(2) The registered address shall be furnished in the plaint or when a party first appears or enters an appearance in Court.

(3) Where a party appears by registered attorney the address of the registered attorney contained in the proxy shall be the registered address of such party.

(4) Service of all legal documents at the registered address shall be deemed to be sufficient service.

Change of address. 382.
(1) Any party may with leave of Court and after due notice to all registered attorneys and to all other parties in the action appearing in person change his registered address by filing a memorandum in writing, giving the new address.

(2) Where a party after having appeared in person appears by registered attorney, the registered attorney shall,-
(a) file his proxy in Court; and at the same time,

(b) notice all other registered attorneys and all parties in the action appearing in person of his appointment and of his registered address.

(3) Where a party after having appeared by registered attorney appears in person, he shall,-
(a) furnish a registered address; and at the same time;

(b) notice all registered attorneys and all other parties in the action appearing in person of his registered address.

PLEADINGS

Pleading to state relevant facts and law. 383.
(1) " Pleading " means the statement in writing setting out the claim or demand in any action or matter as well as the defence or objection thereto and includes plaint, answer, replication and any other written statement of like nature as well as any petition or statement of objection.

(2) Every pleading shall contain a statement in concise form, of the facts and of the law on which the party relies either for his claim or demand or for his defence or objection, as the case may be, and shall be divided into paragraphs numbered consecutively.

(3) The pleading shall state how each allegation of facts will be proved: -

if by documents, a list of such documents together with such documents or copies thereof as are in the possession of the party, or such extracts thereof as are relevant, shall be annexed, or where it is impracticable to do so, inspection shall be offered;

if by oral evidence, the names, addresses and occupations of the witnesses together with a brief summary of the proposed evidence or the evidence in affidavit form, of each such witness shall be annexed.

(4) A document which is not disclosed in the manner provided in subsection (3) shall not be received in evidence on behalf of the party at the trial:

Provided that a document which is referred to in the pleading but not disclosed, may be received in evidence if the Court is satisfied that at the relevant time such document was not in the possession of the party.

(5) A witness who is not disclosed in the manner provided in subsection (3) shall not be called to give evidence on behalf of the party at the trial:

Provided that the Court may, in its discretion, if special circumstances appear to it to render such a coarse advisable in the interests of justice, permit such witness to be examined.

(6) The prescribed forms where applicable and where they are not applicable, forms of the like character, shall be used for all pleadings.

Striking out pleadings. 384. The Court may, at any stage of the proceedings, order to be struck out or amended any matter In any pleading which may be unnecessary or scandalous, or which may tend to hinder, prejudice or delay the fair trial of the action.

Amendment of pleadings. 385.
(1) The Court may at any stage of the proceedings allow either party to amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties:

Provided that no party shall be permitted to amend his pleadings after the conclusion of the preliminary investigation, unless the Court is satisfied that an amendment should be permitted in order to prevent manifest injustice:

Provided further that no amendment shall be allowed which would have the effect of converting an action of one character into an action of another and inconsistent character.

(2) The Court may, of its own motion at any stage of the proceedings, give such directions or make such orders with regard to the amendment of pleadings as to it may appear necessary or proper.

Pleadings to be legibly written stamped and signed. 386.
(1) Every pleading and every other document to be filed in Court, whether or not annexed to a pleading, shall be legibly written or typed or printed upon good and suitable paper and shall where necessary be duly stamped in accordance with the provisions of the Stamp Ordinance.

(2) Every pleading presented by a registered attorney shall be signed by such registered attorney and in every other case the pleading shall be signed by the party presenting it.

Defective pleading may be returned or rejected. 387. Where a pleading does not comply with the ' provisions of this Chapter, the Court may make order permitting the fault, defect or omission to be remedied within the time allowed by Court in that behalf and if not so remedied, it may make order rejecting the pleading and may proceed as if such pleading had not been filed in Court.

Requisites of plaint. 388.
(1) The plaint shall conform to the requirements of section 383 and shall contain the following additional particulars:
(a) the name of the Court in which the action Is brought and the date of filing the plaint;

(b) the name, description and place of residence or business of the plaintiff, together with the registered address;

(c) the name, description and place of residence or business, or registered office of the defendant, so far as can be ascertained;

(d) where the plaintiff or defendant is a minor or a person of unsound mind, a statement to that effect;

(e) where the plaintiff sues or the defendant or any of the defendants is sued in a representative capacity, a statement showing in what capacity such plaintiff or defendant sues or is sued;

(f) the facts showing that the Court has jurisdiction;

(g) a demand of the relief which the plaintiff claims;

(h) where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished; and

(i) a statement of the value or approximate value of the subject-matter of the action for the purpose of jurisdiction and of stamp duty,

(2) Where the plaintiff claims some specific portion of land, or some share or interest in a specific portion of land-
(a) the portion of land must be described in the plaint so far as possible by reference to physical metes and bounds, or by reference to a sufficient sketch, map or plan to be appended to the plaint, and not by name only; and

(b) there shall also be filed along with the plaint a table setting out the devolution of the title relied on, whether under deeds or by way of succession or otherwise.

(3) Where the plaintiff sues in a representative character, the plaint shall show not only that he has an actual existing interest in the subject-matter, but that he has taken the steps, if any, necessary to enable him to institute an action concerning it.

Illustrations (a) A sues as B's executor. The plaint must state that A has proved B's will (b) A sues as C's administrator. The paint must state that A has taken out letters of administration to C's estate.

(4) The plaint shall show that the defendant is or claims to be interested in the subject-matter, and that he is liable to be called upon to answer the plaintiff's demand.

(5) Where the cause of action arose beyond the period allowed by any law for instituting the action, the plaint shall show the ground upon which exemption from such law is claimed.

Requisites of answer. 389.
(1) The answer shall conform to the requirements of section 383 and shall contain the following additional particulars: -
(a) the name of the Court, the number of the case and the date of filing the answer;

(b) the name of the plaintiff;

(c) the name, description and place of residence,, or business and the registered address of the defendant;

(d) a statement admitting or denying the several averments of the plaint;

(e) when the defendant sets up a claim in reconvention, the answer must conform to the requirements of section 383. A claim in reconvention duly set up in the answer shall have the same effect as a plaint in a cross action so as to enable the Court to pronounce a final judgment in the same action both on the original and on the cross claim.

(2) In an action relating to land, where the plaintiff has filed a table of devolution of title, the defendant shall, unless he admits the correctness of the title set out, file together with his answer a table of devolution of title upon which he relies.

(3) If the defendant intends to dispute the averment in the plaint as to the jurisdiction of the Court, he must do so by a separate and distinct plea expressly traversing such averment.

(4) If the defendant disputes the right of the plaintiff to sue in any representative capacity, he shall deny the same specifically.

Allegation In plaint not denied deemed to be admitted. 390.
(1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the answer, shall be taken to be admitted: Provided, however, that no denial shall be necessary as to damages claimed or their amount, and they shall be deemed to be put in issue unless expressly admitted.

(2) It shall not be sufficient for a defendant in his answer to deny generally the averments contained in the plaint or to do so evasively, but the defendant shall deal specifically with each allegation of fact, of which he does not admit the truth.

Illustrations (a) If it is alleged that the defendant received a certain sum of money, it shall not he sufficient to deny that he received that particular amount but he must deny that he received that sum or any part thereof, or else set out how much he received. (b) In an action upon a bill of exchange, promissory note or cheque, a defence in denial must deny some matter of fact, e.g. the drawing, making, endorsing, accepting, presenting, notice of dishonour of the bill or not. (c) In an action for goods bargained and sold, or sold and delivered, the defence must deny the order or contract, the delivery or the amount claimed. (d) In an action for money paid and received the defence must deny the receipt of money or the existence of those facts which are alleged to make such receipt by the defendant a receipt to the use of the plaintiff. (e) Where plaintiff sues on a bond conditioned for the payment of a sum of money and for the performance of covenants in an indenture a plea of general performance by the defendant is bad; for the condition being to do several things, the defendant should plead to each particular by itself.

Ground of defence arising pending action.. 391.
(1) Any ground of defence which has arisen after the institution of the action or after the presentation of the answer containing a claim in reconvention, may be raised by the defendant or plaintiff, as the case may be, in his answer or replication.

(2) Where any ground of defence arises after answer is filed, the defendant may, and where any ground of defence to any claim in reconvention arises after filing of replication, the plaintiff may, with leave of Court, file an amended answer or replication, as the case may be, setting forth the same.

(3) Except where the defendant has set up a claim in reconvention, no pleading after answer shall be filed except by order of Court, on special motion to be made after due notice to the other side and before the day appointed for the preliminary investigation, upon such terms as to the Court may appear proper. Such order shall not be made unless the Court is satisfied on such motion that the real issues between the parties cannot be conveniently raised without such further pleading.

Allegation in answer not admitted deemed to be denied. 392.
(1) Every allegation of fact in the answer if not admitted specifically or by necessary implication or stated to be not denied in the replication shall be taken to be denied.

(2) Where no replication is filed, the plaintiff shall be deemed to join issue with the defendant upon the denials contained in the answer and to deny all and singular the averments in the answer setting out the claim in reconvention.

Trial of claim in reconvention. 393.
(1) If it appears to the Court that the trial of a claim in reconvention is likely to hinder, prejudice or delay the trial of the plaintiff's action, the Court may, on the application of the plaintiff or any other party affected thereby at any time prior to or at the preliminary investigation, or if the parties agree, at any subsequent stage of the action, or of its own motion at any stage of the proceedings, order a separate trial of the claim in reconvention or make such other order as may be necessary or expedient for the separate disposal thereof.

(2) Where a Court rejects a plaint or dismisses the plaintiff's action, it shall nevertheless proceed to hear and determine the claim in reconvention

Motions. 394.
(1) Every motion made to the Court in the course of an action shall be made in writing, and shall be delivered to or filed in Court : Provided that any motion made in the course of an action, incidental thereto, and not a step in the regular procedure, may be made orally, but a memorandum in writing of such motion shall, if so required, be at the same time delivered to the Court.

(2) Except where it is authorized to be made ex parte, no motion shall be made without previous notice to the parties affected thereby: Provided that where a Judge is satisfied that the delay caused by the giving of notice of a motion would or might entail irreparable or serious mischief, the Court may make order ex parte on such motion upon such terms as to costs or otherwise and subject to such undertaking, if any, as the Court may think proper; and any party affected by such order may move to set it aside.

(3) Unless the Court gives special leave to the contrary, there shall be at least two clear days between the service of a notice of motion and the day named for hearing the motion.

Hearing of motion. 395.
(1) Where on the hearing of a motion the Court is of opinion that any person to whom notice has not been given ought to have or to have had such notice, the Court may either dismiss the motion, or adjourn the hearing thereof, in order that such notice may be given, upon such terms, if any, as the Court may think proper to impose.

(2) The hearing of any motion may from time to time be adjourned upon such terms, if any, as the Court shall think proper.

COMMENCEMENT OF ACTION

Presentation of plaint. 396.
(1) Every action by way of regular procedure shall be instituted by presenting a plaint to the Registrar of the Court.

Explanation (1) The forwarding of a plaint through the post does not amount to a presentation of the plaint. (2) A duly registered clerk of a registered attorney may on behalf of such registered attorney hand over or deliver the plaint to the Registrar.

(2) The plaint shall be accompanied by-
(a) the proxy, if any,

(b) the summons, which shall be in the prescribed form, and

(c) as many duplicate copies of the summons as there are defendants.

Acceptance of plaint. 397.
(1) The Registrar shall duly register and number the plaint and shall sign and seal with the seal of the Court the plaint, the summons and the copies thereof.

(2) The Court shall cause the summons so signed and sealed to be served in accordance with law: Provided that nothing in the preceding provisions of this section shall prejudice the right of any defendant to take objection to the plaint at any subsequent stage of the proceeding.

Journal. 398. With the institution of the action the Court shall commence a journal in the prescribed form entitled as of the action, in which shall be minuted, as they occur, all the relevant events in the course of the action.

SUMMONS

Summons on defendant. 399.
(1) The summons shall require the defendant to enter an appearance within fifteen days of the date of service of summons.

(2) If the person summoned is a person who is believed not to be able to read the language of the Court, a translation in a language in which he is believed to be conversant shall also be served on him.

(3) There shall be attached to every summons a copy of the plaint.

Summons to be served by registered post. 400.
(1) The summons shall ordinarily be served by registered post. In the case of a corporation or unincorporate body of persons, the summons may be sent to the registered office or if there is no registered office, the principal place of business of such corporation or body :

Provided that-

(a) where the defendant is a State officer, the Court may send the 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;

(b) where the Court is prima facie satisfied that the defendant is in the employment of another person, the Court may send the summons to the employer at his usual place of business or, where the employer is a company or corporation, to any secretary, manager or other like officer of the company or corporation; and it shall be the duty of such employer or officer, as the case may be, to cause the summons to be served personally on the defendant.

(2) In every case in which the summons is 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 such head of department, employer or officer, as the case may be, to return such duplicate to the Court forthwith with an acknowledgment of the summons by the defendant or with a statement of the service endorsed thereon and signed by the person effecting the service and counter-signed by the person to whom the summons had been forwarded by Court if he has not himself effected the service.

(3) In this section, " head of department " means-
(a) when used with reference to a member of any unit of the Sri Lanka Army, Navy or Air Force, the Commanding Officer of that unit;

(b) when used with reference to a person employed in a local authority, if the local authority is a Municipal Council, the Municipal Commissioner of that Council; if the local authority is an Urban or a Town Council, the Secretary of that Council; and if the local authority is a Village Council, the Chairman of that Council;

(c) when used with reference to any other State officer, the head of the Government in which such person is employed.

Personal service. 401. The Court shall, if it is reported that service could not be effected by registered post, or is advised that service by registered post is inexpedient, and may, where the summons having been so served the defendant fails to appear, direct that such summons be served personally on the defendant by delivering or tendering to him the said summons through a process officer of Court or other officer authorized by Court. In the case of a corporation or unincorporate body of persons, summons may be served personally by delivering or tendering it to the secretary or like officer or a director or the person in charge of the principal place of business of such corporation, or to the president, the secretary or like officer of such unincorporate body.

Service when person summoned cannot be found. 402. When the defendant cannot by the exercise of due diligence be found, the summons may be served by the process officer or other authorized officer by leaving it for him with some adult member of his family or with an employee residing with him.

Procedure when personal service cannot be effected. 403. If the service prescribed in the preceding sections cannot by the exercise of due diligence be effected, the process officer or other authorized officer shall affix the summons to some conspicuous part of the house in which the defendant ordinarily resides, or in the case of a corporation or unincorporate body, to the usual place of business or office of such corporation or body, and in every such case the summons shall be deemed to have been duly served.

Proof of service. 404. When a summons is served by registered post, the advice of delivery issued under the Inland Post Rules, and the endorsement of service, if any, and where the summons is served in any other manner, an affidavit of such service shall be sufficient evidence of the service of the summons and of the date of such service, and shall be admissible in evidence and the statements contained therein shall be deemed to be correct unless and until the contrary is proved.

Summons to run in any parts of Sri Lanka . 405. All summonses to appear may be served in any part of Sri Lanka;

Provided that where a summons is required to be served personally outside the local limits of the jurisdiction of the Court issuing the same, the summons shall be forwarded by such Court to the Court within whose jurisdiction the defendant is believed to be residing, and it shall be the duty of the Judge of such latter Court to cause the summons to be duly served. Where more defendants than one service on each.

Where more defendants than one service on each. 406. Where there are more defendants than one, service of the summons shall be made on each defendant.

Service on agent. 407.
(1) Where a defendant has appointed a recognized agent, service of summons on such agent shall be deemed to be service on the defendant.

(2) Where a mortgagor has registered an address of an agent, service of summons on such agent shall be deemed to be service on the mortgagor.

(3) In an action against partners relative to a partnership transaction or in the case of an actionable wrong in respect of which relief is claimed from the partners as a firm, or where a firm is sued in its business name, service of summons on any one partner or on the person, if any, not being a partner who has the control or management of the business of the partnership at its principal place of business, shall be deemed to be service on all the partners.

(4) In an action relating to any business or work against a person who does not reside within the local limits of the jurisdiction of the Court from which the summons issued, service on any manager or agent, who at the time of service, personally carries on such business or work for such person within such limits, shall be deemed to be service on such person. For the purpose of this subsection, the master of a ship shall be deemed to be the agent of the owner or character.

(5) In an action to obtain relief in respect of, or compensation for wrong to, immovable property, if service cannot be made on the defendant in person and the defendant has no recognized agent, service may be made on any agent of the defendant in charge of the property.

Service on defendant in jail. 408. Where the defendant is confined in jail the summons shall be sent to the Commissioner of Prisons for service, and it shall be the duty of such Commissioner to cause the summons to be served on the defendant. The provisions of section 4.00 (2) shall, mutatis mutandis, apply to the service of summons under this section.

Service out of Sri Lank. 409.
(1) Service of summons out of Sri Lanka may be allowed by the Court in all cases in which the Court has jurisdiction. Every application for an order for leave to serve such summons on a defendant out of Sri Lanka shall be by motion and shall be supported by affidavit or other evidence showing in what place or country such defendant is or may probably be found.

(2) Every order giving leave to effect such service shall specify the mode of service, and shall direct that the defendant is to enter appearance within such time after service as the Court directs.

APPEARANCE OF DEFENDANT

Memorandam of appearance by defendant. 410.
(1) The defendant shall enter his appearance by delivering to the Registrar a memorandum of appearance in the prescribed form. The memorandum which shall be accompanied by the proxy, if any, shall contain the following particulars:
(a) the name of the Court,

(b) the number of the action,

(c) the names of the parties, and

(d) the name and the address of the defendant and the name and address of the registered attorney, if any.

(2) The Registrar shall forthwith sign, date and seal such memorandum with the seal of the Court.

(3) The memorandum of appearance may be delivered by the defendant in person or by his registered attorney or by the duly registered clerk of such registered attorney or sent by registered post.

(4) The defendant shall before delivering the memorandum of appearance give notice of his appearance in the prescribed form to the plaintiff and to the other defendants, if any. The notice may be either served at the registered address or sent by registered post to that address and proof of service or posting shall accompany the memorandum of appearance filed in Court.

Undertaking by attorney-at-law to file proxy. 411.
(1) Within the time limited for the appearance of a defendant, an attorney-at-law may, either with the consent of or with notice to the plaintiff, and on satisfying the Court of the existence of special circumstances entitling him to make an application for such an order, be permitted to file a written undertaking to file the proxy for such defendant within such time as may be allowed by Court.

(2) In exceptional circumstances the Court may allow the application ex parte but the attorney-at-law shall in that event forthwith notify the plaintiff of the order of Court.

(3) An attorney-at-law not filing a proxy in pursuance of his written undertaking so tendered shall be liable to pay all stamp fees that would have been payable had he in the ordinary course filed the proxy at the date of his undertaking.

Filing of answer. 412.
(1) Where a defendant has entered an appearance, he shall deliver his answer to the Registrar in the manner provided for entering an appearance within one month from the date of appearance, unless such time is extended by consent in writing of the plaintiff or by the Court after notice to the plaintiff.

(2) The defendant shall before delivering his answer, serve at, or send by registered post to, the registered address of the plaintiff and to the other defendants, if any, a true copy of the answer duly certified by such defendant; and proof of such service or posting shall accompany the answer filed in Court.

Filing of replication. 413.
(1) Where the plaintiff desires to deliver a replication to a claim in reconvention, he shall deliver it to the Registrar within fifteen days from the date of service of the answer.

(2) Extension of the time for delivery of replication may be allowed in like manner as in the case of an answer.

(3) The provisions of subsections (1) and (2) of section 412 shall mutatis mutandis apply with reference to and in respect of the replication.

Filing of amended pleadings. 414.
(1) Where the Court allows or directs amendment of the plaint, answer or replication, such amended plaint, answer or replication shall, unless the Court otherwise directs, be filed within ten days of the date of the order allowing or directing the amendment.

(2) Where, after or in consequence of an amendment of, or rectification to, the plaint or answer, an answer or replication has to be filed, or it becomes necessary to amend an answer or replication already filed, the defendant or the plaintiff, as the case may be, shall file the answer or replication or the amendments thereof within ten days from the date of service of the amended plaint or answer, as the case may be.

(3) Where a plaint, answer or replication is amended, or where the Court disallows or refuses amendment of a plaint or answer or the application for any amendment thereof, or where, after the Court has allowed or directed the amendment of a plaint, answer or replication no such amendment is filed, in computing the time for the next step to be taken by any party, the day on which such amendment was filed, or the day of such disallowance or refusal, or the last day permitted for the filing of such amendment shall be deemed to be the day on which the preceding step or act had been taken or done.

(4) The provisions of subsections (1) and (2) of section 412 shall apply mutatis mutandis with reference to all amended pleadings under this section.

Addition of parties. 415.
(1) Notice calling upon a person to show cause why he should not be added a party defendant in respect of an action shall be in the prescribed form and shall require him to enter appearance within fifteen days of the service of notice.

(2) Where such person enters appearance, he shall, within one month thereof, file his statement of objections.

(3) The provisions of this Chapter shall mutatis mutandis apply to the entering of appearance and to the filing of objections as if the notice were a summons and the statement of objections an answer.

(4) The Court shall thereafter fix a date for inquiry into such objections.

PROCEEDINGS IN THE EVENT OF DEFAULT

Non-appearance of defendant. 416.
(1) Where the defendant fails to enter appearance within the time limited by the summons or such other time as may be allowed by Court, the trial of the action shall proceed ex parte.

(2) Where the defendant after having entered appearance makes default in delivering his answer within the time limited or allowed for that purpose or in appearing on the day fixed for the preliminary investigation or for the trial, the action shall proceed as if the defendant had failed to enter appearance.

Ex parte trial. 417.
(1) The plaintiff may place evidence before the Court ex parte in support of his claim by affidavit or by oral testimony and move for judgment, and the Court, if satisfied that the defendant has been duly served with summons and that the plaintiff is entitled to the relief claimed by him either in its entirety or subject to modification, may enter such judgment in favour of the plaintiff as to it shall seem proper.

(2) Where the Court is of opinion that the entirety of the relief claimed by the plaintiff cannot be granted, the Court shall hear the plaintiff before modifying the relief claimed.

(3) Where there are several defendants of whom one or more enter appearance and another or others of whom fail to appear, the plaintiff may move for ex parte judgment against such of the defendants as may be in default without prejudice to his right to proceed with the action against such defendants as may have appeared. The provisions of this subsection shall apply notwithstanding that the defendants are jointly liable upon a bill of exchange, promissory note or cheque.

(4) The Court shall cause a copy of the judgment entered under this section to be served on the defendant in the manner prescribed for the service of summons.

Orders made upon default of defendant my be set aside. 418.
(1) Where at any time prior to the entering of judgment against him for default, the defendant with notice to the plaintiff satisfies Court that he had reasonable grounds for such default, the Court shall set aside any order made arising out of such default and permit the defendant to proceed with his defence as from the stage of default upon such terms as to costs or otherwise as to the Court shall appear proper.

(2) Where within a reasonable time after the entering of judgment against him for default, the defendant with notice to the plaintiff satisfies the Court that he had reasonable grounds for such default, the Court shall set aside the judgment and permit the defendant to proceed with his defence as from the stage of default, upon such terms as to costs or otherwise as to the Court shall appear proper,

(3) Where judgment by default has been entered irregularly, the Court shall, upon the application of the defendant, with notice to the plaintiff, set aside the judgment if satisfied of the irregularity complained of and direct the action to be proceeded with as from the stage of default, upon such terms as to costs or otherwise as to the Court shall appear proper.

(4) Every application under this section shall be made by petition supported by affidavit.

Non-appearance of plaintiff. 419.
(1) Where the plaintiff fails to appear or where both the plaintiff and defendant make default in appearing on the day fixed for the preliminary investigation or for the trial, the Court shall dismiss the plaintiff's action.

(2) Where an action has been dismissed under this section, the plaintiff shall be precluded from bringing a fresh action in respect of the same cause of action,

(3) The plaintiff may apply within a reasonable time from the date of dismissal, by way of petition supported by affidavit, to have the dismissal set aside, and if on the hearing of such application, of which the defendant shall be given notice, the Court is satisfied that there was good cause for the non-appearance of the plaintiff, the Court shall make order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the action as from the stage at which the dismissal for default was made.

No appeal against decree has default. 420.
(1) No appeal shall lie against any judgment entered upon default of appearance.

(2) The order setting aside or refusing to set aside the judgment entered upon default shall set out the facts and specify the grounds upon which it is made, and may be appealed against to the Supreme Court.

CLOSE OF PLEADINGS

close of pleading. 421.
(1) On the expiration of three days from-
(a) the date of delivery of the answer, where it contains no claim in reconvention, or where no order for any amendment thereof or for the delivery of further 'pleadings, has been made, or

(b) the date limited or allowed for the delivery of replication or of any amendment thereof, or

(c) the date limited or allowed for the delivery of further pleadings permitted by Court,

pleadings shall be deemed to be closed and all material statements of fact and questions of law in the pleadings last delivered shall be deemed to have been denied and put in issue.

(2) The Court shall fix a date for the appearance of parties before it, and shall proceed on that date to hold a preliminary investigation either in the presence of all the parties to the action or of such parties as are present on being satisfied that the absent parties have received due notice.

(3) The Court may either on its own motion or on the application of any party for sufficient cause advance or postpone the day for preliminary investigation.

INSPECTION AND DISCOVERY OF DOCUMENTS

Inspection of documents not disclosed. 422.
(1) Any party to an action may at any time not less than fifteen days before the day fixed for the preliminary investigation apply to Court by motion ex parte to issue notice on any other party to the action to inspect such documents as are in the possession or power of such other party and not referred to in the pleadings filed by such other party.

(2) The party obtaining leave shall serve notice on the party from whom inspection is sought.

(3) The motion shall be supported by an affidavit showing-
(a) of what documents inspection is sought,

(b) that the party applying is entitled to inspect them, and

(c) that they are in the possession or power of the party against whom the application is made.

(4) The party served with notice shall, within six days from the receipt thereof, deliver to the party giving the same, a notice stating a time within three days from the delivery thereof at which the documents, or such of them as he does not object to produce, may be inspected at the office of his registered attorney or some other convenient place, and stating which, if any, of the documents he objects to produce and on what grounds.

(5) Where the party served with notice under subsection (2) omits to give notice of a time for Inspection, or objects to give inspection, or names an inconvenient place for inspection, the party desiring Inspection may apply to the Court, with notice to the opposite party, for an order for inspection in such place and in such manner as to the Court shall seem fit.

(6) Where inspection of any business books is applied for, the party giving inspection may instead of producing the original books, furnish a copy of the relevant entries therein verified by the affidavit of some person who has examined the copy with the original entries, and such affidavit shall state whether or not there are in the original book any and what erasures, interlineations or alterations: Provided that, notwithstanding that such copy has been supplied, the Court may order inspection of the book from which the copy was made.

(7) Where on an order for inspection privilege is claimed for any document by a person or party other than by or on behalf of the State, it shall be lawful for the Court to inspect the document for the purpose of deciding as to the validity of the claim of privilege.

Discovery of particular documents. 423. The Court may, on the application of any party to an action at any time, make an order requiring any other party to state by affidavit whether any specific document is or has at any time been, in his possession or power; and if not then in his possession, when he parted with the same and what has become thereof. Such application shall be made on an affidavit stating that in the belief of the deponent the party against whom the application is made, has or at some time had, in his possession or power the document specified in the application, and that it relates to the matters in question in the action or to some of them.

Objection to inspection or discovery. 424. Where the party from whom discovery or inspection is sought objects to the same, the Court may, if satisfied that the right to the discovery or inspection sought depends on the determination of any issue or question in dispute in the action, or that for any other reason it is desirable that any issue or question should be determined before deciding upon the right to the discovery or inspection, order that such issue or question be determined first, and reserve the question as to the discovery or inspection.

Inspection of Courts of records. 425.
(1) The Court may of its own accord or in its discretion upon the application of any of the parties to an action, send for, either from its own records or from any other Court, the record of any other action or proceedings, and inspect the same.

(2) Every application made under this section shall, unless the Court otherwise directs, be supported by an affidavit, showing how the record is material to the action in which the application is made, and that the applicant cannot, without unreasonable delay or expense, obtain a duly authenticated copy of the record or of such portion thereof as the applicant requires, or that the production of the original is-necessary for the purposes of justice.

(3) Nothing in this section shall be deemed to enable the Court to use in evidence any document which by the law of evidence would be inadmissible in the action.

Material objects. 426. The provisions contained in this Chapter as to documents shall, as far as may be, apply to all other material objects producible as evidence.

Action to which State is party. 427.
(1) In any action to which the State is a party, the State may also be required to make discovery or give inspection of documents.

(2) The provisions of subsection (1) shall not prejudice the right of the State to withhold any document on the ground that in the opinion of a Minister of State the public interest would suffer by such disclosure.

MISCELLANEOUS PROVISIONS

Examination of injured person. 428.
(1) Where the action is one for damages for injury to person it shall be competent to the Court on application made by any party and subject to such terms and conditions as it may determine, to order the injured person to submit himself to medical examination by one or more medical practitioners nominated by the Court. The report or reports upon such examination shall be submitted to Court on or before such date as may be specified. The Court shall cause a copy of each such report to be served on each of the parties forthwith.

(2) It shall be lawful for any party to have one or more medical practitioners of his choice to be present at such examination.

(3) Where the injured person fails or refuses to comply with an order of Court made under subsection (1), the Court shall be entitled to draw all such inferences against such person as in all the circumstances of the case can properly be drawn by reason of such failure or refusal.

(4) Such report or reports may without further proof be used as evidence of the facts stated therein at the trial :

Provided that the Court shall on application made by any party to the action and upon such terms as to costs or otherwise as it may determine order that the medical practitioner be summoned and examined orally on any matter arising from or in connection with the report or any statement of fact therein or any relevant fact which is alleged by any party to have been omitted therefrom.

Admissions. 429.
(1) Any party may by notice in writing served at any time not later than seven days before the day fixed for the preliminary investigation, require any other party to admit any specific fact or facts mentioned in such notice for the purposes Of the action only.

(2) Any admission made in pursuance of such notice may be made by the party called upon to make the admission or by his registered attorney.

(3) Any such admission shall be deemed to be made only for the purposes of the particular action; and the Court may at any time allow any party to amend or withdraw any admission so made on such terms as may be just.

Affidavits. 430.
(1) Where any provision of this Chapter requires evidence to be taken on affidavit, a written statement of facts conforming to the provisions of this section may be sworn or affirmed to by the person professing to make the statement embodied in the affidavit before any Judge, attorney-at-law, Justice of the Peace or Commissioner of Oaths, and the fact that the affidavit appears to be entitled in an action in a Court shall be sufficient authority to such officer to administer the oath or affirmation.

(2) An affidavit shall state sufficient particulars relating to the declarant including his name, age, occupation and address.

(3) An affidavit shall be drawn up in the first person, be fairly and legibly written or typed or printed, and be divided into paragraphs, and every paragraph shall be numbered consecutively, and as nearly as may be, shall be confined to a distinct portion of the subject.

(4) In an affidavit made by two or more declarants the names of the several persons making the affidavit shall be inserted in the jurat except that if the affidavit of all the declarants is sworn or affirmed to at one time it shall be sufficient to state that it was sworn or affirmed to by both or all of the " above-named " declarants.

(5) Every affidavit shall be signed by the declarant in the presence of the officer before whom it is affirmed to or sworn.

(6) In the event of the declarant being a blind or illiterate person, or not able to understand writing in the language of the Court, the affidavit shall be read over or interpreted to him in his own language, and the jurat shall express that it was read over or interpreted to him in the presence of the Court, attorney-at-law, Justice of the Peace or Commissioner, that he appeared to understand the contents, and that he made his mark or wrote his signature in the presence of the Court, attorney-at-law, Justice of the Peace, or Commissioner. When a mark is made instead of a signature, the person who writes the marksman's name against the mark shall also sign his name and address in the presence of the officer before whom the affidavit is affirmed to or sworn.

(7) Every affidavit must be fairly written and must exhibit no erasures or blotting or blanks.

(8) Where any alteration is needed to be made in the original writing before it is sworn or affirmed to, every excision of a word, letter, or figure shall be made by so drawing a line through it as to leave the word, letter, or figure still legible; and every added word, letter, or figure shall be added by interlineation, not by superimposition or alteration; and every excision and interlineation shall be initialled by the officer before whom the affidavit is affirmed to or sworn.

(9) An affidavit shall be confined to the statement of such facts as the declarant is able of his own knowledge and observation to testify to. If the Court so directs, statements of his belief may be admitted, provided that the grounds for such belief are set forth in the affidavit.

(10) If an affidavit unnecessarily sets forth matters of hearsay or argumentative matter, or copies of, or extracts from, documents the party filing the same shall be liable in costs.

(11) The Court may order to be struck out from any affidavit any matter which is scandalous, and may order the costs of any application to strike out such matter to be paid by the declarant.

(12) The Court may receive any affidavit sworn or affirmed to for the purpose of being used in any cause or matter, notwithstanding any defect by mis-description of parties or otherwise in the title or jurat or any other irregularity in the form thereof.

Service of legal. 431.
(1) A legal document required to be served by one party on another shall, unless otherwise provided. be deemed to be served-
(a) if posted in a registered envelope addressed to the registered address of the person to be served and the time at which the document so posted would be delivered in the ordinary course of post shall be considered the time of service thereof,

(b) if left at the registered address of the person to be served, with any person resident at or belonging to such address.

(2) The service of a legal document by Court shall be effected as nearly as may be in the manner prescribed for the service of summons, and the time at which the notice so posted would be delivered in the ordinary course of post shall, unless otherwise provided, be considered as the time of service thereof.

(3) In an appropriate case, the Court may make such order for substituted service or for service by public advertisement or otherwise, as to it may appear proper.

(4) Unless otherwise provided, where any legal document is required to be served on or delivered to one party by another party to the action, the original of such document may be either delivered or sent by registered post to the Registrar and at the same time a duplicate copy thereof may be served on or delivered to the opposite party.

Postponements, adjournments and extensions of time. 432.
(1) Where a day is fixed or time appointed for doing any act or taking any proceeding by a party to the action, the Court may, from time to time, if sufficient cause is shown, fix another day or enlarge or abridge the time appointed, upon such terms, if any, as to it may seem proper.

(2) The day may be refixed or the time enlarged although the application for the same is not made until after the expiration of the day or time fixed or appointed.

(3) The Court may, for sufficient cause, either on the application of the parties or of its own motion, advance, postpone or adjourn the preliminary investigation or the trial to any other day, upon such terras as to costs or otherwise as to it shall seem proper.

Computation of time. 433.
(1) Where the doing of any act or the taking of any proceeding in Court is required by this Chapter to be done or taken within a limited time from, after or of any date or the happening of any event, the date or the day of the event shall be excluded from the computation of such time.

(2) Where the Court orders or directs an act to be done or step to be taken without specifying a period of time within which such act or step is to be done, or taken, such act or step shall be done or taken within ten days of the date of the order or direction.

(3) Where any particular number of days, not expressed to be clear days, is prescribed by this Chapter, the same shall be reckoned exclusively of the first day and inclusively of the last day.

(4) Service of legal documents other than by registered post effected after four in the afternoon on any week day or at any time on a Saturday or Sunday shall, for the purpose of computing any period of time subsequent to such service, be deemed to have been effected on the following working day.

Consolidation of actions. 434.
(1) Two or more actions in which the questions of law or fact in issue are substantially the same, may be consolidated by order of the Court upon such terms as to it shall seem fit.

(2) The Court, if it thinks fit, may order several actions to be tried at the same time, and on the same evidence, or the evidence in one action to be used as evidence in another, or may order one of several actions to be tried and the other actions to be stayed to abide the result, subject to the power of the Court at any time thereafter to try another of the actions so stayed where the selected action fails to be a real trial of the issues involved.

PRELIMINARY INVESTIGATION

Preliminary investigation. 435.
(1) At the preliminary investigation, the Court shall have power in any order as to it shall appear convenient or proper, and as often as to fit.

(2) At the preliminary investigation the Court may. In the exercise of the powers conferred by the preceding subsection, make any such order, upon the agreement of the parties, as to it may appear fit. including-
(a) an order that an affidavit be substituted for the oral examination-in-chief of a witness;

(b) an order to have any question of fact determined by a written report from a person having special and independent knowledge of that fact;

(c) an order for the appointment of an independent Court expert to inquire and report on any question of fact or opinion.

(3) At the preliminary investigation the Court shall record only-
(a) the admissions by parties of facts or documents:

(b) the agreement of parties in regard to any matter;

(c) the agreement of parties to accept and abide by-
(i) any decision or determination of the Judge arrived at in any manner or in such manner as may be agreed upon between the parties and the entering of judgment in accordance with such decision or determination.

(ii) the decision or determination of the Judge on all or any issues of fact or law and the entering of judgment in accordance with such decision or determination at the appropriate stage.

(4) The decision or determination referred to in subparagraphs (i) and (ii) of paragraph (c) of subsection (3) shall for all purposes be deemed to be final and conclusive as between such parties.

(5) Upon the material set out in the pleadings, and information and material gathered at the preliminary investigation, and after such examination of any of the parties to the action as may appear necessary to ascertain upon what material propositions of fact or shall seem expedient, to question the parties, to inspect any documents or the subject-matter of the action and to do all such other acts as may appear to it necessary or desirable, with a view to the just, expeditious and Inexpensive disposal of the action law the parties are at variance, the Court shall settle the issues on which the right decision of the case appears to it to depend and make order that the action shall proceed to trial on such issues.

(6) Where issues both of law and of fact arise in the same action and the Court is of opinion that the case may be disposed of on the issues of law only, it may set down such issues of law for trial first, and adjourn the preliminary investigation to determine the issues of fact arising in the action until after the issues of law have been adjudicated upon.

(7) All orders made by Court and all matters entered of record by consent of parties at the preliminary investigation shall control the subsequent course of the action unless modified at the trial to prevent manifest injustice.

EXPLANATION 1. An admission of fact made by a party and entered of record cannot subsequently be withdrawn at the trial. But, if for instance, it is shown that the admission was made on the faith of an incorrect translation of a document, the Court may permit the party to withdraw the admission of fact upon such terms as to costs and adjournment of trial if need be. 2. Where the issues upon which the trial of the action is to proceed have been framed by Court, no amendment thereto shall be made at the trial, save in exceptional circumstances and unless the Court is satisfied that a refusal to permit such amendment would result in manifest injustice to the party applying for the amendment. 3. Where during the progress of the trial, the evidence discloses facts, upon which fresh issues arise for determination, additional issues may be framed where the Court is satisfied that manifest injustice will otherwise result.

Date of trial. 436.
(1) After the issues are settled, the Court shall proceed to try such issues immediately or may fix a day for the trial of the action.

(2) When a day has been fixed for trial it shall not be altered save in exceptional circumstances upon application to Court after due notice to all parties.

(3) Where an action which is fixed for trial is settled, it shall be the duty of the parties to intimate to Court without delay notice of the fact and the terms of such settlement.

WITNESSES .

Issue of summons . 437. If any party, after the trial date has been fixed, applies to Court for the issue of summons to compel the attendance of any witness to give evidence or to produce a document, the Court shall issue such summons unless 'for reasons to be recorded the Court deems it unnecessary so to do.

Payment of witness. 438.
(1) The party applying for a. summons shall, before the summons is granted-
(a) pay into Court, or

(b) deposit with his registered attorney,

such sum of money as is prescribed by rules of Court to defray the travelling and other expenses of the person summoned, in respect of one day's attendance in Court.

(2) No such payment or deposit shall in any case be a condition precedent to the issue of a summons, but where summons issues without such payment or deposit having being made, the witness shall be informed on the face of the summons that such is the case, and that it is not obligatory on him to attend.

Witnesses not disclosed in pleadings. 439. Where the Court at any time thinks it necessary to examine any person who has not been named as a witness, the Court may of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession.

Summons on witness. 440.
(1) Every summons to a person to give evidence or produce a document, shall be served in the manner prescribed for the service of summons on the defendant.

The service shall in all cases be made a sufficient time before the time specified in the summons for the attendance of the person summoned, to allow him a reasonable time for preparation and for travelling to the place at which his attendance is required.

(2) A person may be summoned to produce a document without being summoned to give evidence; and any person summoned merely to produce a document shall be deemed; to have complied with the summons if he causes such document to be produced, instead of attending personally to produce the same.

(3) Every summons for the attendance of a person to give evidence or produce a document shall specify the time and place at which he is required to attend, and also whether his attendance is required for the purpose of giving evidence or to produce a document, or for both purposes; and any particular document which the person summoned is called on to produce shall be described in the summons with reasonable accuracy.

Attendance of witness. 441.
(1) Whoever is summoned to appear and give evidence in an action shall attend at the time and place named in the summons for that purpose, and whoever is summoned to produce a document shall either attend to produce it, or cause it to be produced, at such time and place.

(2) No person so summoned and attending shall depart unless and until-
(a) he has been examined or has produced the document and the Court has risen; or

(b) he has obtained the Court's leave to depart.

(3) Where a witness has given evidence, or has been permitted by Court to depart, or where the Court has risen for the day, and his expenses have not been paid prior thereto, a requisition for the amount payable shall, where the expenses have been paid into Court, be issued to him by the Registrar; and where the expenses are in deposit with a registered attorney, he shall pay the same to the witness.

(4) Where it is necessary to detain the person summoned for a longer period than one day, the Court may from time to time order the party at whose instance he was summoned to pay into Court or deposit with his registered attorney such sum as is sufficient to defray the expenses of his detention for such further period; and in default of such deposit being made, may order such sum to be levied by sequestration and sale of the movable property of the party at whose instance he was summoned; or the Court may discharge the person summoned without requiring him to give evidence; or may both order such levy and discharge such person as aforesaid.

Non-compliance with summons. 442.
(1) If any person on whom a summons to give evidence or produce a document has been served fails to comply with the summons, or if any person so summoned and attending departs in contravention of the provisions of section 441, or if any person who has been noticed or directed by Court to appear before it fails to comply with the notice or direction, the Court may order him to be arrested and brought before the Court.

(2) No such order shall, however, be made when the Court has reason to believe that the person so failing had a lawful excuse for such failure.

(3) When any person so arrested and brought before the Court fails to satisfy it that he had a lawful excuse for not complying with the summons, notice or direction, he shall be deemed guilty of the offence of contempt of Court and may be punished therefor.

(4) Where any person so arrested and brought before the Court cannot, owing to the absence of the parties or any of them, give the evidence or produce the document which he has been summoned to give or produce, the Court may require him to give reasonable bail or other security for his appearance at such time and place as it thinks fit, and on such bail or security being given may release him, and in default of his giving such bail or security may remand him to be detained in jail as a civil prisoner, and the expenses of such detention shall be paid by the party at whose instance such remand is made.

(5) Where any person so failing to comply with- a summons, notice or direction, absconds or keeps out of the way, so that he cannot be arrested and brought before the Court, the provisions of section 443 shall, mutatis mutandis, apply.

Non-service of summons. 443.
(1) Where it is reported that the summons for the attendance of a person, either to give evidence or to produce a document, cannot be served, the Court may take evidence touching the non-service.

(2) Upon being satisfied that such evidence or production is material, and that the person for Whose, attendance the summons has been issued is absconding, or keeping out of the way for the purpose of avoiding the service of summons, the Court may in its discretion either issue a warrant for the apprehension of such witness or may issue a proclamation requiring him to attend to give evidence, or produce the document, at a time and place to be named therein; and a copy of such proclamation shall be affixed on the outer door of the house in which he ordinarily resides.

(3) Where such person does not attend at the time and place named in such proclamation, the Court may in its discretion, at the instance of the party on whose application the summons was issued, make an order for the sequestration of the property of the person whose attendance is required, to such amount as the Court thinks fit.

(4) Where, at any time after the sequestration of his property, such person appears and satisfies the Court-
(a) that he did not abscond or keep out of the way to avoid service of summons; and

(b) that he had not notice of such proclamation in time to attend at the time and place named therein,

the Court shall direct that the property be released from sequestration and shall make such order as to the costs of the sequestration as it thinks fit.

(5) Where such person does not appear, or having appeared fails to satisfy the Court that he did not abscond or keep out of the way to avoid service of summons, and that he had not notice of the proclamation in time to attend at the time and place named therein, the Court may impose upon him such fine, as the Court thinks fit, having regard to his condition in life and all the circumstances of the case; and may order the property sequestered or any part thereof to be sold for the purpose of satisfying all costs incurred in consequence of such sequestration, together with the amount of the said fine, if any.

(6) A fine imposed under this section shall be recovered in the manner prescribed in Chapter II of this Law.

(7) If the person whose attendance is required pays into Court the costs and the fine as aforesaid, the Court shall order the property to be released from sequestration.

THE TRIAL

Evidence de bonaesse. 444.
(1) Where a witness is about to leave the jurisdiction of the Court or where there are reasonable grounds for believing that the evidence of the witness may not be available at the trial owing to failing health or old age or other ground, or where other sufficient cause is shown to the satisfaction of the Court why the evidence of the witness should be taken immediately, the Court may upon the application of any party or of the witness, at any time after the institution of the action and before trial, take the evidence of such witness in manner provided in this Chapter.

(2) The application may be made ex parte by way of motion, supported by affidavit verifying the facts either on knowledge or on information and belief.

(3) Where the application has been allowed ex parte, the opposite party may with notice to the applicant by way of motion apply to have the order set aside.

(4) Where such evidence is not taken forthwith, and in the presence of the parties, such notice as the Court thinks sufficient of the day fixed for the examination shall be given to the parties.

(5) The evidence so taken may be read at any hearing of the action, provided that the witness cannot then be produced.

Trial inter partes. 445.
(1) Trial inter partes commences when, on the day fixed for trial, on the Court calling the case to be proceeded with,-
(a) the plaintiff and defendant are present either in person or by registered attorney, and

(b) some proceeding is taken in the case, the only result of which is not merely to postpone the trial to another day. Illustration 1. An action is fixed for trial after framing of issues at the preliminary investigation. On the day of trial, the Court takes up the case for hearing. The plaintiff and the defendant are present. The plaintiff applies for a postponement as he is not ready, The Court refuses the application. The trial inter partes has commenced, and whither the plaintiff takes part in the proceedings thereafter or not the decree entered would be one inter partes; but if the application for postponement is granted, trial inter partes does not begin. If, however, any party having the right to begin has started to adduce evidence and either party applies for a postponement which is allowed, the trial inter partes has begun as a postponement is not the only result of the proceedings had. 2. On the day fixed for trial neither party is ready and both apply for postponement. The Court refuses the application. On the issue either framed previously or arising upon the pleadings the onus of proof is cast on the defendant but he fails to discharge the burden. The Court enters judgment for plaintiff. The judgment is one entered inter partes. 3. Counsel for plaintiff moves for a postponement on the day fixed for trial and in so doing addresses the Court on the facts with a view to strengthen the application and the need for the postponement. The Court allows the application. Trial inter partes does not begin.

(2) When the trial has commenced, the hearing of the action shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the hearing to be necessary for reasons to be recorded and signed.

Party having right to begin to state his case. 446. The party having the right to begin shall state his case, giving the substance of the facts which he proposes to establish by his evidence.

Explanation (1) The plaintiff has the right to begin, unless the defendant admits the-facts alleged by the plaintiff, and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief he seeks, in which case the defendant has the right to begin. (2) The case enunciated by a party must reasonably accord with such party's pleadings, the proceedings had at the preliminary investigation and the issues framed. (3) No party shall be allowed to make at the trial a case materially different from that placed on record and which his opponent is prepared to meet. (4) The facts proposed to be established must in the whole amount to be much of the material part of his case as is not admitted by his opponent.

Party having right to began shall produce, evidence. 447.
(1) After stating his case, the party having the right to begin shall produce his evidence. He shall call his witnesses and by questions elicit from each of them the relevant and material facts to which such witness can speak of his own observation. Every such witness shall be tendered for cross-examination. Any witness so cross-examined may be re-examined.,

(2) Whenever the evidence of a witness is submitted in the form of an affidavit, such witness shall be tendered for cross-examination unless the other parties to the action had at any time before the trial intimated to the Court and to the party submitting such affidavit, that the attendance of such witness be dispensed with:

Provided that no affidavit may be submitted unless a copy thereof shall have been served on each of the other parties at least forty-eight hours before the trial.

(3) Nothing in this section shall be deemed to prevent a witness from stating hearsay or giving any opinion, where the hearsay or opinion is a relevant fact in the case.

Questions by Court. 448.
(1) The Court may at any time, put and interpose such questions to a witness as It may consider conducive to the ends of justice.

(2) The answers to questions put by Court shall be made to appear on the face of the record as having been given to the Court.

(3) The Court may in its discretion recall any witness whose testimony has been taken for further examination or cross-examination whenever in the course of the trial the Court considers it necessary for the ends of justice to do so.

Recording of evidence. 449.
(1) The evidence of each witness shall be taken down in writing by the Judge, or in his presence and under his personal direction. Such evidence shall be taken down ordinarily in the form of a narrative.

(2) The Court may of its own motion or on the application of any party record any particular question and answer, or any objection to any question, if there appears to the Court any special reason for so doing.

(3) When any question put to a witness is objected to, and the Court allows the same to be put, the Judge may in his discretion record the question, the answer, the objection and the name of the partly making it, together with the decision of the Court thereon,

(4) When on objection made the Court refuses to allow the question to be put, the Judge shall, on the request of the questioner, record the question, the objection, and the name of the party making it together with the decision of the Court thereon.

(5) The Court may record such remarks as it thinks material respecting the demeanour of any witness while under examination.

Witnesses to be kept out of Court. 450.
(1) The witnesses shall be kept out of Court and of hearing, and no person who has remained in Court or within hearing shall be permitted to give evidence unless he is called to prove some fact which has incidentally become essential in the course of the trial, and the necessity of which could not reasonably have been anticipated. Every witness who has been examined shall be kept separate from, and shall be allowed no communication with, those who still remain to be examined: Provided that it shall be lawful for the Court in its discretion to allow any witness to be examined, if it shall think such examination conducive to the ends of justice, notwithstanding that such witness shall have remained in Court or within hearing.

(2) It shall be lawful for the Court in its discretion to allow an expert witness whose presence it considers necessary or desirable for the proper presentation of the case of a party to remain in Court while the witnesses of the party calling the expert or of the opposite party give evidence.

(3) Where the State, a company, board or corporation is a party, it shall be lawful for the Court to permit a State officer or an officer of such company, board or corporation to remain in Court during the trial, notwithstanding that such officer is a witness in the case.

(4) Where a party to an action is out of Sri Lanka, it shall be lawful for the Court to permit any person who has knowledge of facts relating to the action to remain in Court during the trial on behalf of such absent party.

Opposing party to state his case. 451.
(1) When the party beginning has stated his case and adduced his evidence in accordance with the foregoing provisions, then the opposing party or parties (if there are more than one who have distinct cases) shall state his or their case or cases, and in the latter event in succession, unless the Court otherwise directs.

(2) When the case of each opposing party has been so stated, each such party shall produce his evidence, and the same shall be received and dealt with precisely as in the case of the party beginning.

Evidence in rebuttal. 452. Where there are several issues, the burden of proving some of which lies on the opposing party, the party beginning may at his option either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the opposing party; and in the latter case the party beginning may produce evidence on those issues after the opposing party has produced all his evidence.

Addresses. 453.
(1) The opposing party or where there are more than one, each opposing party in reverse order, may then address the Court generally on the whole case.

(2) The party beginning may then reply generally on the whole case.

Written submissions. 454. It shall be competent for the Court at any stage where any party is entitled to make submissions, including the stage at which addresses are provided for under section 453, to direct the parties to make written submissions, and to limit the duration of oral submissions.

Evidence may be taken on commission. 455.
(1) The Court may at any time, for sufficient reason, order that any particular fact may be proved by a deposition taken on commission, instead of by the testimony of a witness given viva voce before it, or that the deposition taken on commission of any witness may be produced at the hearing of the action on such conditions as the Court shall think reasonable.

(2) In the event of an order having been made for the proof of facts by deposition taken on commission on the ground that the witness is either not in Sri Lanka or that being in Sri Lanka he cannot be produced in Court for viva voce examination, the Court may, nevertheless, at the instance of any party, order the attendance of the deponent at the hearing of the action for viva voce cross-examinantion, if he is in Sri Lanka and can be produced.

Tender of documents in evidence. 456.
(1) Every document or writing which a party intends to use as evidence against his opponent shall be formally tendered by him in the course of proving his case-
(a) at any time, if it is admitted by his opponent, or

(b) at the time when its contents or purport are first immediately spoken to by the witness.

(2) No document or writing shall be placed on record unless it has been proved or admitted under the provisions of this Chapter or in accordance with the law of evidence for the time being in force.

(3) Every document so proved or admitted shall be endorsed with some distinguishing mark, number or letter and such document shall thereafter, when necessary, be referred to throughout the trial by such mark, number or letter.

(4) The Court may at any stage of the action, reject any document which it considers irrelevant or otherwise inadmissible, recording the ground for such rejection.

(5) Every document which has been admitted in evidence shall form part of the record of the action.

Listed documents to be admitted with out proof. 457.
(1) Every document named in a list of documents filed by any party shall be prima facie evidence, if produced from proper custody-
(a) that the document is what it purports to be, and

(b) that any writing appearing on the document is that of the person or persons whose writing it purports to be,

and shall be admitted in evidence without proof thereof, except where notice that any such document or any class of such document is challenged as to its authenticity is given to the party listing such document at or before the preliminary investigation.

(2) Where a document is admitted in terms of subsection (1), the contents of such document shall be received as evidence of the facts stated therein (without calling the maker as a witness), provided that the statements contained therein would be admissible if given in evidence orally by the maker of the document.

(3) Where the authenticity of a document referred to in this section is challenged, the costs of proving the authenticity thereof shall, irrespective of the decision of the case, be borne by the party challenging such authenticity, unless the Court certifies that in all the circumstances of the case legal proof of the authenticity was properly and reasonably called for.

Proof of documents. 458.
(1) Before a witness identifies a document, he should state the grounds of his knowledge with regard to it.

Illustration if the witness speaks to the act, or factum, of signature he should first explain concisely the occurrences which led to his being present on the occasion of the signing; and if he recognizes a signature on the strength of his knowledge of the supposed signer's handwriting, he should first state the mode in which this knowledge was acquired.

(2) Where a witness professes to be able to recognize or identify handwriting, the Court shall test his capacity to do so, unless the opposite party admits it. Where it appears to the Court that the witness was not in fact present at the time when the document was signed or the writing was made, or is not reasonably competent to identify the document or the handwriting, the Court shall not permit him to give evidence of identification in regard to such document or handwriting.

(3) The signature of a person which purports or which appears by the evidence to have been written by another shall not be held to have been proved until both the fact of the writing and the authority of the writer to write the name on the document as a signature have been proved. In the case of an illiterate person who cannot read, it must also be proved that at the time when his name was written on, or his mark put to, the document, he understood the contents of it. Where the name of such person shall have been written on, or his mark put to, any document for the purpose merely of attesting the signature of another, it shall not be necessary to prove that he understood the contents of the document, but it shall be sufficient to prove that he was aware of the purpose for which his name was so written or his mark so put, and that the person whose signature he purports to attest was known to him.

(4) Where the document or writing is an original already filed "in the record of some action, or the deposition of a witness made therein, it shall previously be procured from that record by means of, and under an order from, the Court. Where such document or writing is a portion of the pleadings, or a decree or order of Court made in another action, it shall not generally be removed therefrom, but a certified copy thereof shall be used in evidence instead. It shall not be competent for the Court to admit in evidence the entire body of proceedings and papers in another action indiscriminately. Each of the constituent documents, pleadings or processes in the former action which may be required in the pending action shall be dealt with separately.

(5) Where the document purports on the face of it to be so old that proof of the actual execution is not required by law, it is not proved until sufficient evidence has been given to prove both that it comes into Court from the proper custody, and that it has continued to be in proper custody throughout the period during which it can be reasonably accounted for.

(6) When the document, the admission of which is objected to, is put forward as the copy of an absent original, it is not proved until both such evidence as is sufficient to prove the correctness of the copy, and also such evidence as would be sufficient to prove the original, had it been tendered instead of the copy, has been given.

Note The question whether a copy of a document is admissible in evidence between the parties in the place of the original is quite distinct from the question whether the document (original or copy) is admissible as evidence relevant to the issue under trial.

(7) Where a document admitted in evidence in the action is an entry in a letter-book or account-book in current use, to which the provisions of Chapter VI of the Evidence Ordinance do not apply, the party on whose behalf the book is produced may furnish a copy of the entry. Where such document is an entry in a book belonging to a person other than a party on whose behalf the book is produced, the Court may require a copy of the entry to be furnished-
(a) where the book is produced on behalf of a party, then by that party; or

(b) where the book is produced in obedience to an order of the Court acting of its own motion, then by either or any party. Where a copy of an entry is furnished under this subsection the Court may, after causing the copy to be examined, compared and certified, mark the entry and cause the book in which it occurs to be returned to the person producing it.

Return of documents. 459.
(1) All documents produced at the hearing and not proved or admitted shall be returned to the parties respectively producing them unless the Court sees sufficient cause to direct any document or book produced before it to be impounded and kept in the custody of an officer of the Court for such period and subject to such conditions as the Court thinks fit.

(2) When an action has been disposed of, or when the time for preferring an appeal from the judgment has elapsed, or if an appeal has been preferred, then after the appeal has been disposed of, any person, whether a party to the action or not, desirous of receiving back any document produced by him in the action and placed on the record, shall, unless the document is impounded, be entitled to receive back the same.

(3) A document may, however, be returned at any, time if the person applying for such return delivers to the proper officer a certified copy of such document to be substituted for the original where the original is not essential.

(4) No document which by force of the decree has become void or useless shall in any case be returned without a special order of Court.

(5) On the return of a document which has been admitted in evidence, a receipt shall be given by the party receiving it, in a receipt book to be kept for the purpose.

Translation of documents. 460. No translation of any document tendered in evidence in any Court shall be permitted to be read as a translation of such document, unless the same shall be signed-
(a) by a Government sworn translator, or by a sworn translator or interpreter of Court, or

(b) in the case of a document in a foreign language of a country from which is accredited an ambassador, envoy, minister, resident charge 'affaires, consul, or other representative to the Republic of Sri Lanka, by any such representative, who shall subscribe that he is an official representative of his country and that the translation is, to the best of his knowledge and belief, a true and faithful translation thereof.

Power of Court to inspect. 461. The Court may at any stage of an action in the presence of, or after reasonable notice to, the parties or their registered attorneys, inspect any property or thing concerning which any question may arise.

Actions of account. 462.
(1) Where an interlocutory order is made directing an account to be taken, or giving leave to a party to falsify or to surcharge an account, the Court shall appoint a day for the filing of the account or of the document of falsification or surcharge, and also a subsequent time for the opposing party to file objections thereto, and again a later time for the hearing and determination of the issue between the parties arising out of the objections, and for the finding on the footing of such determination of the state of the account directed to be taken.

(2) The account directed to be taken, before it is filed, must be verified on oath or affirmation by the accounting party.

(3) Objections to the account may be filed by any party concerned in the right taking of the accounts, and may be directed as well to adding new entries or enhancing existing entries on the debit side of the accounting party, as to falsifying the account given by him in any particular.

(4) The trial of the issues arising out of the objections to the account shall conform, as nearly as may be, in regard to the order and method of proceeding and the taking of evidence to the procedure prescribed for the trial of a regular action.

(5) The day for filing the account directed to be taken, and the times for filing the objections thereto, and for the hearing and determination of the issues arising therefrom shall respectively be fixed with due regard to the circumstances of the matter and the situation of the parties therein, so that reasonable opportunity may be afforded to the accounting party to make out his account, to the opposing party to examine the same and to satisfy himself in respect to its correctness, and to all parties to prepare for trial.

(6) In the event of the accounting party not duly filing his account, and not satisfying the Court that there is just cause for his default, the Court shall proceed with the hearing of the matter of the account and adjudicate upon the same on the day appointed therefor by finding the actual state of the account directed to be taken upon such materials as may be furnished by the opposing party:

Provided, however, that any reasonable extension of time which may be bona fide required by any party, either for filing accounts or objections thereto, or for preparing for trial, may be granted by the Court on such terms as it may think proper, if such extension of time is applied for at the earliest possible moment, upon materials showing good and sufficient ground, and upon notice to the other parties concerned.

(7) Where an interlocutory order is made in an action for an inquiry into facts, the provisions of the preceding subsection shall, mutatis mutandis, apply to the making of the order, the filing of the statement of facts and of the objections thereto, or counter-statement of facts, and to the trial of the issues arising therefrom respectively, so nearly as reasonably may be.

JUDGMENT

Judgment to be pronounced. 463.
(1) The Court, upon the evidence which has been duly taken, or upon the facts admitted and after the parties have been heard in the manner provided in this Chapter, shall pronounce judgment in open Court, either at once or on some future day of which notice shall be given to the parties or their registered attorneys at the termination of the trial.

(2) The judgment shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision.

(3) The judgment shall be signed by the Judge whose judgment it is and shall not, after it has been pronounced, be altered or added to save as provided in this section.

(4) The judgment shall be pronounced and dated in open Court either by the Judge Whose judgment it is or by any other Judge of the same Court

(5) The judgment may be pronounced either by reading the whole of it or by stating shortly the effect of it as regards the disposal of the action and the costs thereof.

(6) The Court may at any time, after reasonable notice to all interested parties, either on its own motion or on that of the parties, correct any clerical or arithmetical mistake in any judgment, or order, or any error arising therein from any accidental slip or omission.

Decree to be drawn up. 464.
(1) As soon as may be after the expiry of the appealable period, if no appeal is lodged, a formal decree bearing the same date as the judgment shall be drawn up by the Registrar and signed by the Judge.

(2) The decree-
(a) shall be in the prescribed form with such variations as circumstances may require;

(b) shall specify in clear words the order which is made by the judgment in regard to the relief granted or other determination of the action;

(c) shall state by what parties and in what proportions costs are to be paid.

(3) A decree may be signed by a Judge other than the Judge pronouncing the judgment.

(4) The Court may, at any time, either of its own motion or on the application of any party, amend the decree in order to bring it into conformity with the judgment.

Classification of decree. 465. A decree may-
(1) command the person against whom it operates-
(a) to pay money,

(b) to deliver movable property,

(c) to yield up possession of immovable property,

(d) to grant, convey or otherwise pass from himself any right to, or interest in, any property, or

(e) to do any act not falling under any one of the foregoing heads; or

(2) enjoin that person not to do a specified act, or to abstain from specified conduct or behaviour; or

(3) declare a right or status whether existing or contingent and whether or not any substan-tive relief or remedy is afforded.

Decree relating to immovable property. 466. Where the decree relates to immovable property, the property affected thereby shall be described therein by the boundaries and in such other manner by reference to surveys, plans or otherwise as may secure, as far as possible, correctness of identification, and in such form as to enable such decree to be registered under the Registration of Documents Ordinance.

Decree relating to movable property. 467. Where the decree is for the delivery of movable property, it shall state the amount of money to be paid as an alternative, if delivery cannot be had.

Interest on money to be decreed. 468.
(1) Where the decree is for the payment of a sum of money to the plaintiff, the Court may in the decree order interest to be paid according to the rate (if any) agreed on between the parties by the instrument sued on, or, in the absence of any such agreement, at the rate of nine per centum per annum to be paid on the principal sum adjudged from the date of the action to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the action, with further interest at the rate of nine per centum per annum on the aggregate sum so adjudged, from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit.

(2) Where the decree is silent with respect 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 deemed to have refused such interest, and a separate action therefor shall not lie.

(3) Where the action is for the recovery of damages based whether on contract or tort, the Court may, if it thinks fit, order interest to be paid at a rate not exceeding nine per centum per annum on the whole or any part of the damages awarded, for the whole or any part of the period between the date when the cause of action arose and the date of judgment.

Specific performance may be ordered. 469. Where the action is for damages for breach of contract, if it appears that the defendant is able to perform the contract, the Court, with the consent of the plaintiff, may decree the specific performance of the contract within a time to be fixed by the Court, and in such case shall award an amount of damages to be paid as an alternative if the contract is not performed.

Payment in initial merits may be decreed. 470.
(1) In all decrees for the payment of money, unless any law otherwise provides, the Court may order that the amount decreed shall be paid in instalments, with or without interest, and the Court may in its discretion impose such terms as it may think fit as to giving security for the payments so to be made.

(2) On failure to pay the first or any other instalment, the whole amount or any balance then due shall become immediately payable.

Decree to state balanced after set-off amounts allowed. 471.
(1) Where the defendant has been allowed to set off any demand against the claim of the plaintiff, the decree shall state what amount is due to the plaintiff and what amount is due to the defendant, and the mandatory part of the decree shall be for the recovery of any balance which shall on that statement appear to be due to either party.

(2) The decree of the Court with respect to anything awarded to the defendant on any matter on which the defendant obtains judgment by set-off or in reconvention shall have the same effect, and be subject to the same rules, as if such thing had been claimed by the defendant in a separate action against the plaintiff.

Mesne profits. 472.
(1) Where the action is for the recovery of possession of immovable property yielding rent or other profit, the Court may, whenever the prayer of the plaint asks for damages in respect of mesne profits or rent, provide in the decree for the payment of money in lieu of mesne profits or rent in respect of such property from the date of the institution of the action until the delivery of possession to the party in whose favour the decree is made, with interest thereon at such rate not exceeding nine per centum as the Court thinks fit.

Explanation Mesne profits " of property mean those profits which the person in wrongful possession of such property actually received, or might with ordinary diligence, have received therefrom.

(2) Where the action is for the recovery of possession of immovable property and for mesne profits which have accrued thereon during a period prior to the institution of the action, the Court may either determine the amount and make an order for the payment thereof additional to and embodied in the decree itself, or may pass a decree for the property and reserve the inquiry into the amount of mesne profits to be entered upon after the execution of the decree for the property, as may appear most convenient.

Actions for preemption. 473. Where the action is to enforce a right of pre-emption in respect of a particular sale of property, and the Court finds for the plaintiff, if the amount of purchase money has not been paid into Court, the decree shall specify a day on or before which it shall be so paid, and shall declare that on payment of such purchase money, together with the costs (if any) decreed against him, the defendant shall execute a deed of conveyance in favour of the plaintiff at the cost and expense of the plaintiff and that the plaintiff shall obtain or be delivered possession of the property, but that if such money and costs are not so paid on or before such day or any extension thereof which shall have been allowed for good cause shown, the action shall stand dismissed with costs.

Action for dissolution of partnership. 474. Where the action is for the dissolution of partnership or the taking of partnership accounts, the Court before entering decree may pass order declaring the proportionate shares of the parties, fixing the day on which the partnership shall stand dissolved, or be deemed to have been dissolved, and directing such accounts to be taken and other acts to be done as it thinks fit.

Actions between principal and agent. 475. Where the action is for an account of pecuniary transactions between principal and agent, and in all other actions not herein before provided for, where it is necessary, in order to ascertain the amount of money due to or from any party that an account should be taken, the Court shall before entering decree make an order directing such accounts to be taken as it thinks fit.

Decree or order postponing hearing. 476. Where a decree or order made at the hearing of the action is such as to have the effect of postponing the further hearing and the final determination of the action, as, for instance, a decree for the taking of accounts, or an order for the issue of a commission to take evidence, or of a commission to divide by metes and bounds, such a decree or order shall specify the time at which the further hearing of the action shall be proceeded with.

Piecemeal judgment. 477. Where the claim which is made in the plaint, or is set up in the answer, is such that the action cannot be disposed of, or a complete and final decree made in the matter thereof between the parties without the taking of accounts, or the making of inquiry into facts, or the demarcation of land, or the realization of assets, as the case may be, it shall be competent to the Court to adjudicate piecemeal upon the matters in issue and in such adjudications to make interlocutory decrees or orders of a final character between the parties at hearing had by successive adjournments; and, in particular, to take any accounts, and to make an inquiry into facts separately from the remaining matter of the action on a day to be appointed for the purpose, and to issue the necessary directions or commissions for the demarcation of land or realization of assests, and adjourn the hearing from time to time for further orders or directions, or for final determination, to such dates as may be necessary or convenient to enable the accounts to be taken, the inquiries made, and the demarcation of land or realization of assets, as the case may be, to be effected, in the interval. In any such case the order of adjournment for the purpose of the accounts being taken, inquiries made, or commissions or directions issued, must adjudicate (either by consent or upon admissions of the parties, or upon other sufficient evidence) upon so much of the rights of, or of the fiduciary relations between, the parties, which are at issue in the action, as may suffice to give rise to the liability of the respective parties affected by the order to account, or may serve to render the inquiries, directions or commissions thereby directed proper and necessary.

Decree or copy to be primary evidence of decision. 478.The decree or such certified copy thereof shall constitute the sole primary evidence of the decision or order made by the Court.

COSTS.

Costs . 479. Costs include the whole of the expenses necessarily incurred by either party on account of the action and in enforcing the decree passed therein^ such as the expense of stamps, of summoning defendants and witnesses, and of other processes, or of procuring copies of documents, fees and charges of attorneys-at-law and of expert witnesses, such just and reasonable charges as appear to have been properly incurred in procuring evidence and the attendance of witnesses, and expenses of commissioners either in taking evidence or in local investigations, or in investigations into accounts; and all other expenses of procuring and adducing necessary evidence.

Court may give or reserve costs. 480.
(1) When disposing of any application or action, whether of regular or of summary procedure, the Court may, unless elsewhere in this Chapter or in any other law otherwise directed, give to either party the costs of such application or action, or may reserve the consideration of such costs for any future stage of the proceedings.

(2) The Court shall direct by whom the costs of each party are to be paid, and whether in whole or in what part or proportion.

(3) The Court shall have full power to give and apportion costs of every application and action in any manner it thinks fit, and the fact that the Court has no jurisdiction to try the case is no bar to the exercise of such power:

Provided that if the Court directs that the costs of any application or action shall not follow the event, the Court shall state its reason in writing.

(4) The Court may direct that the costs payable to one party by another shall be set off against a sum which is admitted or is found in the action to be due from the former to the latter.

(5) The Court may give interest on costs at any rate not exceeding nine per centum, and may direct that costs, with or without interest, be paid out of, or charged upon, the subject-matter of the action.

(6) An order for the payment of costs only is a decree for payment of money within the meaning of section 470 as to payment in instalments.

Registered attorney appears ring for several parties entitled to one set of costs only. 481. Where the same registered attorney appears for several plaintiffs or defendants, costs chargeable as between party and party shall not be heavier than if such registered attorney had appeared for a sole plaintiff or defendant, as the case may be: Registered attorney appearing for several parties entitled to one set of costs only.

Provided, however, that where the Court is satisfied that any extra work of such a nature as should be specially remunerated has devolved on the registered attorney as a result of his appearance for several plaintiffs or defendants, the Court may make such order as to it shall seem meet and proper.

One of several plaintiffs of defendants liable to pay only his share of costs. 482. Where several plaintiffs or defendants retain and are jointly represented by the same registered attorney each of such plaintiffs or defendants shall, as between registered attorney and client, be chargeable only with his proportion of the general costs of the proceedings taken on behalf of all.

Compensatory costs in respect of false or vexatious claims of defence. 483. If in any action or other proceeding, not being an appeal, any party objects to the claim or defence on the ground that the claim or defence or any part of it is, as against the objector, false or vexatious to the knowledge of the party by whom it has been put forward, and if thereafter, as against the objector, such claim or defence is disallowed, abandoned, or withdrawn in whole or in part, the Court may, after recording its reasons for holding such claim or defence to be false or vexatious to the knowledge of the party by whom it has been put forward, make an order, for payment to the objector, by the party by whom such claim or defence has been put forward, of costs by way of compensation in addition to the costs of action, if any.

Costs of improper or vexatious pleadings, &c. delivered by a party to be disallowed. 484. The Court may at the hearing of any cause or matter or upon any application or proceeding in any cause or matter and whether the same is objected to or not, direct the costs (to be fixed by Court in the order) of,-
(a) any pleading, affidavit, evidence, interrogatory, notice to discover or inspect documents, or notice to admit facts;

(b) application for time;

(c) bill of costs;

(d) service of motion, notice or summons,

which is improper, vexatious, unnecessary, or contains vexatious or unnecessary matter, or is of unnecessary length or caused by misconduct or negligence, to be disallowed.

In such case the party whose costs are so disallowed shall pay the costs occasioned thereby to the other parties, which shall also be fixed by Court.

Personal liability of attorney at-law for costs. 485.
(1) Where upon the trial of any action, cause or matter it appears that the same cannot conveniently proceed by reason of the attorney-at-law appearing for any party having neglected to attend or having omitted to deliver any document necessary for the proper progress of the trial, such attorney-at-law shall, if the Court so directs, personally pay to all or any of the parties such costs as the Court shall think fit to award.

(2) If in any case it appears to the Court that costs have been improperly or without any reasonable cause incurred, or that by reason of any undue delay in proceeding under any judgment or order or of any misconduct or default of an attorney-at-law any costs properly incurred have nevertheless proved fruitless to the person incurring the same, the Court may call on such attorney-at-law to show cause why such costs should not be disallowed as between himself and his client, and also (if the circumstances of the case shall require) why he shall not repay to his client any costs which the client may have been ordered to pay to any other person, and thereupon may make such order as the justice of the case may require.

Costs of incidental or interlocutory proceeding. 486. Where on any incidental or interlocutory proceeding the Court makes an order for costs payable by one party to another, the Court shall fix the amount of such costs either at the time of the making of such order or at any time subsequent thereto.

Expenses of witnesses and attorneys-at-law may be disallowed in certain cases. 487.
(1) Where evidence of matters proof of which could have been adduced by calling upon the opposite party to admit facts or the genuineness of documents or by taking any other proceeding under this Chapter is placed before Court by means of witnesses testifying to such facts, the costs of summoning and the expenses payable to such witnesses shall be disallowed by Court either at the time such evidence is placed before Court or at any time subsequently.

(2) Where any party appears by registered attorney or other attorney-at-law or both, upon any application or action or proceeding in Court in which he is not interested or upon which appearance by an attorney-at-law is not necessary, the Court shall disallow the costs of such appearance.

Action a which fail for want of jurisdiction. 488. Where an action fails for want of jurisdiction in the Court to entertain and determine the matter of the action on its merits, it shall, nevertheless, be competent to the Court to make such order on the parties for the payment of costs as to it shall seem just.

Scale of costs to be prescribed 489.
(1) All bills of costs, whether between party and party or between registered attorney and client, shall be according to the scale prescribed by rules of Court.

(2) Notwithstanding the provisions of subsection (1), it shall, however, be competent to the Court on specifying the reasons therefor at the time it makes an order for costs-
(a) on special grounds arising out of the nature, importance, or the unusual difficulty or length, of trial of any case, to order a higher fee than that prescribed;

(b) for special reasons, to order a lower fee than that prescribed.

(3) In regard to any matter not provided for in the scale of fees the Court may fix such costs as to it shall seem reasonable.

RES JUDICATA

Res Judicata as a plea in bar. 490. Where a decree granting or refusing in whole or in part the relief claimed in respect of a cause inaction has been entered by a Court of competent jurisdiction, such decree shall operate as a bar to any subsequent litigation in respect of the same or substantially the same cause of action between the same parties or their privies, or in the case of a decree in rem between any persons whomsoever.

Explanation The expression relief claimed " shall include every claim, demand or remedy set up, claimed, or put in issue by one party and either denied or admitted expressly or impliedly by the opposite party, as well as every right to property or to money or to damages or to remedy of any kind which could have been set up, claimed, or put in issue between the parties, whether it was actually so claimed, set op or put in issue between them or not.

Res judicataby way of estoppel. 491.
(1) Subject to the provisions in regard to co-defendants or co-plaintiffs contained in this section, where a final decision on a controverted question of law or issue of fact has been pronounced in any action before it by a Court of competent jurisdiction, any party or privy to such action as against any other party or privy thereto, and in the case of a decision In rem any person whomsoever as against any other person, shall in any subsequent action wherein such question of law or issue of fact is directly and substantially in issue between them be estopped from disputing or questioning such decision.

(2) Where in order to give the plaintiff in an action the relief he claims in his plaint it becomes necessary for the Court to adjudicate upon a conflict of interest between two or more defendants to the action and a final decision upon such conflict is either expressly pronounced by the Court or impliedly involved in the adjudication upon such conflict, such decision or adjudication pronounced or made between the defendants inter se shall operate as res judicata between the said defendants or their privies in respect of the-same conflict or substantially the same conflict in any subsequent action,

(3) Where for the purpose of giving the relief claimed against the defendant to an action it becomes necessary for the Court to adjudicate upon a -conflict of interest between two or more plaintiffs to the action and a final decision upon such conflict is either expressly pronounced by the Court or impliedly involved in the adjudication upon such conflict, such decision or adjudication pronounced or made between the plaintiffs inter se shall operate as res judicata between the said plaintiffs or their privies in respect of the same conflict or substantially the same conflict in any subsequent action.

(4) Where the determination of the question of law or issue of fact is not expressly recorded but is necessarily involved in the adjudication, such adjudication is itself a decision on the controverted question of law or issue of fact.

(5) The provisions of this section and of the preceding section shall apply to all final decisions pronounced in any incidental or execution proceedings in any action.

(6) Where an appeal is taken in any proceedings referred to in this section, a decision or adjudication, shall operate as res judicata only if the judgment of the Supreme Court in appeal is based upon such decision or adjudication.

Res judicata by an along. 492. Where in any subsequent action between the parties to a former action or their privies or between any one of such parties or his privy and another, a plea of res judicata either as a bar or as an estoppel has not been completely established or cannot be established, but it appears to the Court that to permit the litigation of any question would constitute a re-litigation of the same question already adjudicated upon, it shall be competent to the Court to disallow the litigation of such question.

Rules relating to the doctrine of res judicata. 493.
(1) Sections 490, 491 and 492 shall have no application unless the Court which pronounced the decision or adjudication in the former action, is a Court-
(a) of original jurisdiction;

(b) of competent jurisdiction over the parties to, and the subject-matter of, the action; and

(c) competent to try the subsequent action.

(2) Where persons litigate bona fide in respect of a public right, or of a private right claimed in common for themselves and others, all persons interested in such right, shall be deemed to be privies to such litigation.

(3) The terms "privy" and "privies" shall comprise any person who succeeds to the rights or liabilities of a party on his death or insolvency or who is otherwise identified with him in title or interest.

(4) The expression " former action " in relation to a subsequent action shall denote an action which has been decided prior to the other action, whether instituted prior or subsequent thereto.

(5) The doctrine of res judicata shall apply whether such plea is raised in subsequent proceedings in the former action or in proceedings in any other action, whether in the same or a different Court.

(6) Any matter which might or ought to have been made a ground of defence or attack in the former action shall be deemed to have been a matter in issue in such action, whether in fact made a ground of defence or attack or not.

(7) All pleas in and grounds of defence available to a defendant till the delivery of judgment in an action shall be deemed to have been put in issue by the defendant, whether in fact put in issue or not.

(8) A judgment, order, decision or adjudication is not final where such judgment, order, decision or adjudication is the subject of an appeal to the Supreme Court.

(9) Where the judgment, decision or adjudication of a Court of original jurisdiction is reversed, varied or modified, or is affirmed upon grounds other than those given by the original Court, the judgment, decision or adjudication of the Supreme Court shall be deemed, for the purposes of this section, to be the judgment, decision or adjudication of the Court of original jurisdiction.

(10) Where the judgment, decision or adjudication of a Court of original jurisdiction is affirmed simpli-eiter by the Supreme Court, such judgment, decision or adjudication shall, for the purposes of this section, continue as that of the Court of original jurisdiction.

Lis alibi pendens. 494.
(1) Where the matter in issue in an action before a Court of original jurisdiction is also directly and substantially in issue in another action between the same parties or their privies, whether the actions are pending in the same Court or different Courts of original jurisdiction having jurisdiction to grant the same relief, it shall be competent to either of the Courts in which the actions may be pending, having regard to the conduct of the parties, the state of the action, the comparative expense and general convenience, to stay the action before it or direct that it be proceeded with.

(2) After an order to stay or to proceed with the action has been made in one of the actions, no contrary order shall be made in the other action but such other action shall either be proceeded with or stayed, as the case may be.

(3) After the pronouncement of the final judgment in the case which has been proceeded with, an appropriate order shall, as the justice of the case may require, be made in the case in which the order of stay was entered.

(4) Where the matter in issue in an action before a Court of original jurisdiction is also directly and substantially in issue between the same parties or their privies in another action pending in appeal before the Supreme Court, it shall be competent to the Court of original jurisdiction, if it appears to it in all the circumstances proper to do so, to stay the action before it.

(5) The pendency of an action in a foreign Court does not preclude the Courts in Sri Lanka from trying an action founded on the same cause of action.

EXECUTION

Judgment-debtor to comply with judgment. 495.
(1) Forthwith upon a decree being entered, the judgment-debtor shall comply with and carry out the terms thereof according to its tenor.

(2) Where the decree is for the payment of a sum of money, the debtor shall pay the decreed amount to the judment -creditor, or to the account of the Court at the appropriate bank. Where the payment is made to the account of the Court, notice of such payment shall be given to the judgment-creditor, and where interest is payable under the decree, such notice shall operate as a bar to the accrual of such interest upon the amount so paid after the date of receipt of such notice by the judgment-creditor.

Application for execution. 496.
(1) Where the decree remains unsatisfied, the judgment-creditor may apply to Court to have it executed by the Fiscal.

(2) Unless the subject or context otherwise requires, " Fiscal " shall include any other officer authorized by the Fiscal to execute a decree.

(3) The application for the execution of the decree shall be in writing in the prescribed form signed by the applicant or his registered attorney, and shall contain the following particulars: -
(a) the number of the action;

(b) the names of the parties;

(c) the date of the decree;

(d) whether any appeal had been preferred from the judgment;

(e) whether any, and what, adjustment of the matter in dispute has been made between the parties subsequent to the judgment or decree;

(f) whether any, and what, previous applications have been made for the execution of the decree, and with what result, including the dates and amounts of previous levies, if any;

(g) the relief granted by the decree ;

(h) the amount of costs, if any, awarded;

(i) the name of the judgment-creditor;

(j) the name of the judgment-debtor;

(k) in the case of a decree for the payment of; money, a statement of the property believed by the applicant to belong to, or to be held in trust for, or on behalf of, the judgment-debtor, or property over which or the profits in respect of which the judgment-debtor has a disposing power which he may exercise for his own benefit;

(l) the mode in which the assistance of the Court is required.

(4) If the Court is satisfied by reference, if necessary, to the record of the action, that the applicant is entitled to obtain execution in the manner claimed, the Court shall direct the judgment-debtor to satisfy the decree before a date to be specified in such direction, or to appear in Court on that day to show cause why a writ of execution should not be issued against him. A copy of such direction together with a copy of the application for the execution of the decree shall be served by Court on the judgment-debtor. Such documents when so served shall constitute the demand for the money payable under the decree.

(5) If the decree remains unsatisfied and the judgment-debtor fails to appear in Court on the specified date or appears in Court on that day and fails to show cause, which in the opinion of the Court is reasonable, as to why writ of execution should not be issued against him, the Court shall, subject to the provisions of subsection (9), direct a writ of execution to issue ,and the Fiscal shall forthwith execute it according to the tenor and exigencies thereof, in conformity with the provisions hereinafter contained.

(6) Where the decree is for the payment of money or for the delivery of movable property the Court may, before the issue of a writ of execution under subsection (5), examine the judgment-debtor or where the Judgment-debtor is a board, corporation or company, any officer thereof, on oath or affirmation as to whether any and what debts are owing to the judgment-debtor, and whether the judgment-debtor has any and what other property or means of satisfying the decree, or as to the person in whose possession or custody such movable property is the place where it is kept and any other information that may be required or necessary in order to effect seizure thereof, as the case may be.

(7) Whoever makes a false statement of fact relating to the state of his assets or the possession or custody of movable property knowing such statement to be false, when examined under subsection (6), shall be guilty of an offence under section 190 of the Penal Code and shall on conviction be liable to imprisonment for a period not exceeding seven years and shall also be liable to a fine.

(8) If a judgment-debtor evades appearance in Court on the specified date or appears in Court on that day and on examination under subsection (6) discloses to Court that he has no means of satisfying the decree, the Court shall, on an application made by the judgment-creditor, adjudge the judgment-debtor as an insolvent, and such of the provisions of the Insolvency Ordinance as are applicable to a person adjudged insolvent under that Ordinance shall thereafter, mutatis mutandis, apply.

(9) Upon the judgment-debtor being adjudged an insolvent under the preceding subsection, the Court shall cause to be published in three daily newspapers in the Sinhala, Tamil and English languages, and in the Gazette, at the expense of the judgment-creditor, a notification stating the number of the action, the name of the Court issuing the decree, the name of the judgment-debtor and the amount due from him under the decree, and that such amount has not been paid.

(10) No application to execute a decree, not being a decree granting an injunction, may be made after the expiration of one year from,-
(a) the date of the decree, or

(b) where the decree directs the payment of money or the delivery of property to be made at a specified date or at recurring periods, the date of the default in making the payment or the delivery of the property in respect of which the applicant seeks to execute decree.

(11) Nothing in this section shall be deemed to preclude the Court from ordering the execution of a decree upon an application made after the expiration of the first year but before the end of the second year where the judgment-debtor has by fraud or force prevented the execution of the decree at some time within one year immediately before the date of the application.

Wilful evasion of the decree. 497.
(1) Where after the issue of a writ for the execution of a decree the Court is satisfied on the application of the judgment-creditor, after such inquiry as the Court may deem necessary, that the judgment-debtor,-
(a) is about to abscond or leave the jurisdiction of the Court with intent to defraud the judgment-creditor or with intent to obstruct or delay the execution of the decree; or

(b) is about to leave Sri Lanka under circumstances affording reasonable probability that the judgment-creditor will thereby be obstructed or delayed in the execution of the decree; or

(c) has, on or after the date of the institution of the action in which the writ of execution was issued, concealed, transferred or removed his property or any part thereof with intent to defraud the judgment-creditor or with intent to obstruct or delay the execution of the decree, or has, on or after such date committed with the like intent any act of bad faith in relation to his property; or

(d) has been guilty of any act whereby any creditor other than the judgment-creditor at whose instance the writ of execution was issued, has been given any undue, unreasonable or fraudulent preference; or

(e) having sufficient means to pay the amount of the decree, or any part of that amount, has refused or neglected to pay such amount or part thereof; or

(f) being a trustee or person acting in any other fiduciary capacity, has, when ordered to pay by a Court, made default in the payment of any sum in his possession or under his control, the Court may without prejudice to any other order which it may consider fit to make, deal with him in the manner provided by law for the punishment of contempt of Court.

(2) No proceedings under this section shall commence or continue against a judgment-debtor who has defaulted by reason only of his serious illness.

EXECUTION OF DECREE FOR PAYMENT OF MONEY

Exemptions from seizure. 498. The following property shall not be liable to seizure or sale in execution of a decree for the payment, namely, -
(a) the necessary wearing apparel, necessary kitchen utensils, beds and bedding of the judgment-debtor, his wife and children; and chairs, tables and pictures not exceeding two hundred and fifty rupees in value of such judgment-debtor, his wife and children;

(b) any house which is not mortgaged as security for the payment of the whole or a part of the sum referred to in such decree and which is the actual residence of the judgment-debtor at the time of the execution of such decree and has been such residence from the time of the institution of the action in which such decree has been entered together with such extent of land appurtenant thereto as the Court may consider necessary for its enjoyment;

(c) such tools, utensils and implements of trade or business of the judgment-debtor, and, where the judgment-debtor is an agriculturist, such implements of husbandry, cattle and seed grain as may in the opinion of the Court be necessary to enable the judgment-debtor to earn his livelihood;

(d) professional instruments and library necessary for the carrying on of the judgment-debtor's profession or business to the value of one thousand rupees;

(e) books of accounts;

(f) mere rights to sue for damages;

(g) so much of the salary and allowances of an employee in a shop or office or in a local authority as does not in the aggregate exceed five hundred rupees in respect of each month of service;

(h) such quantity of paddy as may, in the opinion of the Court, where the judgment-debtor is an agriculturist, be necesary for the purpose of providing for the support of himself and his family, until the next harvest;

(i) the stipend and allowance of a naval, military, air force, civil or political pensioner of the Government or a pensioner of a local authority;

(j) all compulsory deposits and other sums in or derived from any provident fund;

(k) the salary and allowances of a State officer;

(l) the pay and allowances of persons to whom Articles of War apply;

(m) the wages of labourers and domestic servants;

(n) an expectancy of succession by survivorship or other merely contingent or possible right or interest.;

(o) a right to future maintenance:

Provided that nothing in this section shall be deemed to affect the Army, Air Force or Navy Acts, or any similar law for the time being in force:

Provided further that nothing in this section shall be deemed to prevent the- seizure of salary and allowances In execution proceedings for the recovery of maintenance or alimony awarded in matrimonial actions.

Explanation (1) The items mentioned in clauses (g), (i), (j), (k), (l) and (m) are exempt from seizure, whether before or after they are actually payable. (2) " shop " and " office " in paragraph (g) shall have the same meanings respectively as in the Shop and Office Employees (Regulation of Employment and Remuneration) Act.

Seizure of property generally. 499.
(1) Upon receiving a writ directing the seizure and sale of the property of a judgment-debtor, the Fiscal shall forthwith proceed to seize such property of the judgment-debtor as may be pointed out by the judgment-creditor or the judgment-debtor, or such property as Is specified in the writ.

(2) Where property is pointed out by the judgment-debtor, such property shall be unclaimed property and shall be surrendered by the judgment-debtor to the Fiscal.

(3) Seizure shall be effected of property sufficient to satisfy the amount due under the writ, or if there is more than one writ, all the writs, and the charges and expenses of levying execution.

(4) Where it becomes necessary to seize more than one property, the seizure shall be made in such order as may be specified by the judgment-creditor, or in the absence of any such instruction, by the Fiscal according to his discretion. It shall, however, be competent to the Court on the application of the judgment-debtor to vary, as to it shall seem proper, the order in which such seizure or sale shall be made.

SEIZURE OF MOVABLE PROPERTY

Seizure of movable property. 500.
(1) If the property sought to be seized and sold, or otherwise realized in satisfaction of the decree is movable property in the possession of the judgment-debtor, the seizure shall be manual.

(2) Except with the permission of the Court previously had and obtained, the outer or inner door of any dwelling house shall not be forced open in order to effect the seizure of movable property. Permission shall not be granted unless such dwelling house is wholly or in part in the occupation of the judgment-debtor, and the judgment-debtor refuses or in any way prevents access thereto. Before granting permission the Court may in its discretion require the judgment-creditor to give security for any damage that may be caused to or sustained by a person other than the judgment-debtor. When the Fiscal has duly gained access to any dwelling house, he may unfasten and open the door of any room in which he has reason to believe such property to be; permission of Court shall not be regarded as necessary in such a case.

(3) The Fiscal may at his discretion permit the owner or possessor of the property or the writ-holder to take charge of the property until the time of sale, on giving security to the satisfaction of the Fiscal that he will in the meantime safely and securely keep the same; or the Fiscal may upon the necessary expenses therefor being advanced or secured to him by the debtor or the decree-holder, keep the property in his own custody or in the custody of one of his subordinates or cause the same to be removed to some fit place of security. If such security is not given or such expenses are not advanced or secured, the Fiscal shall make a special return thereof to the Court, and shall not be responsible for the due custody of the property seized.

(4) The expenses of keeping the property in such custody or of removing the same when certified by the Fiscal shall, if not paid by the debtor, be a first charge on the proceeds of the property seized or sequestered, provided that the Court may, if it thinks fit, reduce the amount of expenses so certified as aforesaid.

(5) If the property seized is subject to speedy and natural decay or if the expense of keeping it in custody will exceed its value, the Fiscal may sell it at once.

Seizure of negotiable instrument. 501. If the property is a negotiable instrument not deposited in a Court nor in the custody of a State officer, the instrument shall be seized and brought into Court and held subject to the further orders of the Court.

Seizure of debts, shares, salary and movable property not in possession of debtor and not deposited in Court. 502.
(1) If the property is,-
(i) a debt other than a debt secured by a negotiable instrument, due from a third party (hereinafter called the " garnishee ") to the judgment-debtor,

(ii) a share in the capital of any company or corporation,

(iii) the seizable part of the salary and allowances not exempted under this Chapter,

(iv) other movable property not in the possession of the judgment-debtor, except property deposited in, or in the custody of, any Court, or in the custody of a State officer,

(v) the right, title or interest of the judgment-debtor in a pending action,

the sequestration or seizure shall be made by a written notice signed by the Fiscal, under the authority of the writ of execution, prohibiting,-
(a) in the case of the debt as aforesaid, the judgment-debtor from recovering the debt, and the garnishee from making payment thereof until the further order of the Court from which the writ of execution authorizing the seizure issued;

(b) in the case of the share, the person in whose name the share may be standing, from transferring the same or receiving any dividend thereon;

(c) in the case of salary and allowances, the employer from paying such seizable part thereof to the judgment-debtor;

(d) in the case of the other movable property referred to above, the person in possession of the same from giving it over to the judgment-debtor ;

(e) in the case of the right, title and interest, the judgment-debtor from proceeding to enforce his rights, receiving payment or satisfaction or entering into any adjustment in respect of such action, and the party from which such right is claimed (called hereinafter the action debtor ") from paying, satisfying or entering into an adjustment in respect of the action.

(2) A copy of such notice shall be affixed to some conspicuous part of the Court-house and another copy of the same shall be sent by registered post, in the case of the debt, to the garnishee, in the case of the share, to the proper officer of the company or corporation, in the case of the salary and allowances, to the employer, and in the case of the other movable property, to the person in possession of the same, and in the case of the right, title and interest in the action, to the Registrar of the Court, whereupon the Court shall stay further proceedings until the notice is withdrawn, or the purchaser under the sale effected in pursuance of such seizure applies to the substituted in place of the judgment-debtor.

(3)
(a) No payment, satisfaction or adjustment made by the garnishee, employer, or the action debtor,

(b) no registration made by the company or corporation, and

(c) no delivery of the other movable property by the person in possession thereof,

in contravention of such seizure after receipt of notice or with the knowledge thereof, shall be recognized by any Court so long as the seizure remains in force.

(4) The seizure of the seizable part of the salary and allowances may be effected before, on or after the date when the salary and allowances become payable to the employee.

(5) In the case of a debt due and owing by the State to the judgment-debtor, the copy of the notice may be sent by registered post either to the Attorney-General or to the disbursing officer.

Explanation "disbursing officer" includes the head of the department or local head making payment.

Seizure of property deposited in any Court. 503.
(1) If the property is deposited in, or is in the custody of any Court or State officer, the seizure shall be made by a notice to such Court or officer, requesting that such property and any interest or dividend becoming payable thereon may be held subject to the further orders of the Court from which the writ of execution authorizing the seizure issued. Seizure of property deposited in any Court.

Explanation Money in the hands of the Government Agent to the credit of an action or to the credit of any party to an action, is money deposited in, or in the custody of, the Court in which the action is.

(2) The Court receiving such notice shall stay execution accordingly, unless and until-
(i) the Court which passed the decree sought to be executed cancels the notice; or

(ii) the holder of the decree sought to be executed applies to the Court receiving such notice to execute its own decree.

(3) Where such property is deposited in, or is in the custody of, a Court, any question of title or priority arising between the judgment-creditor and any other person, not being the judgment-debtor, claiming to be interested in such property by virtue of any seizure, assignment, or otherwise, shall be determined by such Court.

Seizure of a decree in favour of judgment-debtor. 504.
(1) If the property is a decree for money passed in favour of the judgment-debtor by the Court which passed the decree sought to be executed, the application for seizure shall be made by the judgment-creditor by motion ex parte in the action in which the decree sought to be executed is entered, and if the Court allows the motion, the seizure shall be made by an order of the Court endorsed in the record of the case in which the decree is sought to be seized, directing the proceeds of the decree entered therein to be applied in satisfaction of the decree sought to be executed.

(2) If the property is a decree for money passed by any other Court, the application for seizure shall be made by the judgment-creditor by motion ex parte in the action in which the decree sought to be executed is entered, and if the application is allowed, the seizure shall be made by notice to such other Court. Such notice shall be in writing signed by the Registrar of the Court which passed the decree sought to be executed requesting the Court, the decree of which is sought to be seized, to stay the execution of its decree until such notice is cancelled by the Court from which it was sent.

(3) If the property is a decree other than a decree for payment of money passed in favour of the judgment-debtor by the Court which passed the decree sought to be executed, the application for seizure shall be made as provided in subsection (1) and if the application is allowed, the seizure shall be made by a notice in writing signed by the Registrar of the Court which passed the decree sought to be executed to the holder of the decree sought to be seized prohibiting him from transferring or charging the same in any way.

(4) If the property is a decree other than a decree for payment of money passed by any other Court, the application for seizure shall be made as provided in subjection (2) and if the application is allowed, notice as specified in the preceding subsection shall be given to the holder of the decree sought to be seized, and a notice signed by the Registrar of the seizing Court shall be sent to such other Court requesting it to abstain from executing the decree sought to be seized until such notice is cancelled by the seizing Court. Every Court receiving such notice shall give effect to the same until it is so cancelled.

(5) Notice of seizure effected under any of the preceding subsections shall be given to the judgment-debtor bound by the decree seized, and no payment, satisfaction or adjustment of the decree seized made by such judgment-debtor in contravention of such seizure after receipt of notice or with the knowledge thereof shall be recognized by any Court so long as the seizure remains in force.

(6) When a money decree is seized under subsection (1) or subsection (2), the judgment-creditor at whose instance the seizure is made shall be deemed the assignee thereof under assignment as of the date of the seizure, made by the person against whom he is executing the writ of execution, so far as that person's interest extends, and he may realize the decree in the manner hereinafter provided for the execution of a decree by an assignee thereof.

Seizure of interest of a judgment-debtor in partnership property. 505.
(1) If the property is the interest of the judgment-debtor in a partnership or firm, the seizure shall be made by an order of Court charging the interest of such judgment-debtor in the partnership property and profits with payment of the amount due under the decree, and the Court may, by the same or a subsequent order, appoint a receiver of the share of such partner in the profits (whether already declared or accruing) and of any other money which may be coming to him in respect of the partnership, and direct accounts and inquiries and make an order for the sale of such interest or other orders as might have been directed or made if a charge had been made in favour of the decree-holder by such partner, or as the circumstances of the case may require, but no property belonging to the partnership shall be seized in execution of such decree.

(2) Notice of such seizure shall be given by service of copies of the charging order on the judgment-debtor and on his partners or such of them as are within Sri Lanka, or on the person who has the control or management of the said partnership business.

(3) The other partner or partners shall be at liberty at any time to have such seizure released on payment of the amount of the writ and the expenses and charges of seizure.

(4) Notice of such payment shall be served on the decree-holder and on the judgment-debtor.

(5) Service under subsection (2) shall be deemed to be service on all the partners.

Execution of decree against partners as such. 506.
(1) Where a decree has been entered against the partners of a firm or partnership as such, seizure may be made of any property,-
(a) of the partnership;

(b) of any person who has appeared in his own name or who has admitted on the pleadings that he is, or who has been adjudged to be, a partner;

(c) of any person who has been individually served as a partner with a summons and has failed to appear.

(2) Where the judgment-creditor claims to be entitled to cause the decree to be executed against any person other than such a person as is referred to in paragraphs (b) and (c) of subsection (1) as being a partner in the firm, he may apply to the Court which passed the decree for leave, and where the liability is not disputed, such Court may grant such leave, or where such liability is disputed, may order that the liability of such person be tried and determined in airy manner in which any issue in an action may be tried and determined.

(3) The application under subsection (2) shall be by petition supported by an affidavit of facts showing that the person against whom the decree is sought to be executed is a partner in the firm or partnership. Notice of such petition, together with a copy of the affidavit shall be served on the person alleged to be a partner, and such person, where he disputes the liability, may file his objections. Where the liability of any person has been tried and determined, the order made thereon shall subject to appeal be final and conclusive.

Alienation by debtor subsequent to seizure void as against claims enforceable under seizure. 507. Where a seizure of any negotiable instrument, debt, share, seizable part of the salary and allowances, money, partnership interest, decree, or any other movable property has been effected and made known in manner herein before provided, any private alienation of the property seized whether by sale, gift, mortgage or otherwise, and any payment of the debt or partnership interest or seizable part of the salary and allowances, or dividend, or delivery of the share to the judgment-debtor during the continuance of such seizure, shall be void as against all claims enforceable under the seizure.

Explanation For the purpose of this section, claims enforceable under a seizure include claims for the rateable distribution of assets.
SEIZURE OF IMMOVABLE PROPERTY

Seizure of immovable property. 508.
(1) If the property is immovable, the seizure shall be made by a notice signed by the Fiscal prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from receiving the same from him by purchase, gift or otherwise. But in no case shall the Fiscal enter upon actual possession of the immovable property, seize, or receive the rents and profits thereof, unless expressly directed so to do by order made under this Chapter.

(2) Such notice shall specify the parties to the action, the judgment-debtor, the dates of judgment and seizure, and the name, situation and boundaries of the land seized, and shall be proclaimed at some place on or adjacent to such property in the customary mode or in such manner as the Court may direct, and a copy of the notice shall be affixed by the Fiscal to a conspicuous part of the property and of the Courthouse.

(3) Where a seizure of immovable property is effected under a writ of execution and made known as provided by the preceding subsections and notice of the seizure is registered under the Registration of Documents Ordinance, any sale, conveyance, mortgage, lease or disposition of the property seized made after the seizure and registration of the notice of Seizure and while such registration remains in force, shall be void as against a purchaser from the Fiscal selling under the writ of execution and as against all persons deriving title under or through the purchaser.

(4) If at any time while a seizure priority notice registered under section 31 of the Registration of Documents Ordinance remains in force, a seizure of any land described in the seizure priority notice is effected under a writ of execution and made known as provided by the preceding subsections and notice of seizure is registered under the Registration of Documents Ordinance, any sale, conveyance, mortgage, lease, or disposition of the property seized made after the registration of the seizure priority notice shall be void as against a purchaser from the Fiscal selling under the writ of execution and as against all persons deriving title under or through a purchaser.

OF SEIZURE GENERALLY

When seizure deemed withdrawn. 509.
(1) If the amount decreed with costs and all charges and expenses resulting from the seizure of any property is paid into Court, or if satisfaction of the decree is otherwise made through the Court or certified to the Court, the seizure shall be deemed to be withdrawn, unless there are in the hands of the Fiscal other unsatisfied writs.

(2) The Court may also on the application of the judgment-debtor make order releasing the seizure, but subject to the continuance of the seizure if there are other unsatisfied writs in the hands of the Fiscal.

List to be made of property seized. 510. As soon as any property is seized by the Fiscal, a list of such property shall forthwith be made and signed by himself and shall be given to the judgment-debtor and to any person claiming to be in possession of the property seized and copies thereof shall be also annexed to the return to the writ.

CLAIMS TO PROPERTY SEIZED

Claims to property seized. 511.
(1) "Where any claim is preferred to or objection is made to the seizure of any property seized in execution of a decree on the ground that such property is not liable to such seizure or sale, the Fiscal shall, as soon as the same is preferred or made, report to the Court which passed such decree.

(2) Where any such claim or objection is preferred or made, in respect of any property seized outside the local limits of the jurisdiction of the Court which passed the decree under which such seizure is made, such report shall be made to, and the investigation of such claim or objection as hereinafter provided shall thereupon be held by, the Court of the district or division within the local limits of which such seizure was made if such Court is nearer to the place of seizure than, and of co-ordinate jurisdiction with, the Court which passed the decree. The proceedings on such report and investigation with the order thereon shall be forwarded by such Court to the Court which passed the decree and shall be and become part of the record in the action.

(3) The claim or objection shall be preferred or made at the earliest opportunity and in any event not later than thirty days from the date of such seizure. Any claim or objection preferred or made after the expiry of the said period of thirty days shall not be entertained.

(4) Where the claim or objection is preferred or made within the prescribed time, the sale shall, subject to the provisions of the next succeeding sections, stand postponed.

(5) Whenever it shall appear to a competent Court, and be so found and declared in any judgment pronounced by it in any action instituted by or against any person claiming any property pointed out or seized in execution, that such claim is altogether groundless and wilfully preferred only to defeat or delay the execution, every such claimant shall, in addition to his liability to pay costs and damages, be liable to a fine not exceeding one thousand rupees, and such fine shall be recovered as a fine imposed by a Court in a criminal case.

Claims to movable property seized. 512.
(1) Where the claim or objection relates to movable property, the claimant may,
(a) deposit with the Fiscal the sum which he is allowed to charge as costs for keeping possession of the goods until the decision of the Court can be obtained on the claim, or

(b)
(i) deposit to the account of the Court, the value of the goods claimed, or

(ii) furnish security for the value thereof to the Court. In case of dispute as to the value of the goods claimed, the Court shall make an appraisement thereof after holding an inquiry thereinto in a summary manner.

(2) In default of the claimant complying with the provisions of the preceding subsection and subject to the order of Court, if any, the Fiscal shall sell the movable property as if no such claim had been made and shall pay into Court the proceeds of the sale to abide the decision of the Court.

(3) Within fifteen days of the receipt by Court of the Fiscal's report of such claim, the claimant shall file in Court a statement of his claim, setting out the particulars of any property alleged to be his and the grounds of his claim thereto, and shall at the same time serve a copy of the statement on the writ-holder. The statement shall be headed and bear the same number as of the action, and shall set out the full name, place of residence or business and occupation, of the claimant, and shall be stamped as of the class either of the action or of the value of the goods claimed, whichever is less, and shall, as far as practicable, conform to the requisites of a plaint.

Explanation A mortgagee claimant need not file a statement of claim under this section in view of section 105 of the Mortgage Act.

(4) The writ-holder may within fifteen days of the service of the statement on him file a counter-statement in Court and serve the claimant at the same time with a copy thereof. The counter-statement shall set out all grounds upon which the claim . is resisted. including any plea that the property had been transferred in fraud of creditors. The counter-statement shall be duly stamped as the statement and conform, as far as practicable, to the requisites of an answer.

(5) Within ten days of the date of the counter-statement being filed, or of the expiry of the period allowed for filing the counter-statement where no counter-statement is filed, the Court shall fix a date for preliminary investigation and the proceedings thenceforth shall mutatis mutandis follow the procedure for the trial of a regular action, the claimant being considered the party plaintiff and the judgment-creditor the party defendant.

(6) Upon such trial the Court shall determine the title to the property claimed and whether the property or any part thereof is liable to be sold under the seizure, and make order either releasing the seizure or disallowing the claim, subject to otherwise.

(7) If the Court is satisfied that the property is subject to a lien in favour of the claimant, the Court may order that the property be sold subject to the lien, or that the property be sold free of the lien and the proceeds of the sale be applied first in discharge of the lien.

(8) The Court shall make order as to the party by whom the charges and expenses consequent on the claim or objection shall be borne as well as the costs of the proceedings.

(9) Subject to appeal, the judgment of the Court shall be final and conclusive.

Claims to immovable property seized. 513.
(1) Where the claim or objection relates to immovable property seized, the Court shall, on receipt of the Fiscal's report, proceed in a summary manner to investigate such claim or objection. The claimant or objector must on such investigation adduce evidence to show that at the date of the seizure he had some interest in, or was possessed of, the property seized.

(2) If upon the said investigation the Court is satisfied that, for the reason stated in the claim or objection, such property was not, when seized, in the possession of the judgment-debtor, or of a tenant or other person paying rent to him, or that being in the possession of the judgment-debtor at such time, it was so in his possession, not on his own account or as his own property, but on account of or in trust for some other person or partly on his own account and partly on account of some other person, the Court shall release the property wholly, or to such extent as it thinks fit, from seizure and make order as to payment of fees and charges already incurred by the Fiscal as it may deem fit.

(3) If the Court is satisfied that the property was, at the time it was seized, in the possession of the judgment-debtor as his own property, and not on account of any other person, or was in the possession of some other person in trust for him, or in the occupancy of a tenant or other person paying rent to him, the Court shall disallow the claim.

(4) The party against whom an order under either of the two preceding subsections is made may institute an action within fifteen days from the date of such order to establish the right which he claims to the property in dispute, or to have the said property declared liable to be sold in execution of the decree in his favour upon any ground whatsoever, including the ground that the property had :been transferred in fraud of creditors. Subject to the result of such action, if any, the order shall be final and conclusive.

SALE OF MOVABLE PROPERTY

Realization without sale of the property of the judgment-debtor. 514.
(1) Where the amount of the writ is paid by the judgment-debtor to the Fiscal before the sale in execution of any property belonging to him, or where the property seized is current coin or currency notes, the Fiscal shall deal with the money received or seized by him in the manner hereinafter directed in respect of money received by the Fiscal on the sale of property sold at the execution sale. The money so received or seized by the Fiscal shall, on being deposited to the credit of the action from which execution issued, be deemed to have been paid into or received by the Court to the separate account of the judgment-creditor in execution of whose writ the money was received or seized, and the money shall forthwith be paid out to such judgment-creditor.

(2) Where a Court had made an order of seizure or received notice of seizure of a money decree, it shall, on application of the judgment-creditor who has seized the decree, proceed to execute the decree seized and apply the net proceeds in satisfaction of the decree sought to be executed.

(3) A garnishee or an employer may, upon the ex parte application of the judgment-creditor, be summoned by Court to show cause why, in the case of the garnishee he should not pay to the judgment-creditor the debt due from him to the judgment-debtor or so much thereof as may be sufficient to satisfy the judgment, and in the case of the employer he should not withhold from payment to the employee such seizable part of the salary and allowances, either in one sum or in monthly instalments as may be sufficient to satisfy the judgment.

(4) Where such garnishee does not dispute the debt due or claimed to be due from him or where the employer has no cause to show against the withholding of such seizable part of the salary and allowance due from him to the employee and where the garnishee or employer as the case may be fails within such time as may be allowed by the Court to pay into Court the specified amount, or where the garnishee or employer does not appear upon summons, then the Court shall order execution to issue.

(5) Where the seizable part of the salary and allowances of an employee is already being withheld and paid into a Court in pursuance of a previous and unsatisfied order, the employer if served with a subsequent summons shall forthwith return the summons to the Registrar of the Court from which it has issued, with a full statement of the previous unsatisfied order. On receipt of such summons by Court, the judgment-creditor at whose instance it was issued may apply to the Court into which the salary and allowances are being paid by the employer for a further order on the employer after notice to him and to all judgment-creditors who may be affected thereby to withhold and pay into Court any additional sum available for seizure and for a rateable distribution of the amount received in Court and not previously paid out.

(6) If such garnishee or employer disputes the debt or the liability to pay any part of the salary and allowances due or claimed to be due from him, the Court shall examine the garnishee or the employer in order to ascertain if the dispute raised is made bona fide and make such order as the justice of the case may require.

(7) After an order on an employer has been made directing him to pay into Court monthly the seizable part of the salary and allowances due to an employee it shall be competent to the Court to vacate or modify such order upon being satisfied on the application of the employer, with notice to the judgment-creditor, that circumstances have so altered since the date of the order as to render it proper to do so.

(8) Where the property in deposit or in the custody of a State officer is money, the State officer may, upon the ex parte application of the judgment-creditor, be summoned by the Court to show cause on a day fixed in the summons why he should not pay into Court the said sum of money or so much thereof as may be sufficient to satisfy the judgment. If no cause is shown, order may be made directing the payment of such sum of money into Court. If there is a dispute as to any money being due to the judgment-debtor, or if any money admitted to be due to the judgment-debtor is claimed to be subject to a lien or charge created in favour of a State officer or the State, the Court shall examine the State officer and make such order as the justice of the case may require.

(9) The costs of all applications made and proceedings had under this section shall be in the discretion of the Court.

Notice of sale of seized property. 515.
(1) Where the seizure is of movable property other than current coin or currency notes, the Fiscal shall cause notice of such sale to be given in such manner as to secure adequate publicity, both at the place of sale and of seizure, not less than three days and not more than fourteen days before the day of sale, and shall specify in such notice, as fairly and accurately as under the circumstances is reasonably practicable, the property to be sold, the action in which, and the place and day and hour at which the sale is to take place, and the amount of money for the levy of which writ has issued.

(2) Where the seizure is of immovable property notice in the manner prescribed in the preceding subsection shall be given, and the Fiscal shall in addition cause to be made copies of the notice of sale in Sinhala and in any other language prevailing within the district, which he shall cause to be posted at the Courthouse whence the execution issued, in some conspicuous part of the town or village in which the land is situated, and on some conspicuous spot on the property for sale, at least ten days before the day of sale.

(3) Where the property seized under one writ exceeds the value of five thousand rupees, the Fiscal shall in addition to the notice herein before required, advertise the sale thereof, enumerating briefly the goods for sale, the nature and situation of the land, and the time and place of the sale, in a daily newspaper; and no such sale shall take place until it shall have been so advertised once at least twenty days prior to the day of sale. It shall be lawful to the execution-creditor or debtor to require the publication of such sale to be made in any newspaper to be named by him. All costs and charges attending such advertisements shall be paid in advance by the party requiring such publication.

Explanation Property seized under one writ shall include all property under seizure (whether effected at one time or at different times) up to the time of the sale of any property under such writ.

(4) The Fiscal may, at the request of both parties, or either of them, on payment to him by the applicant of all costs or expenses attending the publication, advertise any sale of movable or immovable property in manner prescribed in subsection (3), although it does not exceed the value of five thousand rupees.

Proceedings at the sale of seized property. 516.
(1) Every sale shall be held by the Fiscal or by any other person duly authorized by the Fiscal by wilting under his hand.

(2) The Fiscal shall be entitled to recover as a fee, such per centum of the proceeds of sale as may be prescribed by the Minister by regulation.

(3) No officer having any duty to perform in connection with any execution sale shall either by himself or another bid for, acquire, or attempt to acquire any interest in any property sold at such sale.

Adjournment of sale of seized property. 517.
(1) The Fiscal may in his discretion for reasons to be recorded by him adjourn a sale: Provided that the date to which the sale is adjourned is published in the same manner as was the original notice of sale.

(2) The Court may for sufficient cause and on such terms as to it appears fit stay execution proceedings at any stage thereof, and make order for adjournment of a sale. The application to the Court to stay proceedings shall be made by petition, to which all persons interested in the matter of the execution shall be made parties.

(3) It shall be competent either to the judgment-debtor with the consent of the judgment-creditor, or to the judgment-creditor without obtaining a previous order of Court in that behalf, to request the Fiscal to postpone or stay the sale, and, where such request is made, the Fiscal shall forthwith postpone or stay the sale and report such postponement or stay to Court.

(4) In every case, after the seizure of property and publication of sale thereof, in which the sale" shall be postponed or stayed on the orders of Court or at the request or with the concurrence of the party suing out the writ, the Fiscal shall recover half of the fees specified in the preceding section on the estimated value of such property from the party ordered by Court to make such payment or at whose instance the sale is stayed, and in default of immediate payment thereof the Fiscal shall certify the amount of such fees to the Court whence the execution issued: Provided, however, that whether the stay is of the sale of one property or more than one, the fee so certified shall comprise the actual expenditure already incurred by the Fiscal towards carrying out the sale and an additional sum not exceeding one hundred rupees. The fees recovered under this section shall be brought to account and appropriated in such manner as the Minister shall from time to time direct.

(5) The amount certified by the Fiscal to be payable to him for half fees under the preceding subsection and the amounts of the differences certified by the Fiscal and directed to be reported to the Court under sections 523 (6) and 524 shall, in the case of such half fees, at the instance of the Fiscal, and in the case of such differences respectively at the instance either of the Fiscal, or of the judgment-creditor, or of the judgment-debtor,- be recoverable from the persons declared in those sections to be liable to pay the same, in the same way as if the certificates were a decree for money passed by the Court to which it is returned against those persons.

Holder of decree may bid or purchase. 518.
(1) A holder of a decree in execution of which property is sold may, with the previous sanction of and subject to such terms as to credit being given him by the Fiscal or otherwise as may be imposed by the Court, bid for or purchase the property.

(2) When a decree-holder purchases, the purchase money and the amount due on the decree may, if the Court thinks fit, be set off against one another, and the Court in execution of whose decree the sale is made may enter satisfaction of the decree in whole or in part accordingly.

Moneys paid to and realized by the Fiscal. 519. Payments to and by the Fiscal shall be made in the manner and subject to the rules following, and not otherwise: -
(a) Whenever any person, whether the original debtor or a purchaser of property sold in execution, makes payment of money to the Fiscal, the Fiscal shall in acknowledgment of the sum so paid to him issue a receipt in the prescribed form.

(b) The Fiscal shall make payment of all monies received by him to the appropriate bank account of the Court in the prescribed manner.

SALE OF IMMOVABLE PROPERTY

Place of sale of seized immovable property. 520. The sale of immovable property shall be conducted on the spot, unless the Court shall otherwise direct, or unless on application in writing to the Fiscal the parties shall consent to its being conducted elsewhere.

Court may postpone sale to enable judgment-debtor to raise money by mortgage, lease op private sale. 521.
(1) If at any time prior to the sale of immovable property seized in execution the judgment-debtor can satisfy the Court that there is reason to believe that the amount of the decree and of any unsatisfied judgment then in force against him may be raised by mortgage, or lease, or private sale of such property, or some part thereof, or of any other immovable property of the judgment-debtor, the Court may on his application postpone the sale of such property for such period as it thinks proper to enable him to raise the amount, and shall make such order as to the payment of fees and charges due to the Fiscal as it may deem fit. The Court shall also grant a certificate to the judgment-debtor, authorizing him within a period to be mentioned therein, to make the proposed mortgage, lease or sale.

(2) All moneys payable under such mortgage, lease or sale shall be paid into Court and not to the judgment-debtor.

(3) No mortgage, lease or sale under this section shall become absolute until it has been confirmed by the Court.

Bids at the sale. 522.
(1) The Fiscal or other officer conducting any sale of immovable property may, before accepting any bid at such sale, satisfy himself as to the bona fides of the bidder, and his ability to pay down the amount of deposit required; and in the event of his not being so satisfied may refuse to accept any such bid, and shall continue the sale as if no such bid had been made.

(2) When the property sold in execution of a decree is an undivided share of immovable property, and two or more persons, of whom one is a co-owner, respectively advance the same sum at any bidding at such sale, such bidding shall be deemed to be the bidding of such co-owner.

Payment. 523.
(1) On every sale of immovable property the person declared to be the purchaser shall pay immediately after such declaration in every case the fees, commissions and expenses of sale, and where the price does not exceed five hundred rupees, the full amount of, but in every other case a deposit of twenty-five per centum of, the amount of his purchase money to the officer conducting the sale, and in default of such payment and deposit the property shall forthwith be put up again for sale.

(2) Such expenses of sale as have been incurred by the judgment-creditor shall be repaid to him.

(3) Where the price exceeds five hundred rupees the balance amount of the purchase money shall be paid by the purchaser on or before the thirtieth day after the sale of the property.

(4) In default of payment within the period mentioned in this section, the deposit shall be forfeited to, and shall go in reduction of the claim off the judgment-creditor, and the property shall be resold, and the defaulting purchaser shall forfeit all claim to the property and to any part of the sum for which it may subsequently be sold.

(5) Every resale of immovable property in default of payment of the purchase money within the period allowed for such payment shall be made after the issue of a fresh notice of sale.

(6) The second sale, taking place in consequence of such non-payment of balance of purchase money, shall be made in the manner herein before prescribed for the first sale, and if the amount of the purchase money for which the property is sold at such second sale falls short of the amount for which the first sale was concluded, then the first purchaser and his sureties, if any, shall be held liable to pay the Fiscal the amount of this difference, and the Fiscal on nonpayment thereof by such purchaser and his sureties within one week after demand made by him upon them respectively in writing, shall certify the amount of the said difference to the Court whence the execution issued. The like course shall be observed in respect of any subsequent sale rendered necessary by failure in payment of the purchase amount.

Highest bidder not making deposit. 524.
(1) If at the sale of immovable property the highest bidder on being declared the purchaser does not forthwith pay down the amount of the fees and expenses of’ sale and the deposit required, and live good and sufficient security to the satisfaction of the Fiscal for the payment of the residue, the next highest bidder may be thereupon declared the purchaser and required to make such payment and deposit and give such security as aforesaid; and in the same manner the other bidders in rotation.

(2) Each person failing to make such payment arid deposit and to give security as aforesaid may be held liable to pay the difference between the amount of his offer and the sum finally settled at the sale and the Fiscal on non-payment thereof by such persons respectively within one week after demand made by him upon them in writing, shall certify the amount of the said difference in each case to the Court whence the execution issued.

(3) In case of default of the highest bidder, instead of declaring the next highest bidder purchaser, the officer holding the sale may forthwith put up the property for sale anew, or adjourn the sale, in which latter case the property shall again be advertised as before.

Forfeiture of deposit. 525. If the price for which the property is finally sold at the second or any subsequent sale is not less than that of the first sale then the money deposited by the purchaser at the first and other sales which preceded the final sale shall be paid to the execution-creditor in satisfaction protanto of the judgment; and in the event of such judgment being so satisfied, and any surplus remaining, such surplus shall be paid to the judgment-debtor.

Differences realized to argument the purchase money. 526. The differences between the biddings of any person failing to make the deposit and give the security and the sum finally settled at any such sale and between the amount of the final sale and those of previous sales shall, when realized, be paid by the Fiscal into the account of the Court in augmentation of the purchase money of the final sale.

Confirmation of sale. 527.
(1) The Fiscal shall report to the Court every sale of immovable property made by him or under his direction within ten days after the same was made. And no sale of immovable property shall become absolute until thirty days have lapsed subsequent to the receipt of such report, and until such sale has been confirmed by the Court.

(2) The decree-holder, or any person whose immovable property has been sold, or any person establishing to the satisfaction of the Court an interest in such property, may apply to the Court by petition by way of summary procedure to set aside the sale on the ground of a material irregularity in publishing or conducting it; but no sale shall be set aside on the ground of irregularity unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity, and unless the grounds of the irregularity were notified in such petition to the Court within thirty days of the receipt of the Fiscal's report. The purchaser and all other persons affected by the application shall be made respondents to the petition. If the application is allowed, the Court shall pass an order setting aside the sale.

(3) If no such application as is referred to in subsection (2) is made within the thirty days, or if such application is made and is disallowed, the Court shall at the expiration of the thirty days and subject to the provisions of the next two succeeding subsections pass an order confirming the sale.

(4) No order confirming the sale shall be made if it appears to the Court that the judgment-debt was satisfied at the time of the sale, and in that event the Court shall pass an order setting aside the sale.

(5) Where an application is pending to have an adjustment or satisfaction of decree entered or made before the date of sale certified of record, the Court may, if the justice of the case so demands, postpone the confirmation of sale till after its decision on such application.

Purchaser may apply to set aside sale 528. The purchaser at a sale unless he is the judgment-creditor, may apply to the Court by petition by way of summary procedure to set aside the sale on of the ground that the person whose property was purported to be sold had no saleable interest therein, and the Court may, on such application, make such order as it thinks fit: Provided that both the judgment-debtor and the decree-holder are made respondents to the petition.

When purchaser entitled to refund. 529.
(1) When a sale of immovable property is set aside under the two preceding sections, the purchaser shall be entitled to be paid the purchase money if in deposit in Court, or where the purchase money has been paid out to any other person, then to an order for repayment against such person to whom it has been paid out.

(2) The Court may also make such order as it thinks fit against any person in regard to the repayment of fees, commissions and expenses of sale paid by the purchaser to the Fiscal.

(3) Any such order for the repayment of purchase money or of fees, commissions and expenses of sale may be enforced against the person against whom the order is made as if such order were a decree for the payment of money.

Conveyance to purchaser. 530.
(1) If the Court has confirmed the sale, and the purchaser has paid the full amount of the purchase money according to the conditions of sale, and has supplied the Fiscal with stamps of the proper amount required by law for the conveyance of the land sold to him (which stamps he shall be bound to supply when he pays the purchase money in full) and if the sale was not effected in execution of a decree specifically directing the sale, then the Fiscal shall forthwith make out and execute a conveyance in duplicate of the property according to the prescribed form, or such other form, or expressed in such terms, as the Court may deem expedient, which conveyance shall be binding and of force, though not executed before a notary public.

(2) If the sale was effected in execution of a decree specifically directing the sale, then the conveyance shall be made in conformity with the directions of the Court contained in the decree.

(3) Where the purchaser so requires, but not otherwise, to all conveyances made by the Fiscal to complete a sale effected in execution of a decree of Court, in the event of there being no diagram or map of the premises which are the subject of the conveyance already appended to a title deed thereof delivered to the purchaser, there shall be annexed a sufficient map exhibiting, when possible, some permanent physical feature on or of the ground; and the purchaser shall pay in advance the expense of preparing it in addition to the fee prescribed for the conveyance. Such diagram or map shall be prepared by a competent surveyor approved by the Court for that purpose, and such surveyor shall be deemed to be an officer of Court, and shall for the purposes of the Penal Code be deemed to be a State officer.

(4) The Fiscal shall be entitled to recover for such conveyance a fee according to a scale of fees which shall be prescribed by the Minister by regulation, and such fee shall be brought to account and appropriated in such manner as the Minister shall direct.

(5) The Fiscal shall deliver the original to the purchaser and transmit the duplicate to the Registrar of Lands for the district in which the land is situated, in like manner as is or shall be required to be done by notaries in respect of deeds executed before them.

Court may order delivery of possession to purchaser. 531.
(1) Where the property sold is in the occupancy of the judgment-debtor or of some person on his behalf, or of some person claiming under a title created by the judgment-debtor subsequent to the seizure of such property, and a conveyance in respect thereof has been made to the purchaser by the Fiscal, the Court shall, on the application of the purchaser, order delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property and, if need be, by removing any person bound by the decree who refuses to vacate the same.

(2) An order for delivery of possession made under this section may be enforced as a decree to vied up possession of immovable property, the purchaser being considered the judgment-creditor.

(3) Where the property sold is in the occupancy of a tenant or other person entitled to occupy the same, and a conveyance in respect thereof has been made to the purchaser by the Fiscal, the Court shall, on the application of the purchaser, order delivery to be made by affixing a notice of the sale having taken place, both in Sinhala and in any other language prevailing within the district in some conspicuous place on the property, and proclaiming to the occupant in the customary mode or in such manner as the Court may direct, at some convenient place, that the interest of the judgment-debtor has been transferred to the purchaser, and the cost (to be fixed by the Court) of such proclamation shall in every case be prepaid by the purchaser.

Right and title of judgment-debtor not divested by sale till confirmation and execution of Fiscal's conveyance. 532. The right and title of the judgment-debtor or of any person holding under him or deriving title through him to immovable property sold by virtue of an execution shall not be deemed to be divested by the sale until the confirmation of the sale by the Court and the execution of the Fiscal's conveyance. But if the sale is confirmed by the Court and the conveyance is executed in pursuance of the sale, the grantee in the conveyance shall be deemed to have been vested with such right and title from the time of sale.

Fiscal may enter property sold. 533. The Fiscal on the day of the sale or at any time thereafter until the confirmation of the sale by the Court and the execution of the Fiscal's conveyance may, at his discretion, and if provided with the necessary funds therefor by the purchaser or by the judgment-creditor or debtor, himself or by his agent duly authorized in writing, enter into possession of the immovable property sold by virtue of the execution, and retain possession of the same until the confirmation of the sale by the Court and the execution of the conveyance in pursuance thereof.

Possession pending confirmation of sale. 534.
(1) The person in possession of immovable property sold by virtue of an execution may, until the confirmation of the sale by the Court and the execution of the Fiscal's conveyance, use and enjoy the same as follows, without being chargeable with committing waste: -
(a) He may use it and enjoy it in like manner and for the like purposes as it was used and enjoyed before the sale, doing no permanent injury to the property.

(b) He may make the necessary repairs to a building or other erection thereupon. But this provision does not permit an alteration in the form or structure of the building or other erection.

(c) He may use and improve the land in the ordinary course of husbandry, and may collect, gather, harvest, and store the crops and produce thereof, but shall not be entitled to them.

(d) He may apply any wood or timber on the land to effect necessary repairs to a fence, building or other erection which was thereupon at the time of the sale.

(2) On the sale being confirmed by the Court and the conveyance executed in pursuance of the sale, the Fiscal or person in possession of the immovable property sold shall forthwith give possession of the same, together with all the crops and produce (if any) collected, gathered, harvested, and stored subsequent to the sale, to the grantee in the conveyance.

(3) If the sale is not confirmed, the Fiscal or his agent shall forthwith, if in possession, restore the judgment-debtor or any person holding under him to possession of the immovable property together with all the crops and produce (if any) collected, gathered, harvested, and stored whilst the Fiscal or his agent was in possession.

(4) If at any time before the execution of the Fiscal's conveyance, the judgment-debtor, or any other person in possession of the property sold, commits, or threatens to commit, or makes preparations for committing, waste thereupon, the Court from which execution issued may, upon the application of the purchaser or his agent or attorney, and proof by affidavit of the facts, grant, without notice, an order restraining the wrongdoer from committing waste upon the property. If the person against whom such an order is granted commits waste in violation thereof after the service upon him of the order, the Court, upon proof by affidavit of the facts, may order him to show cause at a time and place therein specified why he should not be punished as for a contempt. If upon the return of the order to show cause it appears that such person has violate the former order, the Court may punish him in provided by law for the punishment of contempt of Court.

Sale of a share in any public company. 535. Where the property to be sold is a negotiable instrument or a share in any public or private company or corporation, or Government stock, the Court may direct the Fiscal, instead of selling it by public auction, to make the sale of such instrument or share through a broker at the market rate of the day.

Sale of property other than money. 536.
(1) Where property other than money in the custody of or lying in deposit in a Court is seized, it shall be competent to the Court having the custody of such property, on the application of the judgment-creditor, to direct the Fiscal to sell such property or to make such other order as to it shall seem fit.

(2) Where the Court directs the sale, such property shall be made available and delivered to the Fiscal.

(3) The proceeds of such sale shall be paid into Court to the credit of the action or case in which the property was held in deposit or custody and such Court shall determine all claims to such proceeds of sale.

(4) Where property other than money is seized in the hands of a State officer, the Court shall on the application of the judgment-creditor issue notice on such State officer to show cause why he should not deliver such property to the Fiscal for sale. Where the State officer shows no cause or where the objection preferred by him is disallowed, the Court may direct the delivery of such property to the Fiscal for sale.

(5) Where the right, title and interest of the judgment-debtor in a pending action has been seized, such right, title and interest shall be sold by the Fiscal as if it were movable property; and the purchaser on the execution of an assignment thereof by the Court in his favour, shall be entitled to have himself substituted in place of, or added as a party in addition to, the judgment-debtor in such action, and to proceed with such action.

(6) Where a decree other than one for the payment of money has been seized, such decree shall be sold by the Fiscal as if it were movable property.

Sale of other seized movable property. 537.
(1) Where movable property is sold by the Fiscal by public auction, the price of each lot shall be paid at the time of sale or as soon thereafter as the officer holding the sale directs, and in default of payment, the property shall forthwith be resold.

(2) On payment of the purchase money, the officer holding the sale shall grant a receipt for the same in the prescribed form, and the sale shall become absolute.

Irregularity not to vitiate sale. 538.
(1) No irregularity in publishing or conducting the sale of movable property shall vitiate the sale.

(2) Any person sustaining injury by reason of such irregularity at the hand of any other person may institute an action against him for compensation or (if such other person is the purchaser) for the recovery of the specific property and for compensation in default of such recovery.

Delivery to purchaser. 539.
(1) Where the property sold is a negotiable instrument or other movable property of which actual seizure has been made, the property shall be delivered to the purchaser.

(2) Where the property sold is any movable property to which the judgment-debtor is entitled, subject to a right of possession of some other person, the delivery thereof to the purchaser shall be made by giving notice to the person in possession prohibiting him from delivering possession of the property to any person except the purchaser.

(3) Where the property sold is a debt not secured by a negotiable instrument, or is a share in any public or private company or corporation, the assignment thereof shall be made by a certificate of sale in favour of the purchaser signed by the Fiscal, who shall forthwith by a written notice prohibit the judgment-debtor from receiving the debt or any interest thereon, and the garnishee from making payment thereof to any person except the purchaser, or the person in whose name the share may be standing from making any transfer of the share to any person except the purchaser, or receiving payment of any dividend or interest thereon, and the manager, secretary, or other proper officer of the company from permitting any such transfer or making any such payment to any person except the purchaser.

Endorsement of negotiable instrument of share 540.
(1) Where the endorsement or the execution of a document by the party in whose name a negotiable instrument or a share in any public or private company or corporation is standing is required for the transfer of such negotiable instrument or share, the Judge may make or execute such endorsement or document as may be necessary, and such endorsement or execution shall have the same effect as an endorsement or execution by the party.

(2) The endorsement or execution shall be in the following form or to the like effect:

"A. B. by C. D., Judge of District Court of ............... (or as the case may be) in action by E. F. against A. B."

(3) Until the transfer of such negotiable instrument or share the Court may by order appoint some person to receive any interest or dividend due thereon, and to sign a receipt for the same; and any endorsement made, or document executed, or receipt signed as aforesaid shall be as valid and effectual for all purposes as if the same had been made, or executed, or signed by the party himself.

Power of Court to make vesting order. 541. In the case of any movable property not herein before provided for, the Court may make an order and execute such document as may be necessary vesting such property in the purchaser or as he may require and such property shall vest accordingly.

Terms and conditioner of sale may be imposed by Court. 542. The Court may upon the application of the judgment-creditor or judgment-debtor impose such terms and conditions, if any, as to it shall seem proper in regard to the sale of any movable property.

EXECUTION OF DECREE FOR DELIVERY OF IMMOVABLE PROPERTY

Decree for death very of movable property. 543.
(1) Where the decree is for the delivery of any specific movable property or for any share in a specific movable property, the Fiscal shall, upon receiving the writ of execution, seize the said specific movable or share thereof and deliver the same to the judgment-creditor or to the person authorized by him to receive it.

(2) If the Fiscal is unable to obtain for the judgment-creditor delivery of the specific movable or share thereof mentioned in the writ, he shall forthwith proceed to recover the amount of money specified in the writ to be paid as an alternative, by seizure and sale of the judgment-debtor's property.

(3) Where any writ referred to in subsection (2) remains unsatisfied, it shall be competent to Court to proceed against the judgment-debtor in the manner provided in subsection (8) of section 496 and adjudge the judgment-debtor an insolvent, and in such event, the provisions of subsections (6) and (9) of that section shall, mutatis mutandis, apply.

EXECUTION OF DECREE FOR POSSESSION OF IMMOVABLE PROPERTY

Decree for possession of immovable property. 544.
(1) If the judgment or decree is for the recovery of possession of immovable property or any share thereof by the judgment-creditor, or if it directs the judgment-debtor to yield or deliver up possession thereof to the judgment-creditor, the Fiscal shall, upon receiving the writ of execution, forthwith repair to the ground, and there deliver over possession of the property described in the writ to the judgment-creditor or to some person appointed by him to receive delivery on his behalf, and if need be by removing any person bound by the decree who refuses to vacate the property.

(2) Where the judgment-creditor has reason to believe that the delivery of possession to him may be attended by force or violence offered by the judgment-debtor he may apply to the Court from which the writ issued for an order on the officer in charge of any police station to render to the Fiscal all such assistance as may be necessary, and the officer in charge of such police station is empowered and hereby required to render all such assistance as may be necessary to enable the Fiscal to deliver possession of the property to the judgment-creditor.

(3) The judgment-creditor shall pay to the police officer or to the officer in charge of the police station, as the case may be, all such expenses as may be incurred in providing the assistance required.

Explanation "police officer " and "officer in charge of a police station" shall the same meanings respectively as in Chapter II of this Law.

(4) Where possession of any building or enclosure is to be delivered and the person in possession being bound by the decree does not afford free access, the Fiscal may remove or open any lock or bolt or break open any door or gate or do any other act necessary for putting the decree-holder in possession.

(5) Where possession of an undivided share in immovable property is to be delivered, such possession shall be delivered by affixing a copy of the writ in some conspicuous place on the property and proclaiming in the customary mode or in such manner as the Court may direct, the substance of the writ.

(6) Where decree is entered in a tenancy action for placing the landlord in possession of the premises let by ejecting the tenant therefrom, the Fiscal shall deliver over possession by ejecting the tenant and subtenants, if any, who are liable to be ejected under any law for the time being in force. Where the premises or a part thereof is in the possession of a subtenant not liable to be ejected therefrom, the Fiscal shall deliver possession of the premises or such part thereof in manner prescribed by the next succeeding subsection.

(7) Except in cases of delivery of possession of property to a landlord as provided in the preceding subsection where the property or any part thereof is in the occupancy of a tenant or other person entitled to occupy the same as against the judgment-debtor and not bound by the decree to relinquish such occupancy, the Fiscal shall give delivery of such property or part thereof by affixing a copy of the writ in some conspicuous place on the property and proclaiming to the occupant in the customary mode or in such manner as the Court may direct, the substance of the writ in regard to the property. If the occupant can be found, a notice in writing containing the substance of such decree shall be served upon him, and in such case no proclamation need be made.

Resistance to execution of proprietary. 545.
(1) Where in the execution of a decree for the possession of movable or immovable property the Fiscal is resisted or obstructed by the judgment-debtor or any other person, or where after the officer has delivered possession, the judgment-creditor is hindered or ousted by the judgment-debtor or any other person in taking complete and effectual possession thereof, and in the case of immovable property, where the judgment-creditor has been so hindered or ousted within a period of one year and one day, the Fiscal or the judgment-creditor, as the case may be, may at any time within one month from the date of such resistance or obstruction or hindrance or ouster, complain thereof to the Court by a petition in which the judgment-debtor and the person, if any, resisting or obstructing or hindering or ousting shall be named respondents. The Court shall thereupon serve a copy of such petition on the parties named therein as respondents and require such respondents to file objections if any within such time as they may be directed by Court.

(2) When a petition under subsection (1) is presented, the Court shall direct the Fiscal to publish a notice announcing that the Fiscal has been resisted or obstructed in delivering possession of such property, or that the judgment-creditor has been hindered in taking complete and effectual possession thereof or ousted therefrom, as the case may be, by the judgment-debtor or other person, and calling upon all persons claiming to be in possession of the whole or any part of such property by virtue of any right or interest and who object to possession being delivered to the judgment-creditor to notify" their claims to Court within fifteen days of the publication of the notice.

(3) The Fiscal shall make publication by affixing a copy of the notice both in Sinhala and in any other language prevailing within the district in some conspicuous place on the property and proclaiming in the customary mode or in such manner as the Court may direct, the contents of the notice, A copy of such notice shall be affixed to the Court-house, and shall also be published in any daily newspaper as the Court may direct.

(4) Any person claiming to be in possession of the whole of the property or part thereof as against the judgment-creditor may file a written statement of his claim within fifteen days of the publication of the notice in such newspaper, setting out his right or interest entitling him to the present possession of the whole property or part thereof and shall serve a copy of such statement on the judgment-creditor. The investigation into such claim shall be taken up along with the inquiry into the petition in respect of the resistance, Destruction, hindrance or ouster complained of, after due notice of the date of such investigation and inquiry has been given to all persons concerned.

(5) On the hearing of the matter of the petition and of the claim made, if any, the Court if satisfied,-
(a) that the resistance, obstruction, hindrance or ouster complained of was occasioned by the judgment-debtor or by some person at his instigation or on his behalf,

(b) that the resistance, obstruction, hindrance or ouster complained of was occasioned by a person other than the judgment-debtor, and that the claim of such person to be in possession of the property, whether on his own account or on account of some person other than the judgment-debtor, is frivolous or vexatious, or

(c) that the claim made, if any, has not been established,

shall direct the judgment-creditor to be put into or restored to the possession of the property and may, in the case specified in sub-paragraph (a), in addition deal with the judgment-debtor or such other person in the manner provided by law for the punishment of contempt of Court.

(6) Where any claim is established only to a share of any property, it shall be competent to Court in any order made under the preceding subsection to direct that the judgment-creditor be put into or restored to possession of such share of the property to which no claim has been established.

(7) The Court may make such order as to the costs of the application, the charges and expenses incurred in publishing the notice and the hearing and the reissue of writ.

(8) Where the resistance or obstruction or hindrance or ouster is found by Court to have been occasioned by any person other than the judgment-debtor, claiming in good faith to be in possession of the whole of such property on his own account or on account of some person other than the judgment debtor by virtue of any right or interest, or where the claim notified is found by the Court to have been made by a person claiming to be in possession of the whole of such property on his own account by virtue of any right or interest or on account of some person other than the judgment-debtor, the Court shall make order dismissing the petition.

(9) Where any person other than the judgment-debtor or a person in occupation under him is dispossessed of any property in execution of a decree, he may, within fifteen days of such dispossession, apply to the. Court by petition in which the judgment-creditor shall be named respondent complaining of such dispossession. The Court shall thereupon serve a copy of such petition on such respondent and require such respondent to file objections, if any, within fifteen days of the service of the petition on him. Upon such objections being filed or after the expiry of the date on which such objections were directed to be filed, the Court shall, after notice to all parties concerned, hold an inquiry. Where the Court is satisfied that the person dispossessed was in possession of the whole or part of such property on his own account or on account of some person other than the judgment-debtor, it shall by order direct that the petitioner be put into possession of the property or part thereof, as the case may be.

(10) Any order made under subsection (5) or subsection (6) or subsection (8) or subsection (9) against any party other than the judgment-debtor shall not bar the right of such party to institute an action to establish his right or title to such property.

(11) Any subsequent resistance, obstruction, hindrance or ouster to the execution of the writ shall be dealt with summarily in the manner [provided law for the punishment of contempt of Court.

EXECUTION OF DECREE FOR CONVEYANCE OR TRANSFER OF PROPERTY

Decree for execution of conveyance or transfer of property. 546.
(1) Where the decree is for the execution of a conveyance, contract or other document or for the endorsement of a negotiable instrument, the judgment-creditor may prepare a draft of the conveyance, contract or other document or endorsement in accordance with the terms of the decree, and apply to the Court by petition, not naming a respondent, to have such document executed, and the Court shall, after altering the draft, if necessary, so as to bring it in accordance with the terms of the decree, and on the judgment-creditor supplying stamps of the proper amount, if stamps are required by law, execute it.

(2) The execution of a conveyance, contract or other document, or the endorsement of a negotiable instrument by the Court under this section shall be in the following form:

CD., Judge of the Court of....................................... (or as the case may be), for A.B., in an action by E.F. against A.B.

" and shall have the same effect as the execution of the conveyance, contract or other document or the endorsement of the instrument by the party ordered to execute or endorse the same.

(3) Where such conveyance, contract or other document relates to immovable property, such conveyance, contract or other document shall be executed in triplicate. The original of such conveyance, contract or other document shall be delivered to the judgment-creditor, the duplicate transmitted to the Registrar of Lands for the district in which the land is situated in like manner as is or shall be required to be done by notaries in respect of deeds executed before them, and the triplicate filed of record.

(4) Such conveyance, contract or other document shall be binding and of force though not executed before a notary public.

EXECUTION OF MANDATORY AND RESTRAINING DECREES

Mandatory or restraining decrees. 547.
(1) Where a decree commanding the person against whom it operates to do any act other than to pay money, deliver movable property, yield up possession of immovable property, or grant, convey or otherwise pass from himself any right to or interest in any property, has been passed, or where a decree enjoining the person against whom it operates not to do a specified act or to abstain from specified conduct or behaviour, has been passed and the judgment-debtor has had an opportunity of obeying the decree but has wilfully failed to obey it, application to the Court for execution or enforcement of the decree may be made by the judgment-creditor by petition to which the judgment-debtor shall be made respondent and which shall set out the damage, if any, caused to the judgment-creditor by the disobedience of the judgment-debtor to the decree.

(2) Where the Court on the hearing of such application is satisfied that the judgment-creditor is entitled to obtain execution or enforcement of the decree, it shall issue a writ to the Fiscal directing the execution of the act to be done as far as practicable, and either at the same time or subsequently thereto issue a writ for the recovery of the expenses of executing the act and of damages that may have been sustained by the judgment-creditor by reason of the default on the part of the judgment-debtor.

(3) Where the decree enjoins the judgment-debtor not to do a specified act or to abstain from specified conduct or behaviour, and the judgment-debtor does not refrain from doing a specified act or abstain from the specified conduct or behaviour, the Court may deal with him in the manner provided by law for the punishment of contempt of Court and where the judgment-debtor is sentenced to a term of imprisonment the expenses of such imprisonment shall be recovered by issue of writ against the property of the judgment-debtor.

(4) Where the judgment-debtor is a corporation or company, the directors or principal officers shall be liable to be punished and to have writ issued against their personal property as if each of them was the judgment-debtor.

(5) The damages for which writ may be issued under this section shall be the amount of the pecuniary loss, if any, as nearly as the Court can estimate it, which is occasioned to the judgment-creditor by reason of the judgment-debtor's default in obeying the decree and which the Court shall award by way of compensation to the judgment-creditor.

GENERAL PROVISIONS RELATING TO EXECUTION

Concurrence and preference. 548.
(1) Money which in the course of an action or in satisfaction of a decree has been paid into and received by the Court shall be paid out to the person entitled to the same on his ex parte application.

(2) Where,-
(a) before money realized in execution of a decree other than money received or seized by the Fiscal under section 514 is paid to the decree-holder in the action in which the execution issued, or

(b) before money other than money realized in execution of a decree is paid to a judgment-creditor seizing such money,

notice is given to the Court of any claim to such money,-
(i) by a person claiming to be entitled to preferential payment by reason of any mortgage, charge or lien in his favour,

(ii).by a person holding a decree against the same judgment-debtor, whether entered by the same or another Court, or

(iii) by the Fiscal in respect of claims of other writ-holders whose writs he had in his hands at the time of the sale in cases where a sale is carried out by him in execution,

the money shall first be paid to the persons, if any, entitled to receive payment preferentially, and shall next be ratably distributed among the decree-holders in the action or the judgment-creditor seizing such money and all other decree-holders whose claims have been notified to Court under paragraphs (ii) and (iii) above.

(3) Before the Court makes order under the preceding subsection, notice shall be given to the parties to the action and all persons whose claims have been notified to Court under that subsection that the Court will on a day to be specified in the notice proceed to hear and determine the claims to the money in Court.

(4) On the day so specified or on some other day to which the Court may for sufficient cause adjourn the hearing, the Court shall proceed to hear and adjudicate upon the claims made and make such order as the justice of the case may require, or the Court may, if in its opinion any claim cannot be conveniently heard and adjudicated upon, refer the parties to a separate action, and may continue to hold the money or any part thereof pending the decision of the separate action.

Execution of decree against legal representatives of a deceased person. 549.
(1) If the decree is against a party as the legal representative of a deceased person, for money to be paid out of the property of the deceased, it may be 1 executed by the seizure and sale of any such property in the hands or under the control of the party against whom the decree is made.

(2) If no such property can be found, and the judgment-debtor fails to satisfy the Court that he has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment-debtor to the extent of the property not duly applied by him, in the same manner as if the decree had been against him personally.

Execution against surety. 550. Where any person has become liable as surety,-
(a) for the performance of any decree or any part thereof, or

(b) for the restitution of any property taken in execution of a decree,

the decree may be executed against him to the extent to which he has rendered himself personally liable upon application made by the judgment-creditor to the Court for that purpose by a petition to which the person sought to be made liable as surety shall be made respondent.

Decree-holder to certify payment, &c., to the Court. 551.
(1) Where any money payable under a decree is paid out of Court, or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly.

(2) The judgment-debtor also may by petition inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree-holder to show cause on a day to be fixed by the Court why such payment or adjustment should not be recorded as certified; and if after due service of such notice the decree-holder fails to appear on the day fixed, or having appeared fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly.

(3) No such payment or adjustment shall be recognized by the Court executing the decree unless it has been certified or recorded as aforesaid.

Application by one of several decree-holders for execution of the decree for the benefit of all. 552.
(1) Where a decree has been passed jointly in favour of more persons than one, any one or more of such persons, or his or their legal representatives may apply for the execution of the whole decree for the benefit of them all, or, where any of them has died, for the benefit of the survivors and the legal representatives of the deceased.

(2) The application for this purpose shall be made by petition to which the co-decree-holders or their representatives as well as the judgment-debtor shall be respondents.

(3) Where the Court sees sufficient cause for allowing the decree to be executed on an application so made, it shall make such order as it deems necessary for protecting the interests of the persons who have not joined in the application. (4) In the event of any dispute arising as to who is the legal representative, such question shall be determined by Court.

Application by assignees of a decree for execution thereof, how to be made. 553.
(1) Where a decree, or if a decree has been passed jointly in favour of more persons than one the interest of any decree-holder in the decree, is transferred by assignment in writing or by operation of law from the decree-holder to any other person, the transferee may apply for its execution by petition, to which all the parties to the action or their representatives shall be made respondents, to the Court which passed it, and if on that application the Court thinks fit, the transferee's name may be substituted for that of the transferor in the record of the decree, and the decree may be executed in the same manner and subject to the same conditions as if the application was made by such decree-holder.

(2) Where the decree has been transferred by operation of law, the transferor need not he made respondent to the petition.

(3) Where a decree for the payment of money against several persons has been transferred to one of them, it shall not be executed against the others,

(4) Every transferee of a decree shall hold the same subject to the equities (if any) which the judgment-debtor might have enforced against the original decree-holder.

Legal representative of deceased debtor how made liable. 554.
(1) Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it, by petition. to which the legal representative of the deceased shall be made respondent, to execute the same against the legal representative of the deceased.

(2) Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and for the purpose of ascertaining such liability the Court executing the decree may on the application of the decree-holder compel the said representative to produce such accounts as it thinks fit.

All questions arising in execution to be determined by order of Court and not by separate action. 555.
(1) All questions arising between the parties to the action in which the decree was passed, or their legal representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by order of the Court executing the decree, and not by a separate action.

(2) Where a question arises as to whether a person is or is riot the representative of party, such question shall be determined by Court.

(3) An execution purchaser shall, for the purpose of this section, be deemed a party to the action.

Execution to issue for excess in case of cross-decrees. 556.
(1) Where applications are made to a Court for the execution of cross-decrees in separate actions for the payment of two sums of money passed between the same parties and capable of execution at the same time by such Court, then,-
(a) if the two sums are equal, satisfaction shall be entered upon both decrees; and

(b)if the two sums are unequal, execution may be taken out only by the holder of the decree for the larger sum and for so much only as remains after deducting the smaller sum, and satisfaction for the smaller sum shall be entered on the decree for the larger sum as well as satisfaction on the decree for the smaller sum.

(2) This section shall be deemed to apply where either party is an assignee of one of the decrees and as well in respect of judgment-debts due by the original assignor as in respect of judgment-debts due by the assignee himself.

(3) This section shall not be deemed to apply inless-
(a) the decree-holder in one of the actions in which the decrees have been made is the judgment-debtor in the other and each party fills the same character in both actions; and

(b) the sums due under the decree are definite.

(4) The holder of a decree passed against several persons jointly and severally may treat it as a cross-decree in relation to a decree passed against him singly in favour of one or more of such persons.

Illustration (a) A holds a decree against B for Rs. 1,000. B holds a decree against A for the payment of Rs. 1,000 in case A fails to deliver certain goods at a future day, B cannot treat his decree as a cross-decree under this section. (b)A and B, co-plaintiff, obtain decree for Us. 1,000 against C, and C obtains a decree for Kg. 1,000 against B. C cannot treats his decree as a cross-decree under this section. (c) A obtains a decree against B for Rs. 1,000. C who is trustee for B obtain a decree on behalf of B against A for Rs. 1,000 B cannot treat C's decree as a cross-decree under this section. (d) A. B, C, D and E are jointly and severally liable for Rs. 1,000 under a decree obtained by F. A obtains a decree for Rs. 100 against F singly and applies for execution to the Court in which the joint decree is being executed. F may treat his joint decree as a cross-decree under this section.

Execution in case of cross-claims under decree. 557. Where application is made to a Court for the execution of a decree under which two parties are entitled to recover sums of money from each other, then,
(a) if the two sums are equal, satisfaction for both shall be entered upon the decree; and

(b) if the two sums are unequal, execution may be taken out only by the party entitled to the larger sum and for so much only as remains after deducting the smaller sum and satisfaction for the smaller sum shall be entered upon the decree.

Where the same property is seized in execution of decrees of more Courts than one. 558. Where property not in the custody of any Court has been seized in execution of decrees of more Courts than one, the Court which receives or realizes such property shall determine any claim thereto and any objection to the seizure thereof shall be determined by the Court of higher grade, or, where there is no difference in grade between such Courts, the Court under whose decree the property was first seized.

Order for payment of money enforced as a decree. 559. Every order made by a Court in any action or proceeding between parties for payment of money not being a fine, shall have the effect of a decree for the payment of money, and on default of payment according to its terms shall be enforceable upon the application of the party at whose instance it was made in like manner as a decree for money.

Fine imposed by Court how to be levied. 560. In the event of an order being made by a Court under the provisions of this Chapter for the payment of a fine, and in the event of the fine not being paid into Court at the time appointed therefor by the order, the amount of the said fine shall be recovered in the manner prescribed in Chapter II of this Law.

Process of execution. 561.
(1) Every process of execution issuing from any Court shall have full force and validity in every place throughout Sri Lanka.

(2) It shall be the duty of every State officer, upon receiving any process directed to him by any Court, by himself or by his officers to execute such process according to the exigency thereof.

(3) The person employed in carrying into effect any process of execution against either person or property shall always have with him the writ, warrant, mandate, or command, or a copy of the same authenticated by the Fiscal which shall, if required, be produced and shown to the party against whom, or against whose property, it is sought to be put in force.

(4) Every Judge shall have power and authority to punish as for contempt of Court every State officer who neglects or refuses to execute, or to aid or assist in executing, any process.

Protection of officer executing process. 562.
(1) Every person charged under this Chapter with the duty of carrying into effect any process of execution shall be protected thereby from civil liability for loss or damage caused by, or in the course of, or immediately consequential upon, the execution of such process by him, except when the loss or damage for which the claim is made is attributable to any fraud, gross negligence, or gross irregularity of proceeding, or gross want of ordinary diligence or abuse of authority on the part of the person executing such process.

(2) Notwithstanding any other provision in this Chapter to the contrary, no action shall be maintainable against any person charged as aforesaid with the duty of executing any such process in respect to his execution thereof, unless previous notice in writing distinctly setting forth the grounds of such action was given to him by or on behalf of the plaintiff one month at least before the commencement of such action and unless such action is brought within three months after the cause of action arose.

(3) It shall be lawful for the person to whom such notice of action has been given at any time before the commencement of such action to tender amends in a sum of money to the party aggrieved and, if the same is refused, to plead such tender at the same time paying into Court for the use of the plaintiff the amount so tendered.

(4) Where the Court by its judgment in the action holds that the amount so tendered and paid into Court is sufficient amends for the party aggrieved, decree shall be passed in favour of the plaintiff but he shall be ordered to pay all costs.

(5) The seizure or sale of property which does not belong to the person whose property is authorized to be seized and sold shall not be deemed to be an act done by or in the course of nor an immediate consequence of the execution of any process within the meaning of subsection (1). But no person charged as aforesaid, shall be liable in damages for any such seizure or sale if the same shall be shown to have been effected under the bona fide belief that the property belonged to the person whose property is authorized to be seized or sold.

Return to process. 563. Where a writ, warrant, mandate, or command for execution, has been carried into effect, the Fiscal shall report to Court in the prescribed form stating the mode in which the process has been executed. or the steps which had been taken to effect execution, and accompanied by an affidavit made by the officer charged with the duty of executing the process, which affidavit shall set out the facts of the execution effected, or of the endeavour made by the officer to effect the execution. The process and the affidavit shall be attached to the report as exhibits.

SUMMARY PROCEDURE

Application to be made by 'petition. 564.
(1) Every application to the Court, or action, of summary procedure shall be instituted by presenting a written petition which shall comply with the provisions of this Chapter relating to pleadings in so far as applicable.

(2) The petition shall contain the following particulars,-
(a) the name of the Court, the date of presenting the petition, and, where the application is made as incidental to a pending action, the number of such action;

(b) the name, description and place of residence or business of the petitioner, together with the registered address;

(c) the name, description and place of residence or business or registered address of the respondent as far as can be ascertained;

(d) facts showing that the Court has jurisdiction, save where the application is made as incidental to a pending action;

(e) a plain and concise statement of the facts constituting the ground of the application and its circumstances and of the petitioner's right to make it, such statement being set forth in duly numbered paragraphs;

(f) a prayer for the relief or order which the petitioner seeks.

(3) With the petition, and so far as conveniently can be attached thereto, shall be exhibited such affidavits and other documentary evidence as may be requisite to furnish prima facie proof of the material facts set out or alleged in the petition, or the Court may in its discretion permit or direct the petitioner to adduce oral evidence before the Court for this purpose, which shall be taken down or caused to be taken down by the Court in writing.

If grounds sufficient, order may be made nisi or interlocutory. 565.
(1) If the Court is satisfied on the evidence exhibited or adduced that the material facts of the petition are prima facie established, or is of opinion that the petitioner is entitled to the remedy, or to the order, for which the petition prays, or any part thereof, the Court shall accordingly make either,-
(a) an order nisi, conditioned to take effect in the event of the respondent not showing cause against it on a day appointed for that purpose; or

(b) an interlocutory order appointing a day for the determination of the matter of the petition, and intimating to the respondent that the matter will be inquired into on that day in accordance with the procedure set out in section 568.

(2) The order nisi may comprise an order against the respondent, or any of the respondents, to pay the costs of the petitioner.

(3) A copy of the order together with a copy of the petition shall be served on the respondent,-
(a) where he has not appeared or entered appearance, in the manner prescribed for and subject to the provisions relating to the service of summons in a regular action,

(b) where he has appeared or entered appearance, in the manner prescribed for and subject to the provisions relating to the service of legal documents.

(4) If the Court is not satisfied on the evidence exhibited or adduced that the material facts of the petition are prima facie established, and is of opinion that the petitioner is not entitled to the relief which he asks, the Court shall refuse the application.

Non appearance of parties. 566.
(1) If on the appointed day the petitioner does not appear before the Court to support the petition, the Court shall dismiss the petition and may make such order for the payment of costs as to the Court shall seem just.

(2) If on such day the petitioner appears, and the respondent does not appear, and if the Court is satisfied that the order has been duly served upon the respondent in time reasonably sufficient to enable him to appear,-
(a) if the order is an order nisi, the Court shall make it absolute;

(b) if the order is an interlocutory order, it shall after such inquiry as it deems necessary make such order within the prayer of the petition as it shall consider right on the facts proved:

Provided that nothing in this section shall prevent the Court from dismissing the petition at this stage in the absence of the respondent, if it thinks that the order ought not to have issued in the first instance.

(3) Where a petition has been dismissed for default of appearance, the petitioner may apply with notice to the respondent within a reasonable time from the date of dismissal by petition supported by affidavit to have the order of dismissal set aside, and if on the hearing of such application the Court is satisfied that there was good cause for the non-appearance of the petitioner, the Court shall make order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the determination of the matter as from the stage at which the dismissal for default was made.

(4) Where a final order has been made against the respondent consequent upon his non-appearance, he may, within a reasonable time after the passing of the order against him, apply with notice to the petitioner by petition supported by affidavit to have the order set aside, and if the Court on such application is satisfied,-
(a) that the order nisi or interlocutory order had never been served upon him, or

(b) that having been served with the order nisi or interlocutory order there was good cause for his non-appearance,

the Court shall make order setting aside the final order upon such terms and conditions as the Court shall consider fit to impose upon him, and upon the order being so set aside, the Court shall proceed with the hearing and determination of the matter of the original petition as from the stage at which the final order so set aside was made.

(5) No appeal shall lie against any order entered for non-appearance.

(6) The order setting aside or refusing to set aside an order entered for non-appearance shall be subject to an appeal to the Supreme Court.

Proceeding on appearance of parties. 567.
(1) If on such day the parties appear in Court, and the respondent,-
(a) shows no cause, the Court shall proceed to make any order it could have made under the preceding section;

(b) files a statement of objections, the Court shall fix a date for the determination of the application inter partes.

(2) The statement of objections shall comply with the provisions relating to pleadings so far as they are applicable and shall be supported by affidavit and with it shall be exhibited such other affidavits and . documentary evidence as may be requisite to furnish prima facie proof of the material facts set out or alleged therein.

Determination. 568.
(1) On the day so fixed the Court may proceed to determine the matter of the petition upon the pleadings, affidavits and documents filed by the petitioner and respondent and after hearing them.

(2) Where the Court is of opinion that it is desirable or necessary that cross-examination should be permitted in regard to any disputed fact deposed to in an affidavit the Court may so permit, and in that event the cross-examination and re-examination, if any, shall be confined to the elucidation of such disputed fact.

(3) Where the Court is of opinion that it is desirable to frame issues of fact or law, such issues shall be settled by Court upon the pleadings and other documents filed of record and after such examination of the petitioner and respondent as may appear necessary, and the Court shall proceed to determine the issues in conformity with, as nearly as may be, the provisions relating to the determination of issues arising upon a trial in an action of regular procedure.

(4) Where the Court is of opinion, on the application of the parties, that the matter in dispute could appropriately be determined by arbitration, the Court shall proceed to so determine upon the pleadings, affidavits and documents and after such questioning of the parties as to the Court may appear necessary:

Provided that no appeal shall lie against an award made consequent on proceedings held under this subsection.

(5) At the conclusion of the proceedings the Court shall pronounce its final order either at once or on some future day of which notice shall be given at the termination of the hearing.

(6) The final order so pronounced shall be endorsed on the order nisi or on the interlocutory order, as the case may be.

Dismissal of petition in certain cases. 569. Without prejudice to the power conferred by section 664, the Court may at any stage dismiss the petition and make such order for payment of posts as to it shall seem just, if it is satisfied that any affidavit filed by the petitioner contains a false statement of fact or that the petitioner has in such affidavit suppressed or concealed any material fact.

Rules relating to regular procedure where not inconsistent to apply. 570. The provisions relating to actions of regular procedure contained in this Chapter so far as they are applicable and are not inconsistent, shall apply to an application or action by way of summary procedure, subject to such modifications as may be necessary.

When summary procedure is applicable. 571. Where under any written law no special procedure is prescribed for the making of an application to Court, such application shall, unless there is something in the subject or context repugnant thereto, be made by petition by way of summary procedure.

INCIDENTAL PROCEEDINGS

Action does not abate on death of party If right to sue survives. 572.
(1) The death of a plaintiff or defendant shall not cause the action to abate if the right to sue on the cause of action survives.

(2) Where there are more plaintiffs or defendants than one and any of them dies, and 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 application made in that behalf, make an order to the effect that the action do proceed at the Instance of the surviving plaintiff, or against the surviving defendant.

(3) Where there are more plaintiffs than one, and any of them dies, and the right to sue does not survive to the surviving plaintiff alone, but survives to him and the legal representative of the deceased plaintiff jointly, the Court may cause such legal representative, if any, to be made a party, and shall proceed with the action. A legal representative shall mean an executor or administrator or, in the case of an estate below the value of twenty thousand rupees, the intestate heirs of the deceased. In the event of any dispute arising as to who is the legal representative of a deceased plaintiff, it shall be competent to the Court either to stay the action until the question has been decided in appropriate proceedings, or to decide at once as between the parties before it, who shall be admitted to be such legal representative for the purpose of prosecuting the action. This question shall in such case be dealt with and tried by the Court as a preliminary issue.

(4) Where there is only one plaintiff and he dies, the legal representative of the deceased may, where the right to sue survives, apply to the Court to have his name entered on the record in place of the decease plaintiff, and the Court shall thereupon enter his name and proceed with the action. If no such application is made within a period of six months of the death of such plaintiff, the Court may order the action to 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, or may, if it thinks proper, on the application of the defendant, and upon such terms as to costs or otherwise as it thinks fit, bring in the legal representative of the deceased plaintiff or otherwise proceed with the action in order to reach a final determination of the matter in dispute.

(5) Where there are more defendants than one, and any of them dies before decree and the right to sue on the cause of action does not survive against the surviving defendant alone, or on the death of a sole defendant, where the right to sue survives, the plaintiff may make an application to the Court specifying the name, description 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 the action. The Court shall thereupon, on being satisfied that there are grounds therefor, enter the name of such representative on the record, and shall require him to appear in Court to defend the action, and the case shall thereupon proceed in the same manner as if such representative had originally been made a defendant, and had been a party to the former proceedings in the action:

Provided, however, that in the case of an estate below the value of twenty thousand rupees no intestate heir who has not intermeddled with the estate of the deceased shall be liable to be substituted as the legal representative of the deceased defendant:

Provided further that the person so made defendant may object that he is not the legal representative of the deceased defendant, or may make any defence appropriate to his character as such representative.

(6) 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, stall apply to the application and to the proceedings and consequences ensuing thereon.

Action to proceed mot withstanding marriage of female party. 573.
(1) Any action may proceed to judgment notwithstanding the marriage of a female plaintiff or defendant.

(2) Where the decree is against a female defendant, it may be executed against her alone and where the husband is by law liable for the debts of his wife, the decree may, on application made to Court, be executed against the husband also; and in case of judgment for the wife, execution of the decree may be issued upon the application of the husband, where the husband is by law entitled to the subject-matter of the decree.

Effect of insolvency. 574. The insolvency of a plaintiff in any action which his assignee might maintain for the benefit of his creditors shall not bar the action, unless such assignee declines to continue the action and to give security for the costs thereof within such time as the Court may order. Where the assignee neglects or refuses to continue the action and to give such security within the time so ordered, the defendant may apply for the dismissal of the action on the ground of the plaintiff's insolvency, and the Court may dismiss the action and award to the defendant the costs which he has incurred in defending the same, to be proved as a debt against the plaintiff's estate.

Court may order action to abate. 575. If a period exceeding six months elapses after the date of the last entry of an order or proceeding in the record without the plaintiff taking any step to prosecute the action where any such step is necessary, the Court may pass an order that the action shall abate.

Explanation Where the plaintiff dies pending action, no order can be made under tills section.

Consequences of abatement or dismissal. 576.
(1) Where an action abates or is dismissed no fresh action shall be brought on the same cause of action.

(2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee of an insolvent plaintiff may, within such period of time as may seem to the Court under the circumstances of the case to be reasonable, apply for an order to set aside the order of abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the action, the Court shall set aside its order upon such terms as to costs or otherwise as it thinks fit.

Continuation of action in cases of assignment of party's interest. 577. In cases of assignment, creation or devolution of any interest pending the action, the action may, with the leave of the Court given either with the consent of all parties or after service of notice upon them and hearing their objections, if any, be continued by or against the person to whom such interest has come, either in addition to or in substitution for the person from whom it has passed, as the case may require.

How application to be made. 578. In every application made under section 572, section 573, section 574, section 575, section 576 of section 577, all the parties to the action, not being the applicants, or such of them as may be affected by the order sought, shall be made respondents on the face of the application. The application shall be in the form of a petition, and the facts contained therein shall be verified by affidavit:

Provided that an application under subsection (5) or subsection (6) of section 572 may be made ex parte.

Withdrawal of action. 579.
(1) At any time after the institution of an action the plaintiff may, as against all or any of the defendants, withdraw his action or abandon part of his claim.

(2) Where the Court is satisfied-
(a) that an action must fail by reason of some formal defect, or-

(b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh action for the subject-matter of an action or part of a claim

the Court may, on such terms as it thinks fit, grant the plaintiff permission to withdraw such action or abandon such part of a claim with liberty to institute a fresh action in respect of the subject-matter of such action or such part of a claim.

(3) Where the plaintiff withdraws an action as against all or any of the defendants or abandons part of a claim, he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh action against any or all of such defendants, as the case may be, in respect of such subject-matter or such part of the claim, unless the Court had at the time of such withdrawal or abandonment permitted the plaintiff to reserve the right to bring such fresh action

(4) Nothing in this section shall be deemed to authorize the Court to permit one of several plaintiffs to withdraw without the consent of the others.

(5) In any fresh action instituted on permission granted under this section, the plaintiff shall be bound by the law of prescription in the same manner as if the first action had not been instituted.

Adjustments of action. 580.
(1) If an action is adjusted wholly or in part by any lawful agreement or compromise, or if the defendant satisfies the plaintiff in respect to the whole or any part of the subject-matter of the action, such agreement, compromise, or satisfaction shall be notified to the Court by motion made in the presence of. or on notice to, all the parties concerned, and the Court shall enter judgment in accordance therewith, so far as it relates to the action, and such judgment shall he final, so far as relates to so much of the subject-matter of the action as is dealt with by the agreement, compromise or satisfaction.

(2) Where an adjustment is in respect of an action-
(a) instituted or defended in a representative character, or

(b) relating to a public or charitable trust, no judgment in accordance with such adjustment shall be entered by Court unless after notice to and hearing the objections, if any, of all persons on whose behalf the action has been instituted or defended and of all persons beneficially interested.

(3) The notice required to be given under the preceding subsection shall be either by the manner prescribed for the service of summons, or if from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the Court may direct.

Payment of money into Court in satisfaction of claim. 581.
(1) The defendant in any action brought to recover a debt or damages may, at any stage of the action, deposit in Court such sum of money as he considers a satisfaction in full of the plaintiff's claim.

(2) Notice of the deposit shall be given by the defendant to the plaintiff, and the amount of the deposit shall (unless the Court otherwise directs) be paid out of Court to the plaintiff on his application.

(3) No interest shall be allowed to the plaintiff on any sum deposited by the defendant from the date of the receipt of such notice, whether the sum deposited is in full satisfaction of the claim or falls short thereof.

(4) Where the plaintiff accepts such amount as satisfaction in part only of his claim, he may prosecute his action for the balance; and if the Court eventually decides that the deposit by the defendant was a full satisfaction of the plaintiff's claim, the plaintiff shall pay the costs incurred after the deposit and the costs previous thereto so far as they were caused by excess in the plaintiff's claim.

(5) Where the plaintiff accepts such amount as satisfaction in full of his claim, the Court on being so notified shall pass judgment accordingly, and in directing by whom the costs of each party are to be paid the Court shall consider which of the parties is most to blame for the litigation.

Illustrations (a) A owes B one thousand rupees. B sues A for the amount, having made no demand for payment, and having no reason to believe that the delay caused by making a demand would place him at a disadvantage. On the plaint being filed, A pays the money into Court. B accepts it in full satisfaction of his claim, but the Court should not allow him any costs, the litigation being presumably groundless on his part. (b) B sues A tinder the circumstances mentioned in illustration (a). On the plaint being filed, A disputes the claim. Afterwards A pays the money into Court. B accepts it in full satisfaction of his claim. The Court should also give B his costs of action, A's conduct having shown that the litigation was necessary. (c) A owes B one thousand rupees, and is willing to pay him that sum without action. B claims one thousand five hundred rupees, and sues A for that amount. On the plaint being filed, A pays one thousand rupees into Court, and disputes only his liability to pay the remaining five hundred rupees. B accepts the one thousand rupees in full satisfaction of his claim. The Court should order him to pay A s costs.

(6) The provisions of this section shall apply, mutatis mutandis, to the case of payment of money into Court made by any party to the action in satisfaction of the claim of any other party.

(7) The payment of money into Court shall be effected, mutatis mutandis, in the manner provided in Chapter II of this Law for the payment of fines and subject to such modifications, if any, as may be prescribed from time to time by rules of Court.

Security for costs. 582.
(1) Where at the institution, or at any subsequent stage, of an action, it appears to the Court that a sole plaintiff is, or (when there are more plaintiffs than one) that all the plaintiffs are, residing outside Sri Lanka, and that such plaintiff is not, or that no one of such plaintiffs is, possessed of substantial property, whether movable or immovable, within Sri Lanka, other than property the subject-matter of the action, the Court may in its discretion, and either of its own motion or on the application of any defendant, order the plaintiff or plaintiffs within a time to be fixed by the order, to give security for the payment of all costs incurred and likely to be incurred by any defendant.

(2) Where at the institution, or at any subsequent stage, of an action, it appears to the Court that the defendant, or (where there are more defendants than one that any defendant, is residing outside Sri Lanka, and that the plaintiff is not, or where there are more plaintiffs than one, that no one of such plaintiffs is, possessed of substantial property, whether movable or immovable, within Sri Lanka other than the property the subject-matter of the action, the Court may in its discretion, and either of its own motion or on the application of such defendant, order the plaintiff or plaintiffs, within a time to be fixed by the order, to give security for the payment of all costs incurred and likely to be incurred by such defendant.

(3) Whoever leaves, or is about to leave, Sri Lanka under such circumstances as to afford reasonable probability that he will not be forthcoming whenever he may be called upon to pay costs, shall be deemed to be residing outside Sri Lanka within the meaning of subsection (1).

(4) In the event of such security not being furnished within the time so fixed, the Court shall dismiss the action, unless the plaintiff or plaintiffs are permitted to withdraw therefrom or show good cause why such time should be extended.

(5) The day on which an order for security for costs is made, and the time thenceforward until and including the day on which such security is given shall, if the Court so directs, not be reckoned in the computation of time allowed by this Chapter to plead, answer interrogatories, or take any other proceeding in the action.

(6) Where an action is dismissed under this section the plaintiff may within thirty days, and after due notice in writing to the defendant, apply for an order to set the dismissal aside, and if it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from furnishing the security within the time allowed, the Court shall set aside the dismissal upon such terms as to security, costs, or otherwise as it thinks fit, and shall appoint a day for proceeding with the action.

Sequestration before judgment. 583.
(1) Where a plaintiff in any action has a sufficient cause of action against the defendant either in respect of a money claim of a sum exceeding one thousand five hundred rupees or because he has sustained damage to that amount and has no adequate security to meet the same, and if the plaintiff verily believes that the defendant with intent to avoid payment of the debt or damage
(a) is about to leave Sri Lanka,

(b). is fraudulently alienating his property, or

(c) has left Sri Lanka leaving property therein belonging to him,

the plaintiff may, either at the commencement of the action or at any subsequent stage before judgment, make an application to Court by way of motion supported by affidavit, for a mandate of sequestration of the defendant's property.

(2) Upon the presentation of such motion and affidavit, the Court may examine the plaintiff or other deponent in regard to the averments contained in the affidavit in order to satisfy itself that sufficient grounds exist for the issue of a mandate of sequestration.

(3) Where the Court is so satisfied, the Court may order mandate of sequestration in the prescribed form to issue to the Fiscal directing him to seize and sequester the lands, buildings, goods, money, securities in money and debts, wheresoever and in whose custody sever the same may be, to such value as the Court shall think reasonable and adequate, and to detain or secure the same to abide the further orders of the Court.

Explanation Sequestration of immovable property has the effect of sequestration of rents and profits which proceed therefrom, pending the sequestration.

(4) Before issuing the mandate of sequestration, the Court may require the plaintiff to enter into a bond with or without sureties in the discretion of the Court, to the effect that the plaintiff will pay all costs that may be awarded and all damages which may be sustained, by reason of such sequestration, by the defendant or any other person in whose possession such property has been so sequestered. It shall be competent to the Court to award such damages and costs of action either to the defendant or to any other person in whose possession such property shall have been so sequestered as to it shall seem fit and proper.

(5) Any person wilfully making any false statement in any affidavit sworn or affirmed to by him, or in oral testimony in the course of any proceedings under this section, may be punished as for contempt of Court, besides being liable to be tried and punished under the Penal Code for the offence of giving false evidence where such statement is on oath or affirmation.

(6) The sequestration ordered under this section shall be made in the manner provided for sequestration or seizure of property preliminary to sale thereof in execution of a decree for the payment of money.

(7) Where any claim is preferred to the property sequestered before judgment, such claim shall be investigated in the manner provided for the investigation of claim to property seized in execution of a decree for the payment of money.

(8) Where the Court is satisfied that the property sequestered was not the property of the defendant, it shall release such property from seizure,, and shall decree the plaintiff to pay such costs and damages by reason of such sequestration, as the Court shall deem meet.

(9) Sequestration before judgment shall not affect the rights, existing prior to the sequestration, of persons not parties to the action, nor bar any person holding a decree against the defendant from applying for the sale of the property under sequestration in execution of such decree.

(10) Where property is under sequestration by virtue of the provisions of this section, and a decree is entered in favour of the plaintiff, it shall not be necessary again to seize the property as preliminary to sale or delivery in execution of such decree.

(11) Where sequestration has been effected under the provisions of this section, and-
(a) it appears to the Court that such sequestration was applied for on insufficient grounds, or

(b) the action of the plaintiff is dismissed and it appears to the Court that there was no reasonable or probable ground for instituting the same,

the defendant may apply to the Court and the Court may upon such application award against the plaintiff such amount as it deems a reasonably compensation to the defendant for the expenses or injury caused to him, and any award so made shall bar any action for compensation in respect of such sequestration.

Power of Court to issue commissions. 584.
(1) Subject to the provisions hereinafter contained, the Court may issue a commission
(a) to examine any person for the purpose of recording his evidence or for enabling any document or thing to be produced,

(b) to make local investigations, or

(c) to examine accounts,

either of its own motion or on the application supported by affidavit or otherwise of any party to the action.

(2) Before issuing any commission, the Court may order such sum (if any) as it thinks reasonable for the expenses of the commission to be, within a time to be fixed, paid into Court by the party at whose instance or for whose benefit the commission is issued.

(3) Every Commissioner shall have authority to administer an oath or affirmation, and may, unless otherwise directed by the order of appointment-
(a) examine the parties themselves and any witness whom they or any of them may produce, and any other person whom the Commissioner thinks proper to call upon to give evidence in the matter referred to him;

(b) call for, examine and receive documents and other things relevant to the subject of inquiry; or

(c) at any reasonable time enter upon or into any land or building mentioned in the order.

(4) The provisions of this Chapter relating to the summoning, attendance, and examination of witnesses, and to the remuneration of, and penalties to be imposed upon, witnesses, shall apply to persons required to give evidence or to produce documents under this section.

(5) A Commissioner or a party to the action may apply to the Court from which the commission was issued for the issue of any process which he may find necessary to issue to or against a witness, and such Court may in its discretion issue such process as it considers reasonable and proper.

(6) Where a commission is issued under this section the Court shall direct that the parties to the action shall appear before the Commissioner in person or by their recognized agents or registered attorneys. Where all or any of the parties do not so appear, the Commissioner may proceed in their absence,

(7) Where the commission has been duly executed, it shall be returned, together with the evidence taken under it, to the Court from which it issued, unless the order for issuing the commission has otherwise directed, in which case the commission shall be returned in terms of such order; and the commission and the return thereto, and the evidence taken under it shall subject to the provisions of this section, form part of the record of the action.

(8) Evidence taken under a commission shall not be read as evidence in the action without the consent of the party against whom the same is offered, unless
(a) the person who gave the evidence is beyond the jurisdiction of the Court, or dead, or unable from sickness or infirmity to attend to be personally examined; or is a civil or military officer of the Government who cannot in the opinion of the Court attend without detriment to the state services; or

(b) the Court in its discretion, for good cause to be assigned by it, dispenses with the proof of any of the circumstances mentioned in paragraph (a) and authorizes the evidence of any person being read as evidence in the action, notwithstanding proof that the cause for taking such evidence by a commission has ceased at the time of reading of the same.

(9) The provisions as to the execution and return of commissions for the examination of witnesses shall apply to commissions issued by the Courts of any foreign country rectory recognized by the Government of Sri Lanka.

Commission to examine witness. 585.
(1) Any Court may in any action issue a commission to any person whom the Court thinks fit for examination on oath or affirmation, of any person resident within the local limits of its jurisdiction who from sickness or infirmity is unable to attend the Court.

(2) Any Court may in any action issue a commission to any other Court of comparable or lesser jurisdiction, or to any person whom the Court thinks fit, for the examination of-
(a) any person resident beyond the local limits of its jurisdiction:

(b) any person who is about to leave such limits before the date on which he is required to be examined in Court; and

(c) any civil or military officer of the Government who cannot in the opinion of the Court attend without detriment to the state services.

(3) Where any Court to which application is made for the issue of a commission for the examination of a person residing at any place not within Sri Lanka for the purpose of recording his evidence or for enabling the production of any document or thing is satisfied that such evidence or the production of such document or thing is necessary, the Court may issue a commission or a letter of request.

Commission for local investigations. 586.
(1) In any action or proceeding in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit, directing him to make such investigation and to report to the Court,

(2) The Commissioner, after such local inspection as he deems necessary, and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing, subscribed with his name, to the Court.

(3) The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the action and shall form part of the record; but the Court, or, with the permission of the Court, any of the parties to the suit, may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.

(4) Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it thinks fit or issue a fresh commission to another person. Commission examine accounts.

Injunctions. 587.
(1) In any action in which an examination or adjustment of accounts is necessary, the Court may issue a commission to such person as it thinks fit, directing him to make such examination.

(2) The Court shall furnish the Commissioner with such part of the proceedings and such instructions as appear necessary, and the instructions shall distinctly specify whether the Commissioner is merely to transmit the proceedings which he may hold on the inquiry, or also to report his own opinion on the point referred for his examination.

(3) The provisions of subsections (3) and (4) of the preceding section shall mutatis mutandis apply to a commission issued under this section.

Injunctions. 588.
(1) Every application in any action for an injunction for any of the purposes mentioned in Chapter I of this Law except in cases where an injunction is prayed for in the plaint in the action, shall be by petition, and whether prayed for in the plaint or in the petition, shall be accompanied by an affidavit of the applicant or some other person having knowledge of the facts, containing a statement of the facts on which the application is based.

(2) An injunction granted by the Court on any such application may in case of disobedience be enforced by the punishment of the offender as for a contempt of Court.

(3) Where notice of the application is directed to be served on the opposite party, such notice shall be accompanied by a copy of the plaint or petition together with a copy of the affidavit, and the Court may, at its discretion, grant an enjoining order until the Hearing and decision of the application: Provided that the Court shall, in cases where it enjoins the defendant as aforesaid, require the party-applying to enter into a bond with or without sureties at the discretion of the Court, to secure the payment, if any, of all compensation, damages and costs payable .to, sustained by or awarded to the opposite party by reason of such issue,

(4) An injunction directed to a, corporation or board or other public body or company shall bind not only the corporation, board, public body,’ or company itself, but also all members or officers of the corporation, board, public body, or company whose personal action it seeks to restrain.

(5) An order for an injunction made under this section may be discharged, or varied, or set aside by the Court, on application made thereto on petition by way of summary procedure by any party dissatisfied with such order.

(6) if it appears to the Court that the injunction was applied for on insufficient grounds, or if, after the issue of an injunction which it has granted, the action is dismissed or judgment is given against the applicant by default or otherwise; and it appears to the Court that there was no probable ground for applying for the injunction, the Court may, on the application of the party against whom the-injunction issued, award against the party obtaining the same in its decree such sum as it deems a reasonable compensation for the expense or injury caused to such party, by the issue of the injunction. Any award so made shall bar any action for compensation In respect of the issue of the injunction.

Interim orders. 589.
(1) Any Court may, on the application of any party to an action, order the sale by any person named in such order, and in such manner and on such terms as it thinks fit, of any movable property being the subject-matter of such action or sequestered before judgment in such action, which is subject to speedy and natural decay, or which for any other just and sufficient cause it may be desirable to have sold. The proceeds of such sale shall, after deducting therefrom such expenses as the Court allows, be deposited in Court to the credit of the action.

(2) The Court may, on the application of any party to an action, and on such terms as it thinks fit-
(a) make an order for the detention, preservation, or inspection and survey of any property which is the subject-matter of such action or as to which any question may arise therein;

(b) for all or any of the purposes aforesaid, authorize any person to enter upon or into any land or building in the possession of any other party to such action; and

(c) for all or any of the purposes aforesaid, authorize any samples to be taken or any observation to be made, or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence.

(3) The provisions as to execution of process shall apply mutatis mutandis to persons authorized to enter under this section.

(4) Every application under either subsection (1) or subsection (2) shall be made by petition by way of summary procedure; and every party who is sought to be affected by the order must be named a respondent in the petition. Any such application may be made by a plaintiff after service of summons, or by a defendant after he has appeared in the action.

(5) Where the subject-matter of an action is money or some other thing capable of delivery, and any party thereto admits that he holds such money or other thing as trustee for another party, or that it belongs or is due to another party, the Court may order the same to be deposited in Court or delivered to such last named party with or without security, subject to the further direction of the Court.

Receivers. 590.
(1) Where it appears to the Court to be necessary for the restoration, preservation, or better custody or management of any property, movable or immovable, the subject-matter of any proceedings, or under sequestration, the Court may on the application of any party who shall establish a prima facie right to or interest in such property, by order-
(a) appoint a receiver of such property, whether before or after decree, and if need be,

(b) remove any person from the possession or custody thereof;

(c) commit such property to the possession, custody or management of such receiver; and

(d) confer upon such receiver all such powers as to instituting and defending actions and for the realization, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents in writing, as the owner himself has, or such of those powers as the Court thinks fit.

(2) Nothing in this section shall be deemed to authorize the Court to remove from the possession or custody of property any person whom the party to the proceedings has not a present right so to remove.

(3) The Court may grant to such receiver such fee or commission as remuneration for his services as the Court thinks fit.

(4) Notice of an application (which shall be by way of summary procedure) for the appointment of a receiver shall be served on the opposite party, unless he has left Sri Lanka without leaving a recognized agent, or unless he has failed to appear in the proceeding and the time limited for his appearance has expired; or if he has left a recognized agent, such notice may be given to such agent.

(5) Every receiver so appointed shall-
(a) furnish such security (if any) as the Court thinks fit duly to account for what he shall receive in respect of the property;

(b) file his accounts at such periods and in such forms as the Court directs;

(c) pay the balance due from him therein as the Court directs; and

(d) be responsible for any loss occasioned to the property by his wilful default or gross negligence.

(6) The Court may at any time, on sufficient cause shown therefor, remove a receiver or require him to give fresh security.

(7) Where a receiver-
(a) fails to file his accounts at such periods and in such forms as the Court directs, or

(b) fails to pay the amount due from him as the Court directs, or occasions loss to the property by his wilful default or gross negligence,

the Court may issue writ to realize by seizure and sale of the property of such receiver, the amount found to be due from him, or any loss occasioned by him, and apply the proceeds thereof, to make good the amount due from him or loss occasioned by him.

Reference to arbitration by content of parties. 591.
(1) Where in any action all the parties interested agree that any matter in dispute between them shall be referred to arbitration, they may at any time before judgment is pronounced apply, in person or by their respective registered attorneys, specially authorized in writing in that behalf, to the Court for an order of reference, stating the particular matters sought to be referred.

(2) The arbitrator shall be appointed in such manner as may be agreed upon between the parties. Where the parties cannot agree with respect to such appointment, or if the person appointed refuses to accept the office of arbitrator, and the parties agree that the appointment shall be made by the Court, the Court shall appoint an arbitrator.

(3) Where the reference is to two or more arbitrators, provisions shall be made in the order for a difference of opinion among the arbitrators-
(a) by the appointment of an umpire; or

(b) by declaring that if the majority of the arbitrators agree, the decision of the majority shall prevail; or

(c) by empowering the arbitrators to appoint an umpire; or

(d) otherwise, as may be agreed between the parties; or if they cannot agree, as the Court may determine.

(4) The provisions of subsections (2) and (3) shall apply to the appointment of an umpire when necessary, or any fresh appointment where an arbitrator or an umpire dies, or refuses or neglects to act or becomes incapable of acting, or leaves Sri Lanka in circumstances showing that he will probably not return at an. early date, or has misconducted himself or the proceedings and his authority is revoked by-Court.

(5) The Court shall by order refer to the arbitrator the matter in dispute which he is required to determine, and shall fix such time as it thinks-reasonable for the delivery of the award, and shall specify such time in the order.

(6)The Court shall issue the same processes to the parties and witnesses whom the arbitrator or umpire desires to examine as the Court may issue in actions tried before it. Persons not attending in accordance with such process, or making any other default, or refusing to give their evidence, or guilty of any eon-contempt of an arbitrator or umpire during the investigation of the matters referred, shall be subject to the like disadvantages, penalties, and punishments, by order of the Court on the representation of such arbitrator or umpire, as they would incur for the like offences in actions tried before the Court.

(7) Without prejudice to the generality of powers vested in them, the arbitrator or arbitrators or umpire shall have power to-
(a) administer an oath to the parties and witnesses and examine them in relation to the matters in dispute;

(b) require or call for the production of all documents in their possession or power;

(c) make an interim award;

(d) make the award conditional or In the alternative;

(e) correct in an award any clerical mistake or error arising from any accidental slip or omission;

(f) administer to any party to the arbitration such interrogatories as may, in the opinion of the arbitrator or arbitrators or umpire, be necessary.

Explanation Any reference in this section to an award includes a reference to an interim award.

(8) The arbitrators or umpire may state a special case for the opinion of the Court on any question of law involved, or state the award, wholly or in part, in the form of a special case of such question for the opinion of the Court; and after the filing of such special case upon notice to the parties, the Court shall upon an appointed day hear argument and deliver its opinion thereon, which shall be taken and acted upon by the arbitrators as conclusive.

(9) The costs of the reference and award shall be in the discretion of the arbitrator or umpire, who may direct to and by whom such costs or any part thereof shall be paid.

(10) Where from the want of the necessary evidence or information or from any other cause the arbitrator or umpire cannot complete the award within the period specified in the order, the Court may, if it thinks fit,-
(a) whether the time for delivery of the award has expired or not, and whether the award has been delivered or not, extend from time to time, the time for delivering the award; or

(b) make an order superseding the arbitration, and in such case shall proceed with the action.

(11) When an award in an action has been made, the persons who made it shall sign it and cause it to be filed in Court, together with any depositions and documents which have been taken and proved before them; and notice of the filing shall be given to the parties by the Court.

(12) Within fifteen days from the date of receipt of notice of the filing of the award, any party to the arbitration may by petition apply to the Court to set aside the award, or to modify or to correct the award, or to remit the award to the arbitrator or arbitrators for reconsideration, on grounds mentioned in the next succeeding subsections.

(13) The Court may modify or correct an award-
(a) where it appears that a part of the award is upon a matter not referred to arbitration, and such part can be separated from the other part and does not affect the decision on the mutter referred; or

(b) where the award is imperfect in form or contains any obvious error which can be amended without affecting such decision; or

(c) where the award contains a clerical mistake or an error arising from an accidental slip or omission.

(14) The Court may from time to time remit the award on any matter referred to arbitration for the reconsideration of the same arbitrator or umpire, upon such terms and within such period as it thinks fit-
(a) where the award has left undetermined any of the matters referred to arbitration, or where it determines any matter not referred to arbitration, provided such matter can be separated without affecting the determination of the matters referred;

(b) where the award is so indefinite as to be incapable of execution;

(c) where an objection to the legality of the award is apparent upon the face of it.

An award remitted under this subsection becomes void on failure of the arbitrator or umpire to reconsider it, and the Court shall thereupon proceed with the action.

(15) No award shall be set aside except on one of the following grounds, namely-
(a) that an arbitrator or umpire has misconducted himself or the proceedings;

(b) that either party has been guilty of fraudulent concealment of any matter which he ought to have disclosed, or of wilfully misleading or deceiving the arbitrator or umpire;

(c) that the award has been delivered-
(i) after the issue of an order by the Court superseding the arbitration and restoring the action; or

(ii) after the expiration of the period allowed or extended by Court for delivery of the award; or

(d) that the award has been improperly procured or is otherwise invalid.

(16) Where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration in manner aforesaid, and no application has been made to set aside the award, or an application has been made to set aside the award and the .Court has refused such application, then the Court shall, after the time for making such application has expired, on a. day of which notice shall be given to the parties, proceed to pronounce judgment according to the award; or where the award has been submitted to it in the form of a special case, according to its own opinion on such case. Upon the judgment so pronounced a decree shall be entered, and shall be enforced in manner provided in this Chapter for the execution of decrees.

(17) No appeal shall lie from such judgment except in so far as the judgment is in excess of, or not in accordance with, the award.

Filling of arbitration agreement in Court. 592.
(1) Where 'any persons have entered into an arbitration agreement, before the institution of. any action with respect to the subject-matter of the agreement, or any part of it, and where a dispute has arisen to which the agreement applies, they or any of them may apply to a Court having jurisdiction in the matter to which the agreement relates that the agreement be filed in Court.

(2) The expression " arbitration agreement " means a written agreement to submit present and future disputes to arbitration, whether the arbitrator is named therein or not.

(3) The application shall be by petition by way of summary procedure.

(4) The parties to the agreement other than the petitioner or petitioners shall be made respondents to such petition.

(5) On such application being made, if no sufficient cause is shown to the contrary, the Court may cause the Agreement to be filed, and shall make an order of reference thereon to the arbitrator appointed by the parties, whether in the agreement or otherwise, or where the parties cannot agree upon an arbitrator, the arbitrator appointed by the Court.

Compulsory arbitration in respect of matters of account. 593.
(1) Where an action wholly or in part relates ' to matters of mere account-of an intricate and complicated character which cannot conveniently be tried in the ordinary way, it shall be lawful for the Court to order- that such matters either wholly or in part be referred to one or more arbitrators to be appointed by the parties, or if they cannot agree, or refuse to appoint them, by the Court itself upon such terms as to costs or otherwise as such Court thinks reasonable .

(2) The award of the arbitrators or of the umpire shall be treated as if it were a finding of the Court on the particular matter referred to arbitration.

(3) The arbitration under this section shall proceed in accordance with, and shall be governed by, the other provisions of this Chapter relating to arbitration so far as they can be made applicable.

Reference of arbitration without intervention of Court. 594.
(1) Where any matter has been referred to arbitration without the intervention of a Court, and an award has been made thereon, any person interested in title award may within six months of making the award apply to any Court having jurisdiction over the subject-matter of the award that the award be filed in' Court.

(2) The application shall be by petition by way of summary procedure to which the parties to the arbitration other than the petitioner or petitioners shall, be named respondents.

(3) Where the Court is satisfied that the matter has been referred to arbitration, and that an award has been made thereon, and where no ground such as is mentioned or referred to in subsection (14) or subsection (15) of section 591 is proved, the Court shall order the award to be filed, and such award shall take effect as an award made under, and be governed by, the provisions of this Chapter.

Power to stay legal proceedings where there is an arbitration agreement. 595. Where any party to an arbitration agreement or any person claiming under him commences any legal proceedings in any Court against any other party to the agreement or any person claiming under him in respect of any matter agreed to be referred, any party to such legal proceedings may, at any time after appearance and before filing or delivering answer or taking any other steps in the proceedings, apply to that Court to stay the proceedings; and that Court, if satisfied that there is no sufficient reason why the matter should not be referred to arbitration in accordance with the arbitration agreement and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order staying the proceedings.

SPECIAL ACTIONS BY OR AGAINST THE STATE

Actions By Or Against The State

Action by or against the State. 596.
(1) Actions by or against the State shall be instituted by or against the Attorney-General.

(2) In actions or proceedings instituted by or against the Attorney-General it shall be sufficient in any pleadings relating thereto, in lieu of stating or inserting the name and address of the plaintiff or defendant, as the case maybe, to state or insert the words " Attorney-General ".

(3) In this section, " Attorney-General " does not include the Solicitor-General or any State Counsel.

Attorney-General and State officer entitled to notice of action. 597.
(1) No action shall be instituted against the Attorney-General as representing the State, or against a Minister, Deputy Minister or State officer in respect of an act or omission in the exercise or purported exercise of his official duties, until the expiration of one month next after notice in writing has been delivered to, or left at the office of, the Attorney-General, Minister, Deputy Minister or such officer," as the case may be.

(2). Every such notice of action shall state the cause of action, the name and place of abode of the person intending to institute the action, and the relief he claims.

(3) The plaint in such action must contain a statement that such notice of action had been duly delivered or left.

(4) Where no such notice has been given prior to institution of action and objection is taken prior to or at the filing of answer that no such notice has been given, the Court shall stay further proceedings of the action for a period of one month and the plaintiff shall bear all costs occasioned as a result of such postponement. Where proceedings are stayed under this subsection, the date immediately following the period of one month after the date of institution of such action shall be deemed to be the date of institution of the action where such date is material for the purpose of determining whether the action is prescribed or not.

(5) Where after the giving of such notice as required by subsection (1), the plaint fails to aver the fact of such notice having been given, the Court shall permit an amendment of the plaint averring the giving of such notice and the plaintiff shall bear all costs occasioned by such amendment.

(6) No such action as is referred to in subsection (1) shall be dismissed only for the reason that no notice prior to institution of action had been given as required by the said subsection or that a statement that such notice of action has been duly delivered or left has not been averred in the plaint. (7) The provisions of the Conciliation Boards Act, No. 10 of 1958, shall not apply to any action referred to in subsection (1).

(8) In any action against a Minister, Deputy Minister or State officer in respect of such act as aforesaid the Court shall exempt the defendant from appearing in person if it is satisfied that such defendant cannot absent himself from his duty when attending to the transaction of any business of the National State Assembly or to the state services.

State officer may apply for time to answer. 598. Where an action is instituted against a State officer, and such State officer, on receiving the summons, considers it proper to make reference to the Government before answering the plaint, he may apply to the Court to grant such extension of the time fixed in the summons or allowed by the provisions of this Chapter as may be necessary to enable him to make reference and to receive orders thereon through the proper channels. Upon such application the Court may extend the time for so long as appears to it to be necessary.

When Attorney General may intervene. 599.
(1) Where the State undertakes the defence of an action against a Minister, Deputy Minister or State officer, the Attorney-General shall apply to the Court, and upon such application the Court shall substitute the name of the Attorney-General as the party defendant in the action, and in the event of such substitution any defence that would have been available to the original defendant shall also be available to the Attorney-General.

(2) Where no application under subsection (1) is made by the Attorney-General on or before the day fixed for appearance and answer, or within the; time limited for appearance and answer,, as the case) may be, the case shall proceed as in an action between private parties, except that the defendant shall not be liable to arrest, nor his property to seizure otherwise than in execution of a decree.

Writ not to issue against person or property of Attorney-General. 600. 'No writ against person or property shall be issued against the Attorney-General in. any action brought by or against the State in any case.

ACTIONS BY OR AGAINST CORPORATIONS AND COMPANIES

Actions by or against corporation or company. 601. In actions by or against any corporation, or by or against a board or- other public body, or any company authorized to sue or be sued, the name and the style of the corporation, board, public body,; or company or of the officer (if any) in whose name any such corporation, board, public body or company is authorized to sue and be sued, as the case may be, may be inserted as the name of the plaintiff or defendant; and the plaint or answer may be subscribed on behalf of the corporation, board, public body, or company by any member, director, secretary, manager, or other principal officer thereof who is able to depose to the facts of the case; and in any case in which such corporation, board, public body or company is represented by a registered attorney, shall be subscribed by such registered, attorney.

Actions by or against firms and persona carrying on business in names other than their own. 602.
(1) A firm duly registered under the Business Names Ordinance may sue or be sued in the business name under which it has been registered.

Explanation . " firm " shall have the same meaning as in the Business Names Ordinance.

(2) Where a firm sues or is sued in its business name, it shall, in the case of any pleading or other document required by or under this Chapter to be signed by the plaintiff or the defendant, suffice if such pleading or other document is signed by any one of the partners whose name appears on the register as such.

(3) Where an action is instituted by a firm, the plaintiffs or their registered attorney shall on demand in writing by or on behalf of any defendant forthwith declare in writing the names and places of residence of all the persons constituting the firm on whose behalf the action is instituted. Where the plaintiffs or their registered attorney fail to comply with this demand all proceedings, in the action may, upon application for that purpose, be stayed upon such terms as the Court may direct. Where the names of the partners are declared, the action shall proceed' in the same manner and the same consequences in all respect shall follow as if they had been named as plaintiffs in the plaint:

Provided that all the proceedings shall nevertheless continue in the name of the firm.

(4) Where a firm sues or is sued in its business name and any partner thereof dies, whether before the institution or during the pendency of the action, it shall not be necessary to join the legal representative of the deceased as a party to the suit;

Provided, however, that where it is intended to execute the decree against assets other than those in the partnership business of the deceased partner, such legal representative shall be added as a party to the action.

(5) Nothing in subsection (4) shall limit or otherwise affect any right which the legal representative of the deceased may have-
(a) to apply to be made a party to the suit;

(b) to enforce any claim against the survivor or survivors.

(6) Where a firm is sued in its business name, the partners shall appear individually in their own names but all subsequent proceedings shall nevertheless continue in the name of the firm.

(7) The provisions of this section shall apply to actions between a firm and one or more of the partners thereof, and to actions between firms having one or more partners in common; but no execution shall be issued in such actions except by leave of the Court, and, on an application for leave to issue such execution, all such accounts and inquiries may be directed to be taken and made and directions given as may be just.

(8) Nothing in this section shall prevent partners from suing or being sued otherwise than in the firm name.

(9) An individual duly registered under the Business Names Ordinance may be sued in the business name under which he has been registered as if it were a firm name; and so far as the nature of the case will permit, the provisions of this section shall apply.

Explanation " individual " shall have the same meaning as in the Business Names Ordinance.

Action by or against trustees, executors and administrators, 603.
(1) Trustees, executors and administrators may sue and be sued without joining any person beneficially interested in the trust property or estate, and shall be considered as representing such person, but the Court may, at any stage of the action, order any such person to be made a party, either in addition to or in lieu of the previously existing parties.

(2) Where there are several trustees, executors or administrators they shall all be made parties to an action by or against one or more of them: Provided that the executors who have not proved their testator's will and trustees, executors and administrators not resident in Sri Lanka need not be made parties.

(3) In every action brought by an executor or administrator in right of his testator or intestate, such executor or administrator shall, unless the Court shall otherwise order, be liable to pay costs to the defendant in case of judgment being entered for the defendant, and in all other cases in which he would be liable if such executor or administrator were suing in his own right upon a cause of action accruing to himself personally.

(4) Unless the Court directs otherwise, the husband of a married trustee, executrix, or administratrix shall not be a party to an action by or against her in her representative capacity.

ACTIONS BY OR AGAINST MINORS AND PERSONS UNDER OTHER DISABILITIES

Action by or against minors and persons under other disabilities. 604.
(1) Every action by a minor shall be instituted in his name by a person of full age who in such action shall be designated in the plaint as the next friend of the minor and who may be ordered personally to pay the costs in the action as if he were a plaintiff.

Explanation (i) A curator instituting an action in the name of the minor should have himself appointed next friend of the minor. (ii) A person duly appointed next friend may sue without obtaining a certificate of curatorship. (iii) A curator suing upon a contract entered into in his own name in respect of the estate of the minor need not have himself appointed next friend as the action may be maintained in his own name.

(2) Where the defendant to an action is a minor, the Court on being satisfied of the fact of minority shall appoint a guardian ad litem over such minor to act on his behalf in the conduct of the case.

(3) Every application to the Court on behalf of a minor shall be made in his name by his next friend or guardian ad litem, and shall be so 'expressed to be made on the face of the application.

(4) Where an action is instituted by or on behalf of a minor without a next friend, the defendant may apply to have the plaint taken off the file, with costs to be paid by the, person by whom it was presented. Such application shall be made by way of summary procedure, and the Court after hearing the objections. if any, of the person against whom it is made,' may make such order in the matter as it thinks fit.

(5) The provisions of this section and. of sections 605 to 617 shall mutatis mutandis apply to mentally defective persons and to persons of unsound mind adjudged to be so under this Chapter or any law for the time being in force.

No order to affect minor not represented. 605. Every order made in an action or on any application before the Court in or by which a minor is in any way concerned or affected other than an application under subsection (5) of the next succeeding section, without such minor being represented by a next friend or guardian ad litem, as the case may be, may be discharged on application made by way of summary procedure for the purpose; and if the registered attorney of the party . at whose instance such order was obtained knew or might reasonably have known, the fact of such minority, it may on such application be discharged with costs to be paid by such registered attorney, provided he was duly made a respondent to the application.

Who may act as next friend. 606.
(1) Any person being of sound mind and full age may be appointed next friend of a minor, provided his interest is not adverse to that of such minor and he is not a defendant in the action. Such (appointment shall be made after application by way of summary procedure supported by affidavit showing the fitness of the person proposed and also that he has no interest adverse to the minor. When such application is being made' the minor shall appear personally in Court unless prevented by good cause, such as extreme youth, illness or absence from Sri Lanka.

(2) If the interest of the next friend of a minor is adverse to that of such minor, or if he is so connected with a defendant whose interest is adverse to that of the minor as to make it unlikely that the minor's interest will be properly protected by him, or if he does not do his duty, or, pending the action, ceases to reside within Sri Lanka, or for any other sufficient cause, application may be made by way of summary procedure on behalf of the minor or by a defendant for his removal; and the Court (if satisfied of the sufficiency of the cause assigned) may order the next friend to be removed accordingly.

(3) Unless otherwise ordered by the Court, a next friend shall not retire at his own request without first procuring a fit person to be put in his place, and giving security for the costs already incurred.

(4) The application for the appointment of a new next friend shall be by way of summary procedure supported by affidavit, showing the fitness of the person proposed and also that he has no interest adverse to that of the minor, and to such application the defendant shall be made respondent.

(5) On the death or removal of the next friend of a minor, further proceedings shall be stayed until the appointment of a new next friend in his place. If the registered attorney of such minor omits, within reasonable time, to take steps to get a new next friend appointed, any person interested in the minor or the matter at issue may, by way of summary procedure, apply to the Court for the appointment of one, making the defendant a respondent to the application; and the Court may thereupon appoint such person as it thinks fit.

Minor's right of election on attaining majority. 607.
(1) A minor plaintiff, or a minor not a party to an action on whose behalf an application is pending, shall on attaining majority elect whether he will proceed with the action or application.

(2) Where he elects to proceed with the action or application, he shall apply for an order discharging the next friend, and for leave to proceed in his own name.

(3) Where he elects to abandon the action or application he shall, if a sole plaintiff, or sole applicant, apply for an order to dismiss the action or application, on repayment of the costs incurred by the defendant, or opposite party, or which may have been paid by his next friend.

(4) An application under this section may be made ex parte, but the affidavit of facts upon which it is based must satisfy the Court that the late minor has attained majority.

Repudiation of action by minor co-plaintiff on attaining majority. 608.
(1) Where a minor co-plaintiff on attaining majority desires to repudiate the action, he shall apply to have his name struck out as co-plaintiff and the Court, if it finds that he is not a necessary party, shall dismiss him from the action on such terms as to costs or otherwise as it thinks fit.

(2) The next friend, the co-plaintiff and the defendant shall be served with notice of the application as respondents; the costs of all parties of such application and of all or any proceedings theretofore had in the action shall be paid, by such persons as the Court directs.

(3) If the late minor is a necessary party to the action, the Court may direct him to be made a defendant.

Unreasonable or improper suit. 609.
(1) If any minor on attaining majority can prove to the satisfaction of the Court that an action instituted in his name by a next friend was unreasonable or improper, he may, if a sole plaintiff, apply by way of summary procedure to have the action dismissed.

(2) Notice of the application shall be served on all the parties concerned, including the next friend, and the Court, upon being satisfied of such unreasonableness or impropriety, may grant the application, and order the next friend to pay the costs of all parties in respect of the application and of anything done in the action or make such other order as it thinks fit.

Minor may in person sue for salary or wages. 610. Nothing in the foregoing sections shall affect the right of any minor to prosecute any proceedings in a Court for any money which may be due to him for salary, wages or piecework, or for work as a servant, artificer, or labourer, in the same manner as if the were of full age.

Application for appointment of guardian ad litem. 611.
(1) An order for the appointment of a guardian ad litem may be obtained upon application by way of summary procedure in the name and on behalf of the minor or by the plaintiff. Such application shall be supported by an affidavit verifying the fact that the proposed guardian is of sound mind and full age and has no interest in the matters in question in the action adverse to that of the minor, and that he is a fit and proper person to be so appointed.

(2) No person shall without his consent be appointed guardian ad litem.

(3) On the occasion of such an application being made, the minor shall appear personally unless prevented by good cause, such as extreme youth, illness or absence from Sri Lanka.

(4) Where there is no other person fit and willing to act as guardian ad litem the Court may appoint the Public Trustee to be such guardian, and may direct that the costs incurred in the performance of his duties as such guardian shall be borne either by the parties or by any one or more of the parties to the action or out of any fund in Court in which the minor is interested and may give directions for the repayment or allowance of such costs as justice and the circumstances of the case may require. A co-defendant of sound mind and of full age may be appointed guardian ad litem if he has no interest adverse to that of the minor; but no plaintiff shall be so appointed.

(5) Where the guardian ad litem desires to retire or does not do his duty, or if other sufficient ground is made to appear, the Court may permit such guardian to retire or may remove him, and may order him to pay such costs as may have been occasioned to any party by his breach of duty, or may make such other order as to costs as it thinks fit. Where the guardian ad litem retires, dies or is removed by the Court during the pendency of the action, the Court shall appoint a new guardian ad litem in his place, and further proceedings shall be stayed until such appointment.

(6) When the enforcement of a decree or order is applied for against the heir or representative, being a minor, of a deceased party, a guardian ad litem over such minor shall be appointed by the Court, on an application by way of summary procedure duly made for this purpose, and the decree-holder shall then serve on such guardian ad litem notice of such application.

(7) No next friend or guardian ad litem shall, without the approval of the Court expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the action in which he acts as next friend or guardian ad litem.

(8) A next friend or guardian ad litem shall not, without the leave of the Court, unless appointed curator over the property of the minor, receive any money or other movable property on behalf of a minor either-
(a) by way of compromise before decree or order, or

(b) under a decree or order in favour of the minor.

Where the next friend or guardian ad litem has not been appointed to be a curator over the property of the minor, or, having been so appointed is under any disability known to the Court to receive the money or other movable property, the Court shall, if it grants him leave to receive the property, require such security and give such directions as will, in its opinion, sufficiently protect the property from waste and ensure its proper application.

Age of majority 612. For the purposes of this Chapter, a minor shall he deemed to have attained majority or full age on his attaining the age of twenty-one years, or on marriage, or on obtaining letters of venia aetatis.

Custody and control of minors and their estates 613.
(1) Every person who claims a right to have charge, control or management of property of a minor, under a will or deed or by reason of nearness of kin or otherwise, may apply to the Public Trustee for a certificate of curatorship.

(2) Any relative or friend of a minor, in respect of whose property such certificate has not been granted, may apply to the Public Trustee to appoint a fit person to take charge, control and management of the property and person or of either property or person of such minor.

(3) An application under this section shall be made on the prescribed form, and shall name any person interested in the minor or in the subject of the petition who is likely to entertain any objection thereto.

(4) The minor shall attend the inquiry into the application unless excused from so doing by the Public Trustee by reason of tenderness of years, absence from Sri Lanka or any other sufficient cause.

Appointment of curator and guardian. 614.
(1) Where a person claims a certificate of curatorship by virtue of a will or deed, or by virtue of a natural right, the Public Trustee shall grant such certificate to such person.

(2) Where there is no person so entitled, or where the person so entitled is unwilling to undertake the office of a curator, the Public Trustee may grant a certificate of curatorship to any near relative of the minor who is willing and fit to be entrusted with the responsibility.

(3) Where a certificate of curatorship has been issued under subsection (1) or subsection (2), the Public Trustee may also, where the minor is not under the custody and control of a natural guardian, or where the father of such minor has not appointed a guardian over him, if he thinks fit, appoint the person to whom the certificate of curatorship has been issued, or any other relative or friend of the minor, to be guardian of the person of the Minor.

(4) Where the claim to a certificate of curatorship is not established by a person claiming such certificate under a will or deed, and if there is no near relative willing and fit to be entrusted with the responsibility, the Public Trustee may grant a certificate of curator-ship ship to any fit person whom the Public Trustee may appoint for the purpose, and shall at the same time appoint a guardian to take charge of the person and maintenance of the minor and issue to such guardian a certificate of guardianship. The person appointed curator may also be appointed guardian, provided he would not be the legal heir of the minor, if the minor then died. If the curator or guardian so appointed is unwilling to discharge the duties of the office gratuitously, the Public Trustee may assign him such allowance to be paid out of the estate of the minor, as under the circumstances of the case the Public Trustee may think suitable.

(5) The Public Trustee may fix such allowance as he may think proper for the maintenance and education of the minor. Such allowance and the allowance of the guardian, if any, shall be paid to the guardian by the curator of the estate of the minor. The Public Trustee may direct that such allowance be raised out of the corpus of the estate, by lease, mortgage or sale or such other mode of realization as he thinks fit.

(6) The person appointed curator shall, where the Public Trustee so requires, enter into a bond, with or without sureties, for the due custody, control and management of the estate of the minor. Where, however, the certificate of curatorship has been issued to a person claiming the right under a will or deed, or by reason of a natural right, no security shall be required unless for some special reason the Public Trustee deems that security is essential for the protection of the estate.

(7) Every curator shall, within a time to be fixed by the Public Trustee, submit an inventory of the property belonging to the minor. Such curator shall also once every six months, submit an account of the property in his charge, showing the amounts received and disbursed on account of the estate and the balance in hand. He shall, at the time of Submitting his accounts, deposit with the Public Trustee all such balance as may not be necessary for current expenses. To every account shall be appended an affidavit of the accounting party as is required by Chapter III of this Law of an accounting party in respect of the estate of a deceased person.

(8) Any relative of the minor or the minor himself by a next friend or the Attorney-General may impeach and falsify the correctness of the inventory and periodic accounts, or complain of delay in the filing of them, or seek an account from the curator or from his personal representative in case of his death, and the Public Trustee may on any such application make such order as he thinks proper.

(9) Every guardian appointed by the Public Trustee shall be bound to provide for the education of the minor in a suitable manner:

Provided that the general superintendence and control of the education of all such minors shall be vested in the District Court.

Powers of curator. 615.
(1) A curator shall not be entitled to institute or defend an action for or in the name of the minor. He may, however, institute or defend an action in his own name, where he is empowered by law to institute or detend an action qua curator.

(2) A curator may exercise the same powers in the management of the estate as might have been exercised by the proprietor if not a minor, and may collect and pay ail just claims, duties or liabilities due to or by the estate of the minor. No such curator, however, shall have power to sell or mortgage the estate or any part thereof, or grant a lease of any immovable properly for any period exceeding three years, without the consent in writing of the Public Trustee previously obtained.

(3) Where any securities, inclusive of stocks, bonds and shares, of a company form part of the estate of a minor, the curator may with the consent in writing of the Public Trustee concur in any scheme or arrangement-
(a) for the reconstruction of the company;

(b) for the sale of all or any part of the property and undertaking of the company to another company;

(c) for the amalgamation of the company with another company;

(d) for the release, modification, or variation of any rights, privileges, or liabilities attached to the securities or any of them,

in like manner as if he were entitled to such security beneficially with power to accept any securities of any denomination or description of the reconstructed, or purchasing or new company in lieu of or in exchange for all or any of the first-mentioned securities; and the curator shall not be responsible for any loss occasioned by any act or thing so done in good faith and may retain any securities so accepted as aforesaid for any period for which he could have properly retained the original securities.

(4) If any conditional or preferential right to subscribe for any securities in any company is offered to the curator in respect of any holding in such company, he may, with the consent in writing of the Public Trustee, as to all or any of such securities, either exercise such right and apply capital money belonging to the estate in payment of the consideration, or renounce that right or assign for the best consideration, that can be reasonably obtained the benefit of such right or the title thereto to any person, including any minor jointly entitled to the said estate without being responsible for any loss occasioned by any act or thing so done by him in good faith.

Settlement of curator's accounts. 616.
(1) The minor after he has attained majority, or the executor or administrator of a deceased minor, or the guardian of the person of a minor, or a relative of the minor, or the successor of the curator,, may apply to the Public Trustee for the final settlement of the accounts of the curator.

(2) The Public Trustee may, of his own motion, require the curator to render his final accounts.

(3) A curator may request the Public Trustee to make a final settlement of his accounts, and for a discharge from his duties and liabilities.

Next friend or guardian. ad litem may be ordered to file accounts. 617.
(1) Where the Court is satisfied that the next friend or guardian ad litem of a minor has received moner or property of the minor for which he is liable to account and has not so accounted, it may direct such next friend or guardian ad litem, as the case may be, to file accounts of the receipts and disbursements made by him, verified by affidavit.

(2) Such accounts when filed shall be transmitted by Court to the Public Trustee, and the provisions of the preceding section shall, mutatis mutandis, apply to the final settlement of such accounts.

(3) Such next friend or guardian ad litem may request the Public Trustee to make a final settlement of his accounts, and for a discharge from his duties and liabilities.

Estates of persons of unsound mind. 618.
(1) The expression " person of unsound mind " as used in this Chapter shall, unless the contrary appears from the context, mean every person found by due course of law to be so deranged in mind as to be incapable of managing his affairs.

(2) Whenever any person who is possessed of property is alleged to be a person of unsound mind the District Court within whose jurisdiction such person is residing may, upon application, institute an inquiry for the purpose of ascertaining whether such person is or is not so deranged in mind as to be incapable of managing his affairs.

(3) Application for such inquiry may be made by petition by way of summary procedure by any relative of the person alleged to be of unsound mind/or by the Superintendent of Police, or at the instance of the Attorney-General, or, if the property of the person alleged to be of unsound mind consists in whole or in part of land, or of any interest in land, by the Government Agent or Assistant Government Agent of the District in which it is situated.

(4) Where the Court is satisfied by affidavit or other sufficient evidence that such inquiry as aforesaid ought to be instituted, it shall pass an interlocutory order to that effect, appoint a time and place for holding the inquiry and cause copies of the petition and of the order to be served personally through the Fiscal or other officer authorized by Court upon the person alleged to be of unsound mind and on any relative of such person and on any other person, though not named respondent, whom it may consider entitled to have notice of the application. If it appears that the person alleged to be of unsound mind is in such a state that personal service on him would be ineffectual, the Court may direct such substituted service of the petition and order as it thinks proper.

(5) The Court may, at any time before or pending the inquiry, require the person alleged to be of unsound mind to attend, and direct any person alleged to have the custody of such person to produce him, at such convenient time and place as it may appoint, for the purpose of a personal examination by the Court or by any person from whom the Court may desire to have a report on or testimony as to the mental capacity and condition of such person. The Court may likewise make an order authorizing any person or persons therein named to have access to the person alleged to be of unsound mind or to keep such person in his or their custody for such period as the Court shall satisfy for the purpose of a personal examination of such person:

Provided that the Court shall not permit the person alleged to be of unsound mind to be kept in such custody unless it is satisfied on evidence that such custody is essential to have such report or testimony:

Provided further that the Court may in any case where the person alleged to be of unsound mind is kept in custody make such order as it deems expedient for the protection of the interest of such person during the period so specified.

(6) The issue to be tried on such inquiry shall be whether the person alleged to be of unsound mind is or is not so deranged in mind as to be incapable of managing his affairs. The trial of this issue shall be effected by viva voce examination and cross-examination of witnesses, as nearly as may be as is herein before directed for the trial of an issue in an action of summary procedure in a case where the respondent appears and shows cause.

(7) The trial whether held in Court or in a private house, shall be public.

(8) The person alleged to be of unsound mind shall be present at the trial and shall take part as a party defendant therein either by an attorney-at-law or in person, unless his state of health, or his behaviour, is such as- to render either his being present or his participating in the proceedings unfitting or unseemly. Any relative of the person alleged to be of unsound mind may also, if the Court thinks fit, appear and take part in the trial on behalf of such person.

(9) Upon the conclusion of the trial, the Court shall adjudicate whether the person alleged to be of unsound mind is or is not so deranged in mind as to be incapable of managing his affairs.

(10) If any person who has been adjudged to be a person of unsound mind, or any other person acting on his behalf, or having or claiming any interest in respect of his estate, represents by petition to the District Court, or if the Court is informed in any other manner, that the derangement of mind of such person has ceased, the Court may institute an inquiry for the purpose of ascertaining whether such person is or is not still so deranged in mind as to be incapable of managing his affairs. The inquiry shall be conducted in the manner provided in the preceding subsections, and if it is adjudged that such person has ceased to be so deranged in mind as to be incapable of managing his affairs, the Court shall make an order for his estate to be delivered over to him, and such order shall be final.

Appointment of manager and guardian. 619.
(1) Where a person has been adjudged to be a person of unsound mind, the Court shall appoint any near relative or any other suitable person as manager of the estate of the person of unsound mind, and a certificate shall be issued to such manager. The Court shall also appoint a fit person to be guardian of the person of such person of unsound mind and a certificate of guardianship shall be issued to him. The manager may be appointed guardian:

Provided that if it appears to the Court, having regard to the situation and condition of life of the person of unsound mind and his family, and the amount and description of his property, that it is unnecessary to appoint a manager of the estate, the Court may, instead of appointing such manager, order that the property, if money or if of any other description, the proceeds thereof, when realized in such manner as the Court shall direct, be paid to such person as the Court may think fit, to be applied for the maintenance of the person of unsound mind and his family.

(2) The provisions of this Chapter relating to the custody and control of minors and their estates, and to the appointment of curators and guardians shall, mutatis mutandis, apply to the estates of persons of unbound mind and to managers and guardians appointed under this section.

(3) The District Court may on any application made to it by a relative of the person of unsound mind or the Attorney-General, punish as for contempt of Court any manager of the estate of a person of unsound mind who wilfully neglects or refuses to deliver his accounts or any property in his hands within the prescribed time or a time fixed by the Court.

(4) No stamp duty shall attach or be payable for any application, process, or other document filed in Court under the provisions of this or the preceding section.

Estates of mentally defective persons. 620. The provisions of this Chapter relating to persons of unsound mind shall apply in regard to the adjudication of a person alleged to be a mentally defective person and to the person and property of a person so adjudged.

Explanation " meat ally defective person " means a person found by due course of law to be so feeble minded as to be incapable of managing his affairs.

Right of appeal. 621.
(1) An appeal shall lie to the Supreme Court against any order made by a District Court under any of the three preceding sections and may be prosecuted by, or at the instance of, the person suspected or adjudged to be deranged in mind, or of any relative or friend of his, or of any medical practitioner who has certified or testified to his state of mind or any party aggrieved by such order.

(2) The Supreme Court shall take cognizance of such appeal, and deal with the same as an appeal from an interlocutory order.

INTERPLEADER ACTIONS

Interpleader actions. 622.
(1) Where two or more persons claim adversely to one another, payment of the same debt, sum of money, or delivery of the same property, from another person, who claims no interest therein other than for charges or costs and who is ready to pay or deliver it to the rightful claimant, such other person may institute an action of interpleader against all the claimants for the purpose of obtaining a decision as to the person to whom the payment or delivery shall be made, and of obtaining indemnity for himself:

Provided that where any action is pending in which the rights of all parties can properly be decided, no such action of interpleader shall be instituted.

(2) In every action of interpleader the plaint shall, in addition to the other statements necessary for plaints, state-
(a) that the plaintiff claims no interest in the subject-matter in dispute other than for charges or costs;

(b) the claims made by the defendants severally; and

(c) that there is no collusion between the plaintiff and any of the defendants.

Such plaint shall also be supported by an affidavit of the plaintiff veryfying the statements contained therein.

(3) Where the thing claimed is capable of being paid into Court or placed in the custody of the Court, the plaintiff shall so pay or place it before he can be entitled to any order in the action.

(4) Where any of the defendants in an interpleader action is actually suing the plaintiff in respect of the subject-matter of such action, the Court in which the action against the plaintiff is pending shall, on motion made by the plaintiff with notice to such defendant, stay the proceedings as against him; and his costs in the action so stayed may be provided for in such action; but if, and in so far as, they are not provided for in that action, they may be added to his costs incurred in the interpleader action.

(5) At the hearing the Court may-
(a) declare that the plaintiff is discharged from all liability to the defendants in respect of the thing claimed, award him his charges or costs, if any, and dismiss him from the action; or

(b) if it thinks that justice or convenience so requires, retain all parties until the final disposal of the action.

Where the Court finds that the admissions of the parties or other evidence enable it to do so, it may adjudicate upon the title to the thing claimed. Where the admissions of the parties do not enable the Court so to adjudicate, it may direct-
(a) that issues between the parties be framed and tried, and

(b) that any claimant be made a plaintiff in substitution for or in addition to the original plaintiff,

and shall proceed to try the action in the ordinary manner.

(6) Nothing in this section shall be deemed to enable agents to sue their principals, or tenants to sue their landlords, for the purpose of compelling them to inter-plead with any persons other than persons making claim through such principals or landlords.

(7) Where the action is properly instituted the Court may provide for the charges and costs of the original plaintiff by giving him a charge on the thing claimed or in some other effectual way.

PROCEEDINGS ON AGREEMENT OF PARTIES

Proceedings on agreement of parties. 623.
(1) Parties claiming to be interested In the decision of any question of fact or law may enter into an agreement in writing, stating such question in the form of a case for the opinion of the Court, and providing that upon the finding of the Court with respect to such question -
(a) a sum of money fixed by, the parties, or to be determined by the Court, shall be paid by one of the parties to the other; or;

(b) some property, movable or immovable, specified in the agreement, shall be delivered by one of the parties to the other; or

(c) one or more of the parties shall do, or refrain from doing, some other particular act specified in the agreement.

(2) Every case stated under this section shall be divided into consecutively numbered paragraphs, and shall concisely state such facts and specify such documents as may be necessary to enable the Court to 'decide the question raised thereby.

(3) Where the agreement is for the delivery of any property, or for, the doing, or the refraining from doing, of any particular act, the estimated value of the property to be delivered, or to which the act specified has reference, shall be stated in the agreement.

(4) The agreement may be filed in the Court which would have jurisdiction to entertain an action, the amount or value of the subject-matter of which is the same as the amount or value of the subject-matter of the ;agreement, and for this purpose the agreement shall be presented to the Court as an exhibit to a petition preferred by one or more of the parties to the agreement by way of summary procedure, to which petition the other parties to the agreement shall be named respondents.

(5) The petition shall expressly state, if such be the case, in addition to any other relevant facts, that the agreement was duly executed by all the parties,. and that the controversy is real, and that the agreement is submitted bona fide for the purpose of determining the rights of the parties. Such petition shall be verified by affidavit and the prayer of the petition shall conform to the stipulations of the agreement.

(6) If at the hearing of the petition, on a consideration of the evidence before it the Court is satisfied that the allegations of the petition are established, and is further of opinion that the subject of the agreement is fit to be decided, then it shall proceed to pronounce judgment between the parties upon the facts -and questions stated in the agreement, and upon the judgment so given a decree shall be entered, and shall be enforced in the manner provided in this Chapter for the execution of decrees.

ACTIONS RELATING TO NEGOTIABLE INSTRUMENTS

Summary procedure on negotiable instruments. 624.
(1) All actions upon bills of exchange, promissory notes or cheques may be instituted by presenting a plaint in the regular form, but the summons shall be in such form as shall be prescribed for the purposes of this section, and shall be returnable in fifteen days.

(2) The defendant shall not be entitled to defend the action, unless he enters appearance within the time fixed in the summons and obtains leave from the Court as hereinafter provided so to defend.

(3) In default of the defendant entering appearance and obtaining leave as aforesaid, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to judgment for any sum not exceeding the sum mentioned in the summons, together with interest at the rate specified, if any, in the instrument, to the date of judgment and further interest on the aggregate sum at the rate allowed by law up to the date of payment, and for such sum by way of costs as the Court may allow at the time of entering judgment.

(4) The holder of every dishonoured bill of exchange or promissory note shall be entitled to include in his claim the expenses incurred in noting such bill of exchange or promissary note for non-acceptance, or non-payment, or otherwise by reason of such dishonour.

(5) The Court shall, upon application by the defendant and after hearing the plaintiff, give leave to defend the action upon the defendant paying into Court the sum mentioned in the summons, or upon affidavits which disclose-
(a) a prima facie defence (including a defence of counterclaim or set-off) in regard to the good faith of which there are no reasonable doubts, or

(b) such facts as would make it incumbent on the holder to prove consideration, or

(c) such other facts as the Court may deem sufficient to support the application, or

(d) such other grounds as would establish that the action should not have been instituted under the provisions of this section.

(6) Leave to defend may be given conditionally or subject to such terms as to payment into Court of, or giving security in, such sum as the Court may fix, or as to framing and recording issues, or otherwise as the Court thinks fit.

(7) Where no leave is obtained by or granted to the defendant, or where leave is granted subject to conditions and terms and such conditions and terms are not complied with by the defendant, judgment may be entered in favour of the plaintiff forthwith on such failure, refusal or non-compliance, as the case may be. However, it shall be competent to the Court before entering judgment to consider any application by the defendant to pay the plaintiff's claim in instalments and, if satisfied that the application should be granted, to direct by its judgment the payment of the claim in instalments, subject to such terms and conditions as to giving security or otherwise as to it shall seem meet.

(8) Where leave is granted unconditionally or is granted subject to conditions or terms, the date on which such conditional leave is granted or the date on which the conditions or terms are complied with in accordance with the order of Court shall be deemed to be the date of appearance of the defendant but no notice of appearance need be given to the plaintiff or his registered attorney.

(9) Save as provided by this section the procedure in actions under this section shall be regular and shall be governed by the provisions of this Chapter.

(10) After decree the Court may, under special circumstances, set aside the decree, and if necessary stay or set aside execution, and may give leave to the defendant to appear and defend the action, if it seems reasonable to the Court so to do, and on such terms as the Court thinks fit.

MATRIMONIAL ACTIONS

Requisites of plaints in matrimonial actions. 625.
(1) The plaint in a matrimonial action shall contain in addition to the other particulars required to be stated in a plaint, the following additional particulars: -
(a) the place and date of the marriage and the name of the wife before marriage;

(b) whether there are any living children of the marriage and, if so, the names and dates of birth or ages of such children;

(c) the occupation of the husband;

(d) the matrimonial offences alleged or other grounds upon which relief is sought, setting out with sufficient particularity the individual facts relied on.

(2) Where the matrimonial offence alleged is adultery with a person who is named, such person shall be made a co-defendant to the action.

(3) The provisions of the Conciliation Boards Act, No. 10 of 1958, shall not apply to matrimonial actions.

Decree for divorce or nullity. 626.
(1) A marriage may be dissolved or declared null and void if the Court is satisfied that any of the grounds for dissolution or nullity set out in the Marriage Registration Ordinance has been proved to exist.

(2) Every decree for dissolution of marriage or for declaration of nullity of marriage shall, in the first instance, be a decree nisi which shall not be made absolute till after the expiration of not less than three months or such longer period as may be prescribed in such decree.

(3) Whenever a decree nisi has been made and do sufficient cause has been shown why the same should not be made absolute, such decree nisi shall on and after the expiration of the prescribed time be made absolute.

(4) Where the defendant opposes the relief sought by the plaintiff and claims either the same or any other relief, on any ground which would have enabled him to sue as plaintiff for the relief so claimed by him, the Court may in such action-give to the defendant the same relief to which he would have been entitled had he presented a plaint seeking such relief.

Action for judicial operation. 627.
(1) A husband or wife may institute an action praying for a judicial separation on any ground on which a divorce may be sought, and the Court, upon being satisfied that such ground exists, may enter judgment accordingly. The Court may, however, at any time thereafter, upon the application of both spouses, discharge the decree of separation.

(2) Either spouse may, after the expiry of a period of two years from the entering of decree of separation, apply to the Court by way of summary procedure to have such decree of separation converted into one of dissolution of marriage, and the Court may, upon being satisfied that the spouses have not resumed cohabitation, enter judgment accordingly. The provisions of subsection (2) and subsection (3) of the preceding section shall apply to such judgment.

(3) Where a separation has been decreed, each spouse shall, from the date of the decree and so long as such decree continues in force, be deemed to be unmarried for the purposes of-
(a) the acquisition of property and the disposal of property so acquired; and

(b) contracts or other actions entered into or done, and costs or damages incurred.

Alimony or maintenance pending action. 628.
(1) In any matrimonial action, a petition for alimony or maintenance pending the action may be presented by either spouse.

(2) Such petition shall be preferred and dealt with by way of summary procedure, and shall contain a statement in genera) terms of the income and property of the other spouse in so far as they are within the knowledge or belief of the petitioner.

(3) The Court, on being satisfied of the truth of the statements therein contained, may make such order for payment of alimony or maintenance pending the action, as the case may be, as it may deem just, having regard to the income if any of the petitioner:

Provided that where the petitioner has no income of his own, alimony or maintenance pending the action shall in no case be less than one-fifth of the average net income of the other spouse for the three years next preceding the date of the order, and shall continue, in case of a decree nisi for dissolution or of nullity of marriage, until the decree is made absolute.

(4) An order for alimony or maintenance made under this or the next succeeding section may be enforced either in accordance with the provisions of this Chapter or in the manner provided in the Maintenance Ordinance.

Permanent alimony. 629.
(1) The Court may, if it thinks fit, upon pronouncing a decree of divorce or separation, order for the benefit of either spouse or of the children of the marriage or both that the other spouse shall do any one or more of the following: -
(a) make such conveyance or settlement as the Court thinks reasonable of such property or any part thereof as he may be entitled to;

(b) pay a gross sum of money;

(c) pay annually or monthly such sums of money as the Court thinks reasonable;

(d) secure the payment of such sums of money as may be ordered under sub-paragraph (b) or sub-paragraph (c) by the hypothecation of immovable property, or by the execution of a bond with or without sureties, or by the purchase of a policy or annuity in an insurance company or other institution approved by Court.

(2) The Court may at any stage discharge, modify, temporarily suspend and revive or enhance an order made under subsection (1).

Other orders which may be made in course of matrimonial action. 630.
(1) The Court may after a decree for divorce or nullity, inquire into the existence of ante-nuptial or post-nuptial settlements made on the parties whose marriage is the subject of the decree and may make such orders, with reference to the application the whole or a portion of the property settled, whether for the benefit of the husband or the wife, or op the children (if any) of the marriage, or of both children and parents, as to the Court seems fit:

Provided that the Court shall not make any order for the benefit of the parents or either of them at the expense of the children.

(2) In any matrimonial action, whether before or after decree for divorce, nullity, or separation, the Court may from time to time, make such orders, and provisions, as the Court deems proper with respect to the custody, maintenance, and education of the minor children, the marriage of whose parents is the subject of the action, and may if it thinks fit, direct proceedings to be taken for placing such children under the protection of the Court.

(3) Where the wife or husband is not possessed of sufficient income or means to defray the costs of litigation, the Court may at any stage of the action order the spouse who is possessed of sufficient income or means to defray such costs, to pay to the other spouse such sum on account of costs as it considers reasonable, or it may require such spouse to give security for the due payment of such costs.

(4) A co-defendant may be ordered to pay the whole or any part of the costs of the proceedings: Provided that the co-defendant shall not be so ordered to pay if-
(a) the other defendant was at the time of the adultery living apart from the other spouse; or

(b) if at the time of adultery he had no reason to believe the other defendant to be a married person.

Applicability of preceding provisions. 631. The provisions of this Chapter relating to Matrimonial actions shall not apply to any marriage between persons professing Islam or to any marriage affected by the provisions of the Kandyan Marriage and Divorce Act.

PARTITION ACTIONS

Institution of partition action. 632.
(1) Where any land belongs in common to two or more owners, any one or more of them may institute an action for the partition or sale of the land in accordance with the provisions of this Chapter subject to such modifications as are set out in the next succeeding sections.

(2) A co-owner shall not be entitled to institute a partition action in respect of a land if there exists a valid deed of partnership which binds such co-owner to cultivate that land or to raise crops or produce thereon for the purpose of selling such crops or produce or which is for the purpose of carrying on any trade, manufacture or occupation relating to or connected with the joint ownership of that land, and if any of the terms, conditions or covenants of that deed of partnership will be avoided, infringed or violated by a partition or sale of the land. The provisions of this subsection shall not apply in any case in which the right to institute a partition action has been expressly reserved in the deed of partnership referred to in this subsection.

(3) No person acting in the capacity of an executor or administrator shall institute a partition action in respect of any land belonging to the estate which he is administering.

(4) A partition action may be instituted by presenting the plaint to the Court within the local limits of whose jurisdiction the land which is. the subject-matter of the action is situated in whole or in part.

(5) The provisions of the Conciliation Boards Act, No. 10 of 1958, shall not apply to a partition action.

Requisites of plaints in partition actions. 633.
(1) The plaint in a partition action shall contain, in addition to the other particulars required to be stated in a plaint, the following additional particulars:-
(a) the name, if any, and the extent and value of the land to which the action relates;

(b) a description of that land by reference to physical metes and bounds or by reference to a sketch, map or plan which shall be appended to the plaint;

(c) the names and addresses of all persons who are entitled or claim to be entitled to any right, share, or interest to, of, or in that land or to any improvements made or effected on or to that land, and the nature and extent of any such right, share, interest or improvements, so far as such particulars are known to the plaintiff or can be ascertained by him; and

(d) a statement setting out, with reference to a pedigree which shall be appended to the plaint, the devolution of the title of the plaintiff and, where possible, the devolution of the title of every other person disclosed in the plaint as a person entitled or claiming to be entitled to that land, or to any right, share, or interest to, of, or in that land.

(2) The plaintiff in a partition action shall include in his plaint as parties to the action all persons who, to his knowledge-
(a) are entitled or claim to be entitled-
(i) to any right, share, or interest to, of, or in the land to which the action relates, whether vested or contingent, and whether by way of mortgage, lease, usufruct, servitude, trust, life interest, or otherwise, or

(ii) to any improvements made or effected on or to the land; or

(b) are in actual possession of the land or any part thereof, and claiming to be entitled to any right, share or interest to, of, or in the land to which the action relates:

Provided that in the case of a mortgage, the mortgagee or any person claiming any interest under him shall be included as a party only if he had registered an address for service of legal documents in terms of sections 6 and 28 of the Mortgage Act:

Provided further that if such mortgagee or person aforesaid claims under an instrument executed more than fifteen years prior to the institution of the action he shall not be a necessary party to such action unless he had registered an address for service of legal documents in terms of the aforesaid provisions of the Mortgage Act within a period of ten years prior to the date of the institution of the action.

Costs of preliminary survey to be deposited 634.
(1) The plaint in a partition action shall be accompanied by proof of the payment into Court by the plaintiff of the estimated costs of the preliminary survey determined by such plaintiff by reference to such rates as shall be prescribed from time to time by the Minister by regulation.

(2) After the preliminary survey of the land to which a partition action relates is made the Court shall determine the actual costs of such survey in accordance with the prescribed rates. If the actual costs so determined are more than the estimated costs determined under subsection (1) the Court shall make order specifying the party by whom, and the date on or before which, the amount of the difference between such actual costs and such estimated costs shall be deposited in Court. The Court may for sufficient cause make an order or orders granting such party further time to deposit that amount.

(3) Where a party fails to deposit in Court on or before the date fixed for the purpose the amount required to be deposited by an order under subsection (2) of this section or under section 642 the Court may-
(a) where the defaulting party is the plaintiff, dismiss the action;

(b) where the defaulting party is a defendant reject such part, if any, of his statement of claim as avers or has the effect of averring that the land described in the plaint is only a portion of a larger land which should have been made the subject-matter of the partition action or that only a portion of the land so described should have been made such subject-matter.

Application for registration of action as lis pendens to be filed with plaint. 635.
(1) The plaintiff in a partition action shall file in Court with the plaint--
(a) Where the land to which the action relates is situated in one registration district, an application for the registration of the action as a lis pendens addressed to the Registrar of Lands of that district, or

(b) where the land is situated in two or more registration districts, a separate application for registration of the action as a lis pendens addressed to the Registrar of Lands of each of those districts.

The application or each of the applications referred to in this subsection shall be in duplicate and substantially in the form prescribed by the Registration of Documents Ordinance and shall contain a blank space for the insertion of the number to be assigned to the action by the Court.

(2) Notwithstanding anything to the contrary in the Registration of Documents Ordinance or in any regulation made thereunder, no fee shall be charged for the registration of a partition action as a Us pendens under that Ordinance.

(3) Upon the plaint being presented the Registrar shall duly register and number the plaint and shall insert in each copy of the application for the registration of the action as a his pendens a reference to the number so assigned, and transmit the application in duplicate to the Registrar of Lands of each land registry in which the action is to be registered as a lis pendens.

(4) A Registrar of Lands to whom an application has been transmitted by a Court under this section Shall, upon registration of the action as a lis pendens, return to the Court the duplicate of the application duly endorsed in the manner prescribed by the Registration of Documents Ordinance on or before the date fixed by the Court for the return of such duplicate.

(5) After a partition action is duly registered as a lis pendens under the Registration of Documents Ordinance no voluntary alienation, lease or hypothecation of any undivided share or interest of or in the land to which the action relates shall be made or effected until the final determination of the action by dismissal thereof, or by the entry of a decree of partition or by entry of a certificate of sale.

Any voluntary alienation, lease or hypothecation made or effected in contravention of the provisions of this subsection shall be void:

Provided that such voluntary alienation, lease or hypothecation shall, in the event of the partition action being dismissed, be deemed to be valid.

Declaration of attorney-at-law and papers to be filed with such declaration. 636.
(1) After a partition action is registered as a lis pendens under the Registration of Documents Ordinance the plaintiff shall file in Court a declaration under the hand of an attorney-at-law certifying that all such entries in the register maintained under that Ordinance as relate to the land constituting the subject-matter of the action have been personally inspected by that attorney-at-law after the registration of the action as a lis pendens, and containing a statement of the name of every person found upon the inspection of those entries to be a person whom the plaintiff is required to include in the plaint as a party to the action and also, if an address of that person is registered in the aforesaid register, that address.

(2) The plaintiff shall, together with the declaration referred to in subsection (1), file in Court-
(a) if the aforesaid declaration discloses any person who is not mentioned in the plaint as a, party to the action but who should be made such a party, a motion to amend the plaint by including therein that person as a party to the action, and shall tender therewith an amended caption including therein the name and address of such person and, upon such motion being allowed by Court such amended caption shall be deemed for all purposes to be the caption to the plaint in the action;

(b) as many duplicate copies of the summons as there are defendants;

(c) one copy of the plaint to be attached to the commission issued to the surveyor who is to make the preliminary survey of the land;

(d) as many copies, in duplicate, of the notice referred to in section 637 as there are lands to which the action relates.

Issue of summons and notices. 637.
(1) After a partition action has been Registered as a lis pendens under the Registration of Documents Ordinance and the plaintiff has complied with the provisions of section 636 the Court shall cause the summons to be served in accordance with law.

(2) Upon the issue of summons a notice of the partition action in the prescribed form shall be transmitted by the Registrar to the Grama Sevaka of the division or of each of the divisions in which the land or each of the lands to which the action relates is situated. Every Grama Sevaka to whom a notice is so transmitted shall cause such notice to be exhibited in a conspicuous position at his office for a period of not less than thirty days and shall also cause a copy thereof to be exhibited in a conspicuous position on the land or on each of the lands to which the notice relates, and shall make a report to the Court accordingly.

Commission to survey land. 638.
(1) Every Court having jurisdiction to try a partition action shall from time to time prepare a list of surveyors to whom commissions may be issued under this Chapter.

(2) Simultaneously with the issue of summons in a partition action, the Court shall issue a commission to a Surveyor directing him to survey the land to which the action relates and to make a due return to his commission within forty-two days of the issue thereof: Provided that the Court may, in its discretion, extend such date from time to time as the circumstances of the case may require.

(3) The commission issued to a surveyor under subsection (2) shall be substantially in the prescribed form and shall have attached thereto a copy of the plaint. The Court may in such commission or by subsequent order make provision authorizing the surveyor to survey any larger land than that described in the plaint if any defendant named in the plaint points out such larger land as the land which should be the subject-matter of the partition action.

(4) On receipt of his commission, the surveyor shall fix a date for commencing the survey of the land referred to therein and shall, at least ten days before that date, issue notice in writing to all the parti named in the plaint that he proposes to common the survey of the land on that date. Such notice shall be in the prescribed form and shall be sent to each party through the post by registered letter directed to the address stated in the plaint. The surveyor shall in addition, at least ten days before the date fixed by him for commencing the survey, cause the fact that he will commence the survey on that date to be orally proclaimed, in the customary mode or in such other manner as the Court may direct, on the land to be surveyed.

Return to surveyor's commission. 639.
(1) The surveyor shall duly execute the commission issued to him, and, in doing so shall where any boundary of the land surveyed by him is undefined, demarcate that boundary on the ground by means of such boundary marks as are not easily removed or destroyed, and shall, on or before the date fixed for the purpose, make due return thereto and shall transmit to the Court. -
(a) a report substantially in the prescribed form verified by affidavit stating-
(i) the dates on which notice of survey was issued to the parties;

(ii) the nature of the land surveyed and of any buildings, walls, trees, fences, wells, plantations and other improvements thereon;

(iii) whether or not the land surveyed by him is in his opinion substantially the same as the land sought to be partitioned as described in the schedule to the plaint ;

(iv) the parties to the partition action who were present at the survey, and the name and address of any person (not being a party to the action) who, at the time of the survey, preferred any claim, and the nature of such claim;

(v) the persons who pointed out the land to be surveyed ;

(vi) the result of his investigation of any particular fact or matter specifically referred to in the commission ; and

(vii) any fact, matter or circumstance relating to his survey or to the land surveyed which, in his opinion, may be necessary for, or prove of assistance in, the determination of the partition action ;

(b) a plan of the land surveyed, verified by affidavit, showing-
(i) the boundaries of any divisions of the land subsisting at the time of his survey, such divisions being indicated by appropriate letters or numerals ;

(ii) the boundaries of any land belonging to the State which may fall within the land surveyed by him;

(iii) the locations of all buildings, walls and wells, such locations being indicated by appropriate letters or numerals ;

(iv) the trace or course of any road, path or stream within the boundaries of the land ; and

(v) any other physical feature of or on the land which, in his opinion, may be necessary for, or prove of assistance in, the determination of the partition action ; and

(c) a certified copy of his field notes.

(2) The documents referred to in paragraphs (a), (b) and (c) of subsection (1) may, without further proof, be used as evidence of the facts stated or appearing therein at any stage of the partition action:

Provided that the Court shall, on the application of any party to the action and on such terms as may be detained by the Court, order that the surveyor shall be summoned and examined orally on any point or matter arising on or in connexion with any such document or on any statement of fact therein or any relevant fact which is alleged by any party to have been omitted therefrom.

(3)
(a) Notwithstanding anything in subsection (2) the Court, either of its own motion or on the application of a party to the action may, before using the copy of the surveyor's field notes and the plan, cause them to be verified and to be certified as correct or where such field notes and plan are incorrect, cause fresh field notes and a fresh plan to be made by the Surveyor-General or by any officer of his department authorized by him in that behalf, and may for that purpose issue a commission to the Surveyor-General.

(b) As soon as may be after the receipt by the Surveyor-General of any commission issued under this subsection, the Surveyor-General or any officer of his department authorized by him in that behalf shall verify the field notes and the plan received with the commission and shall, where they are correct, certify them to be correct or, where they are incorrect, make fresh field notes and a fresh plan, and the Surveyor-General shall make a due return to the commission with the field notes and the plan so certified or with the fresh field notes and the fresh plan.

(c) The field notes and the plan certified as correct under paragraph (b) of this subsection, or the fresh field notes and the fresh plan furnished by the Surveyor-General under that paragraph, shall be used for the purposes of subsection (2) at ail stages of the action subsequent to the receipt by the Court of the return made by the Surveyor-General under that paragraph.

(d) The Surveyor-General, or any officer of his department authorized by him in that behalf, shall for the purposes of the execution of any commission issued under this subsection, have power to inspect or survey the land after giving not less than seven days' notice to the parties to the action of his intention so to do.

(e) The Surveyor-General shall not be entitled to the reimbursement of the costs incurred in the execution of a commission issued to him under this subsection unless the Court, upon the amount of such costs feeing certified to the Court by the Surveyor-General, makes order specifying the party by whom, and the date on or before which, that amount shall be deposited in Court.

(f) The party depositing the amount of the Surveyor-General's costs shall be given credit therefor in such manner as the Court direct.

(g) If the costs due to the Surveyor-General are not deposited as ordered by the Court, it shall be lawful for the Court to direct the recovery thereof in the same action as though the order for the payment of such costs were a decree in favour of the State against the party ordered to pay such costs.

Requisites of answers in partition actions. 640. The answer filed by a defendant in a partition action shall contain, in addition to the particulars necessary for answers, the following particulars-
(a) a statement of claim setting out the nature and extent of his right, share or interest to, of or in the land to which the action relates, and if he disputes any averment in the plaint relating to the devolution of title, a pedigree showing the devolution of title;

(b) if his right, share or interest to, of or in the land is mortgaged or leased by an instrument registered under the Registration of Documents Ordinance, the name and address of the mortgagee or lessee; and

(c) the name and address of every person, not being a party to the action, who to his knowledge has any right, share or interest to, of or in the land.

Notice of partition action to persons disclosed. 641.
(1) The Court shall order notice of a partition action to be served-
(a) on every claimant (not being a party to the action) who is mentioned in the report of the surveyor under subsection (1) of section 639; and

(b) on every person disclosed under paragraph

(c) of section 640 by a defendant in the action:

Provided that where any such person is disclosed after the date of trial has been fixed the issue of notice under this section shall be in the discretion of the Court.

(2)
(a) The plaintiff in a partition action shall file in Court the notices which are to be served under paragraph (a) of subsection (1).

(b) A defendant who discloses any person referred to in paragraph (b) of subsection (1) shall, unless the Court otherwise orders, file in Court the notice which is to be served under that subsection on that person.

(3) Every person named in the plaint, or desiring to be added, as a party to a partition action, shall be entitled, on payment of a fee of one rupee, to obtain from the Court a copy of the plaint or of any statement of claim in that action.

Dispute as to corpus sought partitioned. 642.
(1) Where a defendant in a partition action avers that the land described in the plaint is only a portion of a larger land which should have been made the subject-matter of the action or that only a portion of the land so described should have been made such subject-matter, or that the plan of the land surveyed does not correctly depict the land described in the plaint, the Court may upon the application of such defendant and at his cost and expense in the first instance unless the Court otherwise orders, issue a commission to the surveyor to whom the commission for the preliminary survey was issued or where such surveyor is not available, to any other surveyor directing him to survey the extent of land referred to by that defendant. The provisions of sections 638 and 639 shall apply in relation to a survey under a commission issued under this subsection.

(2) Where a survey of a larger land is made under a commission issued under subsection (1) on the averment that the land described in the plaint is only a portion of a larger land which should have been made the subject-matter of the action, the Court shall specify the party to the action by whom, and the date on or before which, an application for the registration of the action as a lis pendens affecting that larger land shall be filed in Court, and the provisions of section 635 shall apply to that application.

(3) The party to the action specified by the Court under subsection (2)-
(a) shall file or cause to be filed in Court a statement setting out the names and addresses of all persons (other than persons named in the plaint as parties to the action) who an entitled or claim to be entitled to any right, share, or interest to, of or in the larger lane referred to in that subsection or to any improvements made or effected on or to that land and the nature and extent of any such right, share, interest or improvements, so far as such particulars are known to him or can be ascertained by him, and

(b) shall, after the action is registered as a lis pendens affecting such larger land, file or cause to be filed in Court a declaration under the hand of an attorney-at-law certifying that all such entries in the register maintained under the Registration of Documents Ordinance as relate to such larger land have been personally inspected by that attorney-at-law after the registration of the action as a Us pendens affecting such larger land, containing a statement of the name of every person found upon the inspection of those entries to be a person whom the plaintiff is required by subsection (2) of section 633 to include in the plaint as a party to the action if the action is in respect of such larger land, and also, if an address of that person is registered in the aforesaid register, that address.

(4) Where on an application filed in Court under subsection (2) the action is registered as a lis pendens affecting a larger land than that described in the plaint, the Court may proceed with the action as though it had been instituted in respect of such larger land, and may, for such purpose, make any order in regard to service of notice of the action on any person who should be added as a party to the action and such other orders as the circumstances of the case may require.

(5) A discrepancy between the description of the land surveyed and depicted in the preliminary plan and the description of the land set out in the schedule to the plaint shall not by itself affect the plaintiff's right to maintain the action.

Addition of parties. 643.
(1) The Court may at any time before interlocutory decree is entered in a partition action add as a party to the action, on such terms as to payment or prepayment of costs as the Court may order-
(a) any person who, in the opinion of the Court, should be, or should have been, made a party to the action, or

(b) any person who, claiming an interest in the land, applies to be added as a party to the action.

(2) Where a person is a party to a partition action and his right, title and interest to or in the land to which the partition action relates are sold, during the pendency of the partition action, in execution of, or under, any decree, order or process of any Court, the purchaser of such right, title and interest at the sale shall be entitled to be substituted for that person as a party to the partition action, and such purchaser, when so substituted, shall be bound by the proceedings in the partition action up to the time of the substitution.

(3) Where a party to a partition action derives his right, share or interest to, of, or in the land to which the action relates under or by virtue of an instrument which reserves to any other person the right to claim a re-transfer of such interest as aforesaid within a period specified therein, such other person shall be entitled to intervene in the said action and establish the right claimed by him as if he had been a co-owner at the time of the institution of the action.

Trial. 644.
(1) On the date fixed for the trial of partition action the Court shall examine the title of each party and shall hear and receive evidence in Support thereof and shall try and determine all questions of law and fact arising in that action in regard to the right, share, or interest of each party to, of. or in the land to which that action relates and may consider, and decide which of the orders mentioned in subsection (3) should be made.

(2) At the conclusion of the trial of a partition action, the Court shall pronounce judgment. As soon as may be after the judgment is pronounced, this Court shall enter an interlocutory decree in accordance with the findings in the judgment.

(3) The interlocutory decree may include one or more of the following orders, so however that the orders are not inconsistent with one another: -
(a) order for a partition of the land;

(b) order for a sale of the land in whole or in lots;

(c) order for a sale of a share or portion of the land and a partition of the remainder;

(d) order that any portion of the land representing the share of any particular party only shall be demarcated and separated from the remainder of the land;

(e) order that any specified portion of the land shall continue to belong in common to specified parties or to a group of parties;

(f) order that any specified portion of the land be excluded from the scope of the action;

(g) order that the whole of the land be allotted to a party in accordance with the provisions of subsection (5);

(h) order that any specified portion of the land be allotted to a bona fide improver in possession in accordance with the provisions of subsection (6);

(i) order that any share remain unallotted.

(4) Where, in a scheme of partition of a land, a person is entitled to a divided portion which, by reason of its trivialness in extent or value, the Court considers it inexpedient to allot to that person, the Court may, on the payment to that person of such compensation as may be determined by the Court, allot that portion to any other person who in that scheme is entitled to a divided portion adjoining the first-mentioned portion.

(5) Where the parties are entitled to portions which the Court considers inexpedient to partition or sell, the Court may allot the whole of the land to the co-owner who was in possession of such land at the date of the institution of the action.

(6) Where improvements, being in the nature of building, have been effected to land by a bona fide improver in possession, the Court may, having regard to the nature, extent and value of the improvements so effected, allot the land upon which the buildings stand to such bona fide improver.

(7) Where an order in terms of the provisions of subsection (4) or subsection (5) or subsection (6) is made, the amount of payment to be made to or by any party in respect of compensation for improvements or of owelty shall be determined by Court at the time of the entering of interlocutory decree, and the amount so determined shall, from the date of final decree, be a charge on the land alloted to the party made liable to the payment.

(8) Where the action is in respect of two or more lands, the Court may, in lieu of ordering the allotment of divided portions in all such lands to the persons entitled thereto, order that-
(a) any divided portion or portions of one or of some of such lands or

(b) the entirety of one or some of such lands, whether with or without any divided portion or portions of any other such land or lands,

be allotted to any such person, whether with or Without the award to him of owelty or of compensation for any improvements made by him to any such land. In any order under this subsection the Court at the I time of the entering of intelocutory decree or final decree shall determine the amount of any owelty or of any compensation for improvements and the party by whom and the party to whom such owelty or compensation shall be paid.

(9) Where the Court has ordered the sale of a share or portion of the land and the partition of the remainder, the Court may allot to each of the parties such share of the money to be realized by the sale of the share or portion of land ordered to be sold, or such share of the soil in the remainder ordered to be partitioned, or such share of both the money and the remainder of the land, as the Court may consider just in the circumstances of each case.

(10) Where a person having the ownership of a permanent plantation, apart from the soil, on the land to which a partition action relates is a party to the action, he shall be entitled only to receive, compensation in respect of that plantation. The ownership of a permanent plantation, apart from the soil, on a land may, for the purposes of this subsection, be established by proof of any agreement with owner of the land or of any custom recognized in the locality in which the land is situated, notwithstanding the provisions of the Prevention of Frauds Ordinance.

Commission for division of land into lots, or for sale or partition. 645.
(1) Where the Court decides that the land shall be sold in lots; the Court shall, at the time of entering interlocutory decree or on a later date notified by the Court, order the issue of a commission for the division of the land into lots to a person to be named in the order and in open Court fix the returnable date of the commission.

(2) At the time of entering interlocutory decree or on a later date notified by the Court, the Court shall order the issue of a commission for sale, or for partition, or for both sale and partition, or of two separate commissions for sale and for partition as the case may require, to a person to be named in the order and shall in open Court fix the returnable date of the commission.

(3) Where the Court decides that the land or any portion thereof shall be partitioned, the commission under subsection (2) shall be issued to the surveyor who made the preliminary survey unless the Court direct that such commission shall be issued to some other surveyor.

(4) The Court may from time to time extend the returnable date referred to in subsection (1) or sub-section (2).

(5) The Court may revoke a commission issued under this section and order the issue of a fresh commission.

(6) Every commission issued under this section shall be substantially in the prescribed form and shall have attached thereto-
(a) a copy of the interlocutory decree certified as a true copy by the Registrar of the Court, and

(b) a statement specifying the place of residence of each party who has been allotted any right, share or interest to, of or in the land to which the interlocutory decree relates.

(7) Where the Court orders a commission to be issued, the Court shall-
(a) determine the amount to be deposited as the costs of the commission, such costs in the case of a commission for partition being determined according to the prescribed rates; and

(b) specify the party by whom the costs are to be deposited.

If the costs are not deposited in Court by the party specified within ten days or within such further time as may be allowed by the Court on application made In that behalf, the Court may order or permit any other party to deposit the costs. If, however, the costs are not deposited by the party so ordered or permitted within ten days or within such further time as may be allowed, the Court may dismiss the action or make such other order as the circumstance may require. The party depositing costs under this sub-section shall be given credit therefor in such manner as the Court may direct.

(8) After the survey for the final partition of the land has been made, the Court shall determine the actual costs of such survey in accordance with the prescribed rates and if the actual costs so determined are more than the estimated costs determined under subsection (7), the Court shall make an order specifying the party by whom and the date on or before which the amount of the difference between the actual costs and the estimated costs shall be deposited in Court. If the amount of such difference is not paid on the due date as ordered by the Court, it shall be lawful for the Court to direct the recovery thereof in the same action as though the order for the payment of that amount were a decree in favour of that surveyor against the party ordered to pay that amount.

Execution of commission for partition. 646.
(1) On receipt of a commission to partition the land, the surveyor shall fix a date for partitioning the land and shall, at least ten days before that date, issue notice in writing to each party mentioned in the statement attached to the commission that the land will be partitioned on that date.

(2) A notice to any party under subsection (1) shall be in the prescribed form and shall be sent to him through the post by registered letter addressed to his place of residence specified in the statement attached to the commission.

(3) In addition to the written notice required to ,be issued under subsection (1), the surveyor shall, at least ten days before the date fixed for partitioning the land, cause to be orally proclaimed on the land in the customary mode or in such other manner as the Court may direct the fact that the land will be partitioned on that date.

(4) 'the date fixed under subsection (1) for partitioning the land may from time to time be altered to a later date by the surveyor by written notice addressed to the parties mentioned in that subsection. Every such notice shall, not less than seven days before such later date, be served in the manner provided in subsection (2) and a copy of the notice shall, in addition, be exhibited in a conspicuous position on the land.

(5) The surveyor shall, on the date fixed for partitioning the land, proceed to the land and prepare a scheme of partition in conformity with the interlocutor decree and with any special directions contained in his commission and demarcate the divided portions on the land by means of such boundary marks as are not easily removed or destroyed. He shall inform; the parties present of the returnable date of his commisson.

(6) The surveyor shall make his return to the commission, verified by affidavit substantially in the prescribed form on or before the returnable date and together with such return he shall transmit to the Court-
(a) the plan of partition prepared by him,

(b) a certified copy of his field notes;

(c) a report explaining the manner in which the land has been partitioned stating the names of the parties, the nature and extent of their respective shares and interests, the dates on which notices were issued to such parties for the purpose of partitioning the land and the date on which the land was partitioned, and, where a lot is alloted in common to several parties, specifying each party's share of that lot; and

(d) the appraised value of each lot and of any improvements thereon and the details of the computation of such value; and

(e) a sumary of distribution substantially in the prescribed form.

(7) Where no provision is made in the interlocutory decree for the allotment of a lot in common, the surveyor shall not allot a lot in common to any parties without the written consent of those parties.

(8) The surveyor shall so partition the land that each party entitled to compensation in respect of improvements effected thereto or of buildings erected thereon will, if that party is entitled to a share of the soil, be allotted, so far as is practicable, that portion of the land which has been so improved or built upon, as the case may be.

(9) Where under any scheme of partition prepared by a surveyor, payment has to be made to or by any party to a partition action in respect of compensation for improvements to the land or of owelty, the amount of such payment shall, in the first instance, be assessed by the surveyor and shall be finally determined by the Court. The amount determined by the Court,; under this subsection as compensation for improvements or as owelty shall, from the date on which final decree is entered, be a charge on the portion of the land or the extent of land finally allotted to the party made liable for the payment of such compensation or owelty, as the case may be.

(10) After the surveyor makes a return to the commission, the Court shall fix a date for the consideration of the scheme of partition proposed by the surveyor. The date so fixed shall be a date more than thirty days after the receipt of such return by the Court. On the date so fixed or on any later date which the Court may fix for the purpose, the Court may, after inquiry, confirm with or without modification the scheme of partition proposed by the surveyor.

Consideration of scheme of division of land into lots. 647.
(1) The person who receives a commission to divide a land into lots for the purpose of the sale of the land in lots shall make his return to the commission, verified by affidavit substantially in the prescribed form, on or before the returnable date, and together with such return he shall transmit to the Court-
(a) a plan of the division of the land into lots, and

(b) a report explaining the manner in which; the land is divided into lots.

(2) After the person referred to in subsection (1) makes a return to the commission, the Court shall fix a date for the consideration of the scheme of division of the land into lots proposed by such person. On such date, or on any later date which the Court may fix for the purpose, the Court shall, after inquiry, confirm such scheme with or without modification.

Valuation of land. 648.
(1) Where in a partition action the Court orders the issue of a commission to any person for the purpose of the sale of the land in lots or to sell the land otherwise than in lots, the Court shall fix a date on or before which that person shall transmit to the Court a valuation of the land.

(2) The valuation referred to in subsection (1) shall show separately and in detail-
(a) where the land valued is to be sold in lots, the appraised value of each lot and of any improvements thereon with particular reference ) to the value of the improvements made by each party in each lot, and

(b) where the land is to be sold otherwise than in lots, the appraised value of the land and of any improvements thereon with particular reference to the value of the interest, of each party in the entire land.

(3) After considering the valuation under the preceding provisions of this section and after such inquiry as the court may consider necessary, the Court shall determine the value of the land or, where the land is to be sold in lots, the value of each of the lots and the value of the improvements.

Sale. 649.
(1) After determining the value of the land or, where the land is to be sold in lots, the value of each of the lots, and the value of the improvements, the Court shall prescribe the conditions of sale and issue such orders as the Court may consider necessary for the conduct of the sale, including orders as to the manner in which and the number of days before which notice of the sale or adjourned sale of the land shall he given and published by the person responsible for the sale.

(2) The Court may, on application made in that behalf by a co-owner who desires to purchase the land or a lot, specify the terms as to credit to be allowed to him at the sale, having regard to the amounts, if any, payable by him by way of pro rata costs, compensation for improvements, owelty, mortgage debts or otherwise:

Provided that a co-owner who purchases the land or a lot thereof without having previously applied for credit as herein before provided shall be entitled to receive credit for the net amount he has to receive out of the proceeds of sale.

(3) The person responsible for the sale shall give notice that he will, on a date to be specified in the notice, sell the land in terms of the commission or order for sale issued to him and in accordance with the conditions prescribed and the orders issued by the Court under subsections (1) and (2). He shall, in addition to giving such notice in any other manner which may be specified by the Court, give such notice by registered, letter sent through the post to each party declared in the interlocutory decree to be entitled to any right, share or interest to, of or in the land.

(4) On the date specified in the notice referred to in subsection (3), the person responsible for the sale shall, in terms of the commission or order for sale issued to him, and in accordance with the conditions of sale prescribed and the orders issued by the Court under subsections (1) and (2)-
(a) first put up the land or, where the land is to be sold in lots, put up each lot to auction among the co-owners thereof, and if the highest bid made at that auction is not less than the value of the land or of that lot determined by the Court under section 648, declare the co-owner by whom that bid was made to be the purchaser of the land or of that lot; and

(b) if no co-owner becomes the purchaser of; the land or of any lot, put the land or that lot up to public auction, permit the co-owners to bid thereat, and declare the highest bidder at such public auction to be the purchaser of the land or of that lot.

(5) The person responsible for the sale shall, after complying with the provisions of subsection (4), make his return to the Court, informing the Court of the amount for which the land or, where the land was sold in lots, each lot was sold and the name and address of the purchaser thereof, and pay into Court the deposited with him by the purchaser.

(6) The purchaser of the land or, where the land was sold in lots, the purchaser of each lot shall pay into Court the money realized by the sale of the land or of that lot in conformity with the conditions prescribed and the orders issued by the Court under subsection^ (1) and (2):

Provided that, where the purchaser is a co-owner, he shall be allowed such credit as may have been deter-mined by the Court under subsection (2).

(7) Any objection to a sale held under subsection (4) shall be preferred to Court within a period of thirty days reckoned from the date of receipt by the Court of the return to the commission for sale, and the Court shall, after inquiry, make such order as the circumstances of the case may require.

(8) The Court shall confirm a sale if, within the period; referred to in subsection (7), no objection is preferred against the sale, or if any objection duly preferred under that section is not upheld by the Court after inquiry: Provided that, where the amount realized by the sale of the land or of any lot under paragraph (b) of subsection (4) is less than the value of the land or of that lot determined by the Court under section 648, the Court may set aside the sale of the land or of that lot on such terms and conditions as the Court may determine and order the issue of a fresh commission for the sale of the land or of that lot and make all such orders as the Court considers necessary for the conduct of the sale.

(9) Upon the confirmation of the sale of the land or of any lot, the Court shall enter in the record a certificate of sale substantially in the prescribed form in favour of the purchaser. The Court may, on the application of the purchaser, attach to the certificate a plan of the land or lot prepared at the cost of the purchaser and authenticated by the Court.

(10) For the purposes of this section " co-owner " means a party to whom a share of the land has been allotted in the interlocutory decree and includes a person who has been declared by such decree to be entitled to any right to compensation for improvements.

Distribution and withdrawal of money in Court. 650.
(1) The Court shall cause to be prepared by a party named by the Court a scheme of distribution showing the amount which each party is entitled to withdraw out of the money deposited in Court.

(2) No money shall be withdrawn from Court by any party until the schedule of distribution has bean approved by the Court.

(3) A party entitled to compensation in respect of a plantation or a building or otherwise shall share proportionately with the other parties in any gain or loss, as the case may be, resulting from the said of the land at a figure above or below the value determined by the Court under section 648.

Finality of partition decree. 651.
(1) Save as provided by subsection (5), the Interlocutory decree and final decree of partition shall, subject to the decision on any appeal which may be preferred therefrom and subject to the provisions of subsection (3), be good and sufficient evidence of the title of any person as to any right, share or interest awarded therein to him and be final and conclusive for all purposes against all persons whomsoever,; whatever right, title or interest they have, or claim to have, to or in the land to which such decrees j relate and notwithstanding any omission or defect of procedure or in the proof of title adduced before the Court or the fact that all persons concerned are not parties to the partition action; and the right, share or interest awarded by any such decree shall be free from all encumbrances whatsoever other than those specified in that decree.

In this subsection " omission or defeat of procedure " shall include an omission or failure-
(a) to serve summons on any party,

(b) to substitute the heirs or legal representative of a party who dies pending the action or to appoint a person to represent the estate of the deceased party,

(c) to appoint a guardian ad litem over a party who is a minor or a person of unsound mind.

In this and in the next subsection " encumbrance " means any mortgage, lease, usufruct, servitude, life interest, trust, or any interest whatsoever howsoever arising except a constructive or charitable trust and a lease at will or for a period not exceeding one month.

(2) Where in pursuance of the interlocutory decree a land or any lot thereof is sold the certificate of sale entered in favour of the purchaser shall be conclusive evidence of the purchaser's title to the land or lot as at the date of the confirmation of the sale tree from all encumbrances whatsoever except any servitude which is expressly specified In such interlocutory decree ,and a lease at will or for a period not exceeding one month.

(3)
(a) Whenever a party to a partition action- (i) has not been served with summons, or (ii) being a minor or a person of unsound mind, has not been duly represented by a guardian ad litem, or (iii) dies before judgment is entered and no substitution of his heirs or legal representative has been made or no person has been appointed to represent the estate of the deceased party for the purpose of the action,

and in consequence thereof the right, title or interest of such party to or in the land which forms the subject-matter of the interlocutory decree entered in such action has been extinguished or such party has been otherwise prejudiced by the interlocutory decree, then, such party, or where such party is a minor or a person of unsound mind, a person appointed as guardian ad litem of such party, or the heirs or the executor or administrator of such deceased party or any person duly appointed to represent the estate of the deceased party, may at any time not later than thirty days after the date on which the return of the surveyor or the return of the person responsible for the sale, as the case may be, is received by the Court apply to the Court for special leave to establish the right, title or interest of such party to or in the said land notwithstanding the interlocutory decree already entered.

(b) The aforesaid application shall be by petition, supported by an affidavit verifying the facts, which shall confirm to the provisions of paragraph (a) of section 640, and shall specify to what extent and in what manner the applicant seeks to have the interlocutory decree amended, modified or set aside, and the parties affected thereby.

(c) If upon inquiry into such application, after prior notice to the parties to the action deriving any interest under the interlocutory decree, the Court is satisfied
(i) that the party affected had no notice whatsoever of the said partition action prior to the date of the interlocutory decree, and

(ii) that such party had a prima facie right, title or interest to or in the said land, and

(iii) that such right, title or interest has been extinguished or such party has been otherwise prejudicially affected by the said interlocutory decree,

the Court shall upon such terms and conditions as the Court in its discretion may impose, which may include an order for payment of costs as well as an order for security for costs, grant special leave to the applicant.

(d) Where the Court grants special leave as herein before provided it shall forthwith settle in the form of issues the question of fact and law arising from the pleadings and any further pleadings which are relevant to the claim set up in the petition only; and the Court shall appoint a date for the trial and determination of the same. The applicant, unless the Court otherwise especially orders, shall cause notice of such date to be given to all parties whose rights under the interlocutory decree are likely to be affected or to attorneys-at-law in such manner as the Court specify. The Court shall thereafter proceed to and determine the matters in issue in accordance the procedure applicable to the trial of a par action.

(e) Where the Court determines any matter in issue in favour of the applicant, it shall in accordance with its findings amend or modify the interlocutory decree to such extent and in such manner only as shall be necessary to give to the successful party, and to no other party or person whomsoever, the right, title or interest to which such party is entitled, or, in the event of the applicant being found entitled to the entirety of the said land forming the subject-matter of the interlocutory decree, the Court shall set aside the interlocutory decree and dismiss the action.

(4) The interlocutory decree and final decree of partition entered in a partition action shall have the final and conclusive effect declared by subsection (1) notwithstanding the provisions of section 44 of the Evidence Ordinance, and accordingly such provisions shall not apply to such decrees.

(5) The interlocutory decree or the final decree of partition entered in a partion action shall not have the final and conclusive effect given to it by subsection (1) as against a person who, not having been a party to the partition action, claims any such right, title or interest to or in the land or any portion of the land to which the decree relates as is not directly or remotely derived from the decree if, but only if, he proves that the decree has been entered by a Court without competent jurisdiction.

(6) The provisions of this section shall be deemed id have come into operation on the 1st day of June, 1951.

Action for damages by person who is not a party to partition action . 652.
(1) Any person, not being a party to a partition action whose rights to the land to which the action relates have been extinguished or who is otherwise prejudiced by the interlocutory decree entered in the action, may by separate action, recover damages from any party to the action by whose act whether of commission or omission, such damages may have accrued and any person who has benefitted by such act may be made a defendant in such separate action and shall, if damages are awarded in that action, be bound by that award to the extent of such benefit as may be determined by the Court to be that derived by him from such act.

(2) Where such action for damages as is referred to in subsection (1) is instituted and is registered as a lis pendens under the Registration of Documents Ordinance in, or in continuation of the folio in which the said interlocutory decree was registered before the decree of partition is entered, or the schedule of distribution is approved by the Court, in the partition action relating to that land, then, if any damages are awarded to the plaintiff in the action for damages-
(a) the amount of such damages shall be a charge on any share of the land or any money allotted in such partition action to the defendant or each of the defendants in the action for damages, and

(b) such charge shall rank next in priority to the charge referred to in subsection (7) of section 644 and the charge referred to in subsection (7) of section 657, and such charge shall be enforceable against such party and any person deriving right, title or interest therein or thereto from such partly, not being a transferee for value without notice of the right, title or interest of such plaintiff.

(3) For the purposes of subsection (1) a party to a partition action on whom summons had not been served or a party to such an action being a minor or a person of unsound mind, who shall not have been duly represented by a guardian ad litem, shall be deemed to be a person who was not a party to the said action. And where an application for special leave under the provisions of subsection (3) of section 651 had been refused without an adjudication upon the merits of the claim set up by such party, the order refusing leave shall not be a bar to an action under subsection (1) by the same party.

Lease of mortgage of undivided share. 653.
(1) If in an interlocutory decree for partition any undivided share of the land constituting the subject-matter of the partition action in which such decree is entered is declared to be subject to a mortgage or lease, the rights of the mortgagee or of the purchaser of the mortgaged share under a mortgage decree, or of the lessee, shall-
(a) Where the partition is otherwise than in accordance with an order made under subsection (8) of section 644, be limited to the share allotted in such decree to the mortgagor or lessor; and

(b) where the partition is in accordance with an order made under subsection (8) of section 644, be limited to so much of the extent of land and of any owelty or compensation allotted in the partition action to the mortgagor or lessor as the Court shall determine.

(2) If in a decree for sale any undivided share of the land constituting the subject-matter of the partition action in which such decree is entered is declared to be Subject to a mortgage, lease, usufruct or trust, the rights of the mortgagee or of the purchaser of the mortgaged share under a mortgage decree or of the lessee, the usufructuary or the beneficiary under the trust shall be limited to the share of the proceeds of the sale of the land representing the share which was subject to such mortgage, lease, usufruct or trust.

Registration of decree of partition, and certificate of sale. 654. Where in a partition action, an interlocutory decree or a final decree of partition or a certificate of sale is entered, the Court shall cause a copy of such decree or certificate to be transmitted to the Registrar of Lands of the district or of each of the districts in which the land or each of the lands to which such decree or certificate relates is situated, and such Registrar shall duly register such copy under the Registration of Documents Ordinance as an instrument affecting the land or each of the lands to which it delates. No fee shall be charged for the registration of such copy under such Ordinance notwithstanding anything to the contrary in such Ordinance or in any regulation made thereunder.

Delivery of possession of land to parties and purchasers 655. Every party to a partition action who has been declared to be entitled to any land by any final decree, and every person who has purchased any land at any sale and in whose favour a certificate of sale in respect of the land so purchased has been entered by the Court, shall be entitled to obtain from the Court, in the same action, on application made by motion in that behalf, an order for the delivery to him of possession of the land:

Provided that where such party is liable to pay any amount as owelty or as compensation for improvement, he shall not be entitled to obtain such order until such amount is paid.

Power of Court to enforce its decrees and orders and to deal with offences of contempt of Court. 656.
(1) A Court exercising jurisdiction in a partition action shall have full power to give effect to ever} order or decree made or entered in the action (including the power to order delivery of possession of any land or portion of land to any person entitled thereto) and to punish as for contempt of Court any person who-
(a) disobeys any such order, or

(b) obstructs or resists any person acting under the authority of the Court or exercising any power conferred on him by this Chapter, or

(c) damages, destroys or removes, during the pendency of the action or within one year of the entry of decree, any boundary mark which, under subsection (5) of section 646, has been made or set up on the land to which the action relates.

(2) Where, under subsection (1), a person is convicted of obstructing or resisting a surveyor engaged, under the authority of the Court, in doing any work on a land, the Court may, in addition to the imposition of any punishment on that person under that subsection, order him to pay an amount determined by the Court as the expenses of the surveyor if in consequence of the obstruction or resistance it is necessary for the surveyor to proceed again to such land for the purpose of doing such work. It shall be lawful for the Court to direct the recovery thereof in the same action as though the order for the payment of that amount were a decree in favour of that surveyor against the party ordered to pay that amount.

Recoverable costs. 657.
(1) In a partition action, the following costs shall, unless the Court otherwise directs, be borne by the parties to the action in the proportion of their respective rights to the land to which the action relates.
(a) the costs of the execution of the commission for the preliminary survey and the costs of the execution of the commission for the partition or sale of the land or for the division of the land into lots for the purpose of the sale of the land in lots, determined as herein before provided;

(b) the costs of the execution of any commission issued to the Surveyor-General;

(c) the costs of proving the common title including costs of deeds and other documents;

(d) other costs of instituting and prosecuting the action.

The costs referred to in paragraph (c) of this subsection shall be determined in accordance with the prescribed rates.

(2) The costs referred to in subsection (1) shall be known as the " recoverable costs " and the proportionate share thereof to be borne by each of the parties shall be known as the " pro rata costs " of that party and shall be recoverable in the same action from that party by the party who has incurred the recoverable costs.

(3) In the event of a contest, the Court, after hearing the parties concerned, shall fix the amount of the costs of the contest having regard to the value of the share or interest in dispute, and direct by whom such costs shall be paid.

(4) Where a party omits to prove his title, the Court may permit one of the other parties to prove the title of the party in default. The amount allowed by the Court as the costs of proving such title shall be specified in an order and shall be recoverable from the party in default.

(5) When parties are jointly interested in a contest the Court shall ordinarily allow only one set of costs for all such parties and may in its discretion apportion such costs among such parties; and, in the event of an appeal by or against them to the Supreme Court, only one amount shall be deposited by way of security for costs of appeal.

(6) It shall be lawful for the Court at any stage of a partition action to order any party to give security for costs if the Court is of opinion that the party has been guilty of unreasonable delay in presenting or prosecuting his claim, or fur ether good and sufficient cause.

Where the trial is postponed or adjourned in consequence of such delay on the part of a party, the Court may order that any costs payable by that party because of the postponement or adjournment shall be pre-paid.

If such party fails to give such security within the time allowed therefor by the Court or to make prepayment of costs then-
(a) where that party is the plaintiff, the Court may dismiss the action or may permit any defendant to prosecute the action and may substitute him as plaintiff for that purpose, or

(b) where that party is a defendant, the Court, may reject his claim.

(7) All costs due from any party to a partition action under subsection (1) or subsection (4) shall be a charge on the share of land or money allotted to that party in that action and such charge shall rank next in priority to the charge referred to in subsection (7) of section 644. In this subsection " money " shall include owelty or compensation.

(8) Costs shall ordinarily be borne by the person who incurs the costs except in cases where it is expressly provided by law that any costs or proportion of costs shall be borne, or may be ordered by the Court to be borne, by some other person.

(9) Where the Court is satisfied that the plaintiff in any action has not paid any costs or charges due from him in any previous action for partition instituted by him in respect of the same land, the Court may--
(a) fix a date for the payment of such costs or charges and stay proceedings until payment is made; and

(b) where such payment is not made on or that date, dismiss the action.

Representation of estate of deceased party or co-owner . 658. Where a party to a partition action or any-other person entitled, or claiming or alleged to be entitled, to any right, share, or interest to, of, or in the land, dies after the institution of that action, the heirs- or legal representative of such party or person may be substituted in his place, or, the Court may, on the ex "parte application of any other party, appoint a person to represent the estate of the deceased for the purposes of the action if the Court is satisfied, after such inquiry as the Court deems fit, that such appointment is necessary or desirable for the purpose of enabling the Court to proceed with the action with a view to its speedy determination; and any decree entered, order made, partition or sale effected, or thing done in the action shall, if the person so appointed is a party to the action, be for all purposes as valid and effectual as if the executor or administrator of the deceased or the person lawfully entitled to the right share or interest of the deceased were a party to the action.

Result of non - prosecution of partition action. 659. No partition action shall abate by reason of the non-prosecution thereof, but, if a partition action is not prosecuted with reasonable diligence after the Court has endeavoured to compel the parties to bring the action to a termination, the Court may dismiss the action:

Provided, however, that in a case where a plaintiff fails or neglects to prosecute a partition action, the Court may, by order, permit any defendant to prosecute that action and may substitute him as plaintiff for the purpose and may make such order as to costs as the Court may deem fit.

Penalty for dishonest non-disclosure of interested persons. 660.
(1) Every party to a partition action who, knowing that any person has any interest in the land to which such action relates, fraudulently or dishonestly fails or omits to disclose in the pleading filed by him the fact that such person has such interest or that such person is a necessary party to such action, shall be guilty of an offence and shall, on conviction after ferial before a Magistrate, be liable to a fine not exceeding one thousand five hundred rupees, or to imprisonment for a period not exceeding eighteen months, or to both such fine and imprisonment.

(2) No prosecution for an offence under subsection (1) shall be entertained without the sanction of the Attorney General.

(3) A person guilty of an offence under subsection (1) shall also, by reason of his fraudulent or dishonest failure or omission mentioned in that subsection, be guilty of a contempt of the Court in which the partition action referred to in that subsection has been instituted and may be punished for such contempt in accordance with the provisions of this Chapter.

Penalty for false return & c. by surveyor. 661.
(1) Whoever, being a person to whom a commission for the survey, partition or sale of any land has been issued, makes any statement which he knows or has reasonable cause to believe to be false in the return made by him to such commission, or inserts in the survey plan or in the plan of partition prepared by him or in his field notes any signs, marks or particulars which he knows or has reasonable cause to believe to be false shall be guilty of an offence and shall, oil conviction after trial before a Magistrate, be liable to a fine not exceeding one thousand five hundred rupees, or to imprisonment for a period not exceeding eighteen months or to both such fine and imprisonment.

(2) A person guilty of an offence under subsection (1) shall also, by reason of his false return, survey plan, plan of partition, or field notes, be guilty of a contempt of the Court which issued the commission referred to in that subsection and may be punished for such contempt in accordance with the provisions of this Chapter.

Exemption from stamp duty. 662.
(1) All pleadings and processes and all documents filed or produced in a partition action under this Chapter shall be exempt from stamp duty

(2) All partition deeds shall be exempt from stamp duty.

(3) Nothing herein contained shall affect the proviso to paragraph (b) of the Exemptions under the heading " F-Miscellaneous " in Part II of Schedule A to the Stamp Ordinance.

Dismissal of partition action. 663.
(1) The dismissal of a partition action in respect of any land under section 634, section 636, subsection (6) or subsection (9) of section 657, or section 659 shall not operate as a bar to the institution of another partition action in respect of that land

(2) The dismissal of a partition action under section 634, subsection (6) or subsection (9) of section 657, or section 659, shall not affect the final and conclusive effect given by section 651 to the decree entered in such action as against persons who have been parties to such action and their privies.

GENERAL PROVISIONS

Contempt of Court 664.
(1) Subject to the provisions of this Chapter, every; Court shall have full power and authority to punish as for contempt of Court every person who-
(a) fails to comply with any order for discovery or inspection of documents;

(b) fails to comply with the terms of a summons served on him to give evidence or produce any document;

(c) fails to appear in Court in compliance with any notice or direction issued or given by Court directing him to appear or requiring him to produce any document in Court;

(d) being present in Court, refuses to give evidence or produce any document then in his custody;

(e) commits waste upon any property sold or ordered to be sold in execution of a decree;

(f) makes a false statement of fact in any affidavit relating to the execution or service of any process;

(g)in any proceeding, makes a false statement of fact, or suppresses or conceals any material fact, either in oral testimony or in an affidavit;

(h) disobeys any injunction;

(i) fails to attend upon any citation served on him;

(j) being a citee, disobeys any decree requiring him to deliver money or possession of other property;

(k) being a medical practitioner, issues a medical certificate without sufficient grounds for issuing such certificate and with intent to delay or binder the administration of justice;

(l) with intent to delay or hinder the administration of justice, makes use of a medical certificate referred to in paragraph

(k) or unlawfully makes use of any medical certificate;

(m) being a registered attorney-
(i) upon whom an order against any party for discovery, production or inspection, is served, wilfully neglects or omits to give notice thereof to his client, or

(ii) fails to pay the expenses in deposit with him to a person summoned to appear as a witness;

(n) wilfully disobeys any order of Court or wilfully obstructs the execution thereof; or

(o) is declared by this Chapter to be guilty of or be deemed guilty of, or liable to be punished as for the offence of, contempt of Court.

(2) Nothing in the preceding subsection shall be deemed to limit, modify, or otherwise affect the powers vested in, or conferred upon, any Court under any other law to punish any act, conduct, neglect, refusal or disobedience as a contempt.

Summary procedure in respect of contempts of Court. 665.
(1) The summary procedure to be followed for the exercise of the special jurisdiction to take cognizance of and to punish summarily offences of contempt of Court and offences declared by this Chapter to be punishable as contempts of Courts shall be that which is prescribed in this section.

(2) The Court shall issue a summons to the accused person which shall state shortly the nature of the alleged offence and the information or grounds upon which the summons is issued, and shall require the accused person to appear before the Court on a day named in the summons to answer the charge.

(3) It shall be competent to the Court simultaneously with issuing such summons, or at any time after such summons has been issued, if it has reason to believe that the attendance of the accused person at the time appointed in the summons to answer the charge cannot otherwise be secured, to issue a warrant for his arrest, which shall recite the issuing of summons, and the day appointed therein for the hearing of the charge, and shall direct that the accused person after arrest be kept in custody until that day, and be then brought before the Court to answer the charge in the summons: Provided that the person arrested shall at any time after arrest be released from custody in the manner prescribed in subsection (2) of section 103 of Chapter II of this Law.

(4) Where the information upon which the charge is based is furnished to the Court, either wholly or in part, by the personal observation of the Judge of the accused person's behaviour and language in his presence, the Judge shall at the same time record a minute of the facts so observed by him, which shall be admissible as evidence at the hearing of the charge. In such case no summons shall be necessary, but the accused person may be forthwith committed to jail or, admitted to bail and all further steps shall be taken in manner herein provided, as. though such summons or summons and warrant as aforesaid had been issued. The Court shall commence the hearing by asking the accused person whether or not he admits the truth of the charge; and if he does not admit the truth of the charge, the Court shall proceed to take evidence (if any) which may be necessary in addition to the Court minute to establish the charge; and also to take the accused person's statement and any evidence which he may offer in answer to the charge.

(5) If the accused person admits the charge, or if after taking the evidence on both sides and considering the Court minute and hearing the accused person's explanation, the Court finds the accused person guilty of the charge, it shall record its verdict and pass sentence according to law.

(6) If the Court finds the accused person not guilty, it shrill record its verdict accordingly and acquit the accused person.

Certified copy of proceeding. 666.
(1) A copy of the proceedings in any action or any part thereof duly certified by an officer of Court specially authorized in that behalf, hereafter called the certifying officer, shall be issued to any person making application therefor.

(2) The copy for such certification shall be prepared by (a) the officers of Court, or (b) the party applying for such copy or copies.

(3) Prior to certification, the copy shall be examined and compared with the original by the certifying officer.

(4) The applicant for such copy shall-
(a) furnish the necessary stamp for such certificate and

(b) pay-
(i) the fee for preparing the copy where such copy is prepared by the officers of Court, and

(ii) the fee for examining, comparing and certifying such copy.

(5) The fees payable under this section shall from time to time be fixed by the Minister by regulation, either at a rate applicable to all the Courts in common or at varying rates in respect of the several Courts. The Minister shall also be entitled to prescribe by regulation the manner of appropriation and allocation of the fees so paid.

(6) Where an application is made at the same time for copies of distinct parts of the proceedings of an action to be certified as a single copy, the several parts shall be so certified and only one stamp fed shall be recoverable thereon.

Certified copies of statements or complants made to, or of plans or sketches prepared by, police officers on inquirers. 667.
(1) Where a party to an action requires for the purposes of such action a certified copy of any complaint or statement made to a police officer or an inquirer, whether in the course of any investigation or otherwise, or of any plan or sketch prepared by a police officer or an inquirer on information furnished by any person or persons, such party shall, upon the payment to the appropriate authority of such fee as may be prescribed, be entitled to obtain a certified copy of such complaint, statement, plan or sketch, as the case may be.

(2) In this section,

" appropriate authority "-
(a) in relation to any information or statement recorded in an Information Book kept by an officer in charge of a police station, means such officer;

(b) in relation to any plan or sketch prepared by a police officer attached to a police station, means the officer in charge of that police station; and

(c) in relation to any information or statement recorded in an Information Book kept by an inquirer for any area or any plan or sketch prepared by an inquirer for any area, means the inquirer for such area;

inquirer " and " police officer " have the same meaning as in Chapter II of this Law.

Service of foreign process. 668.
(1) Where in any civil or commercial matter pending before a Court or Tribunal of a foreign country a letter of request from such Court or Tribunal for service on any person in Sri Lanka of any legal document in such matter is transmitted to the Supreme Court by the Secretary to the Ministry in charge of the subject of Justice (in this section re ferried to as " the Secretary ") or otherwise, with an intimation that it is desirable that effect should be given to the same, the following procedure shall be adopted:
(i) The letter of request for service shall be accompanied by a translation thereof in the Sinhala language, and by two copies of the legal document to be served, and two copies thereof in the Sinhala language.

(ii) Service of the legal document shall, unless the Supreme Court otherwise directs, be effected in the manner prescribed for the personal service of summons.

(iii) After service has been effected, the person by whom such service has been effected shall return to the Registrar one copy of the legal document together with the evidence of service by affidavit.

(iv) The particulars of charges for the cost of effecting service shall be submitted to the Registrar who shall certify the amount properly payable in respect thereof. A copy of such charges certified as aforesaid shall be forwarded to the Secretary, together with the documents specified in the paragraph next following.

(v) The Registrar shall forward to the Secretary the letter of request for service received from the foreign country, together with the evidence of service, with a certificate appended thereto duly sealed with the seal of the Supreme Court.

(2) Where in any civil or commercial matter before a Court or Tribunal in any foreign country with which a Convention on that behalf has been or shall be applied to Sri Lanka, a request for service of any legal document on a person in Sri Lanka is received by the Secretary from the Consular or other authority of such country and transmitted by him to the Supreme Court, the following provisions shall, subject to any special provision contained in the Convention, be adopted: -
(i) The service shall be effected by the delivery of the original or a copy of the legal documents, as indicated in the request, and the copy of the translation, to the party or person in the manner prescribed for the personal service of summons.

(ii) The particulars of charges for the cost of effecting service shall be submitted to the Registrar who shall certify the amount properly payable in respect thereof.

(iii) The Registrar shall transmit to the Secretary a certificate under the seal of the Supreme Court establishing the fact and the date of the service in person, or indicating the reasons for which it has not been possible to effect it, and at the same time shall notify the Secretary the charges certified under paragraph (ii).

Court may send matter for investigation. 669. Where in a case pending before any Court there appears to the Court sufficient ground for investigating into any offence under section 190, section 193, section 196, section 197, section 202, section 203, section 204, section 205, section 206, section 207, section 452, section 459, section 462, section 483 section 464 or section 466 of the Penal Code, the Court may forward the evidence and documents relevant to the offence to the Director of Public Prosecutions and may take such steps as it may consider necessary for securing the presence in Court, if and when required to do so, of the suspected person and of any others. Inherent powers of Court.

Inherent powers of Court. 670. Nothing in this Chapter shall be deemed to limit or otherwise affect the inherent power of Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

Casus ommissus. 671. If any matter of procedure or practice for which no provision is made by this Chapter or by any law for the time being in force shall arise before any Court, such Court shall thereupon make application to the Supreme Court for, and the Supreme Court shall, and is hereby required to give by Rules of Court, such Special orders and directions thereupon as the justice of the case shall require.

Savings 672. In the absence of any specific provision to the contrary, nothing in this Chapter shall be held in any way to limit, modify, or otherwise affect any special rules of procedure which, under or by virtue of the provisions of any other law, may from time to time have been, or be, laid down, to be followed by any Court, in the conduct of any action, matter or thing, of which any such Court can lawfully take cognizance. Fending actions.

Pending actions. 673. Every action, application or other matter already instituted and pending in any Court on the appointed date shall, so far as circumstances permit, be continued and proceeded with to final judgment and Execution under the provisions of this Chapter in the same manner in every respect as if the same had been originally instituted after the coming into operation of this Chapter.

Interpretation. 674. In this Chapter, unless the context otherwise requires-
Attorney-General (1)" Attorney-General " includes the Solicitor-General, any Deputy Solicitor-General, Senior State Counsel and State Counsel specially authorized by the Attorney-General to represent the Attorney-General;

Cause of action. (2) " cause of action " is the wrong for the prevention or redress of which an action may be brought, and includes the denial of a right, the refusal to fulfil an obligation, the neglect to perform a duty, and the infliction of an affirmative injury;

Court. (3) " Court " means a Judge empowered by law to act judicially alone, or a body of Judges empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially;

Decree.. (4) " decree " means the formal expression of adjudication upon any right claimed or defence set up in any action, when such adjudication decides the action and includes an order rejecting a plaint;

Foreign Court. (5) " foreign Court " means a Court situated beyond the limits of, and not having authority in, Sri Lanka; Foreign

Foreign judgment. (6) " foreign judgment " means the judgment of a foreign Court;

Judge. (7) " Judge " means the presiding officer of a Court, and includes Judges of the Supreme Court, High Court Judges, District Judges and Magistrates;

Judgment. (8) " judgment " means an order which finally decides the matter in issue, and includes a " decree nisi " in a matrimonial action, and " interlocutory decree " and " final decree " in a partition action;

Judgment-creditor. (9) " judgment-creditor " " decree-holder " or " writ-holder " means the person in whose favour a decree or order capable of execution is entered or made, and includes any person entitled by transfer, operation of law or Otherwise, to execute or enforce a decree or order or to have a decree or order executed or enforced;

Judgment debtor. (10) " judgment-debtor " or " debtor " means the person against whom a decree or order capable of execution is entered or made, and includes any person against whom, by reason of operation of law or otherwise, a decree or order may be executed or enforced or is directed to be executed or enforced;

Legal document. (11) " legal document " includes all processes, pleadings, petitions, affidavits, notices, motions and other documents, proceedings and written communications;

Legal representative. (12)" legal representative " means an executor or administrator, or, in the case of an estate below the value of twenty thousand rupees I which has not been administered, the intestate heirs of the deceased;

Matrimonial action. (13) matrimonial action" includes action for divorce a vinculo matrimonii or for separation a mensa et thoro or for declaration of I nullity of marriage;

Order. (14)' order " means the formal expression of any decision in any action, proceeding or matter which is not a judgment;

Original Court. (15) " original Court " means a High Court, District Court or Magistrate's Court;

Police officer. (16) police officer " has the same meaning as in Chapter II of this Law;

Prescribed. (17)" prescribed " means prescribed by the Minister by Order published in the Gazette.

Process. (18)" process " includes all writs, warrants, mandates, precepts, summons, notices, rules, orders and citations issued by Court;

Recognized agent. (19)" recognized agent " means any of the persons designated or deemed to be designated as such under this Chapter, and no others;

Registrar. (20) " Registrar " in relation to a Court includes an Additional or Deputy Registrar;

State officer. (21) " State officer " includes all officers or servants employed by or under the Government of Sri Lanka;

Written writing. (22) " written " and " writing" include " printed " and " print " and " lithographed " and " lithograph ", respectively.