4. Section 398 of the principal enactment is hereby repealed and the following section substituted therefor;
| 398. (1) If there be more defendants than tuition of legal represent one and any of them die before decree, and the right to sue on the cause of action does defendant not survive against the surviving defendant or defendants alone and also in case of the death of a sole defendant, or sole surviving defendant where the right to sue survives, the plaintiff may |
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| (2) Upon receipt of an application under paragraph (c) of subsection (1), the court may being satisfied that there are grounds therefor, enter the name of such representative on the record in the place of such defendant, and shall issue summons, (in the From No. 71 in the First Schedule) to such representative to appear on a day to be therein mentioned to defend the action, and the case shall thereupon proceed in the same manner as if such representative had originally been made defendant and had been a party to the former proceedings in the action: Provided however, that the person so made defendant may object that he is not the legal representative of the deceased defendant, or make any defence appropriate to his character as such representative, |
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| (3) Upon receipt of an application under paragraph (b) of subsection (1), the court may, where it is satisfied that probate of the will or letters of administration to the estate of the deceased defendant have not been issued or that its issue is likely to be unduly delayed, end after the issue of notice on the person alleged in such application to be the person to whom probate of the will or letters of administration to the estate of the deceased defendant would ordinarily be issued and such other persons if any, and after causing notice of such application, (in the form No, 71A in the First Schedule) to be advertised in a local newspaper to be selected by the court or by such other mode of advertisement in lieu of such publication as to the court seems sufficient, and after such inquiry as the court may consider necessary and upon such terms as it thinks fit, order, that the name of the person who appears to the court to be the person to whom probate of the will or letters of administration to the estate of the deceased defendant would ordinarily be issued, be entered in the record in place of the deceased defendant and the case shall thereupon proceed in the same manner as if such person had originally been made a defendant and had been a party to the former proceedings in that action: |
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| (4) Upon receipt of an application under paragraph (c) of subsection (I), the court being satisfied that there are grounds therefor, and, after the issue of notice on the representative named in such application and such other persons, if any, and after causing notice of such application (in the form No, 71A in the First Schedule) to be advertised in a local newspaper to be selected by the court or by such other made of advertisement in lieu of such publication as to the court seems sufficient, and after such inquiry as the court may consider necessary and upon such terms as it thinks fit, the court may order, that the name of such representative or such other person as the court may consider fit be entered of record in place of the deceased defendant and the case shall thereupon proceed in the same manner as if such person had originally been made a defendant, and had been a party to the former proceedings in the action: |
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| (5) The legal representative of a deceased defendant may apply to have himself made a defendant in place of a deceased defendant and the provisions of this section, so far as they are applicable, shall apply to the application and to the proceedings resulting from such an application. |
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| (6) Where after an order has been made under subsection (2) or subsection (3) of this section, an executor or administrator Is appointed in proceedings instituted under Chapter XXXVIII of this Code, such executor or administrator shall be substituted in place of the person appointed under subsection (2) or subsection (3), on the application by way of summary procedure supported by affidavit made by the plaintiff or any other party to the action or by such executor or administrator himself, and the action shall thereupon proceed in the same manner as if such executor or administrator had originally been made a defendant and had been a party to the former proceedings in the action, |
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Sri Lanka Consolidated Acts