( 289 )
Present: Wood Benton C.J. and Ennis, Shaw, and De Sampayo JJ.
IBRAHIM BBEBEE et al.
359 and 360—D. C. Colombo, 35,439.
Necessary parties not made . respondents to an appeal—Notice of appealnot given to parties made respondents—Security for costs wherethere are severalrespondents—Secretaryof Court appointed
Commissioner for sale in partitioncases—Practicecondemned—
Application for revision of a final decree in partition suit by thirdparty claiming ashare—Final decreenot signed^—Intervention
after date of order.
[PerFullBench.]—Itis necessary, fortheproper constitution
of an appeal, that all parties to an action who may be prejudiciallyaffectedbythe result ofthe appealshouldbemade parties, and.
unless they are, the petition of appeal should be rejected.
Notice of the appeal must be given to the respondents.
An appeal defective owing to nonjoinder of necessary respondentscan be remedied in a proper case by an. order of Court undersection770of the CivilProcedureCode,directing those parties
to be added or noticed.
Per Shaw J.—Such orderwould seemto beentirelydiscretionary,
and I should not myself be disposed to amend the proceedingswhentheappealisactuallybefore the Courtforhearing, unless
somegoodexcusewasgivenfor the nonjoinderor notice,or unless
it wasnotvery apparentthat thepartiesnotjoined might be
affected by the appeal.
Where the appellant ina partitioncase furnishedsecurity for
the costs of appeal of only the plaintiff'respondent, whose interestswere not in conflict with those of the first defendant-respondent,held, that the provision of the Codeas togivingsecurity was
Per WoodBenton C.J. andDe SampayoJ.—The Supreme
Courthasno powerto setaside the final decreein apartition
suit acting in revision, onthe groundthat apersonwho had a
share in the land was not made a party to the partition proceed-ings and was thus deprived of his share.
If a Judge intentionally defers signing a final decree in a partitionsuit pendingthe satisfaction ofsome furtherrequisition, there
would be no decree, and in the meantime an intervention is possible.Butwheretheinvestigationis complete andtheJudgeintended
to sign the decree at once, but only omitted to, do so by inadvert-ence, intervention cannot be allowed thereafter. In such circum-stances as these the signing of the decree is a ministerial act, whichmay be done at any time, and the decree when signed will beoperative as from the date of the judgment.
( 290 )
PPEAL from judgment of the Acting Additional DistrictJudge of Colombo (W. Wadsworth, Esq.)
The facts are set out in judgment of Ennis J. as follows: —
This is a partition action. According to the plaint, the seconddefendant bought the property in 1889 and sold it in 1902 to A. L.Abdul Hamid, who sold it in 1906 to the first defendant, who, in1912, sold an undivided one-fourth share to the plaintiff. It is assert-ed that the Court decreed a sale of the property, allotting one-fourthto the plaintiff and three-fourths to the first defendant. The addedparties, twenty-four in number, intervened before the sale, and theCourt ordered a stay of the sale pending the hearing of this claim.On the day fixed for the hearing (July 26, 1916) the Ctfurt (presidedover by another Judge) held that a decree for sale had been made,and that it had no power to vacate it; it accordingly refused toinquire into the claims of the added parties. There are two appealsfrom this order. The fifth and sixth added defendants appeal inNo. 359, and have made the plaintiff only respondent to the appeal.The first, second, third, and fourth added defendants appeal inNo. 360, and have made the plaintiff, the first and second defendants,and the remaining added defendants (or most of them) respondentsto the appeal, but they have given security only for the plaintiff’scosts and have not served notice of the appeal on the otherrespondents.
On the appeal coming up for hearing, Mr. A. St. Y. Jayawardene,counsel for the respondents in both appeals, took the preliminaryobjection that the appeals were not properly constituted, in that inNo. 359 the first defendant, a person interested in the result of theappeal, had not been made a party, and in No. 360 the first defendanthad not been given notice of the appeal, and no security for hiscosts had been given.
The ease was referred to a Bench of four Judges for considerationof the preliminary objection.
Bawa, K.C., and Bartholomeusz, for appellants in No. 359.
F. M. de Saram, for appellants in No. 360
A. St. V. Jayawardene and F. de Zoysa, for respondents in bothappeals.
Cur. adv. vult.
December 8, 1916. Wood Renton C.J.—
I referred these appeals, under the provisions of section 54a ofthe Courts Ordinance, 1889,1 to a Bench of four Judges, for theconsideration of a preliminary objection taken to the hearing ofeach of them.
The plaintiff brought this action against the first and seconddefendants for the partition of certain property, allotting a fourth
i Ho. 1 of 1889.
( 291 )
share to himself and a three-fourths share to the first defendant,who had purchased the property from a vendee of the second. WoodThe Court ordered a sale instead of a partition, and, in accordance B®a9TOKwith a practice, of which we have recently expressed strong dis- Ibrahimapproval, and which, it is to be hoped, will now be abandoned by v- BeebesCourts of first instance, the Secretary of the District Court wasappointed Commissioner to carry out the sale. By inadvertence,however, the decree for sale was not signed by the District Judge.
Before the date fixed for the sale the added defendants obtainedleave to intervene, and the Court stayed the sale pending thedetermination of their claim. That order was dated as far back.*s April, 1913, and it was not appealed from. The added defendantsprepared for trial, but the present Additional District Judge declinedto proceed with the inquiry, on the ground that the District Judgewho made the order of April, 1913, had no power to allow theintervention after he had decreed a sale. The fifth and sixth addeddefendants in case No. 359, and the first, second, third, and fourthadded defendants in case No. 360, appeal. The former have not madethe first defendant a respondent to their appeal. The latter madehim a respondent to the appeal, but did not serve notice of the appealupon him, or furnish separate security for his costs. It is urgedthat these are fatal irregularities, and that both appeals should bedismissed.
In case No. 359 the first defendant was, in my opinion, a necessaryparty to the appeal, as the share allotted to him in the plaint mightbe prejudicially affected by the result of the inquiry into the inter-venients' claims. But the question remains whether, as a matterof discretion, we ought not to allow his name to be added undersection 770 of the Civil Procedure Code. I have no doubt as tothe power of the Supreme Court to dismiss an appeal, on the groundthat it has not been properly constituted by the necessary partiesbeing made respondents to it, and I am equally clear that thatpower should be exercised, unless the defect is .not one of an obviouscharacter, which could not reasonably have been foreseen andavoided. I agree entirely with the observations of my BrotherShaw on those points. But in the present case I am prepared toact under section 770, in view of the absence of any appeal fromthe order allowing the intervention, and of the possibility that thenecessity of the first defendant being made a party respondent tothis appeal may have been overlooked, inasmuch as the onlyquestion immediately involved was whether or not the inquiryshould proceed.
Similar considerations apply to the failure of the first, second,third, and fourth added defendants to give notice of the appeal tothe first defendant in case No. 360. That defect is equally curableunder section 770 of the Civil Procedure Code. The appellantsfurnished security for the costs of appeal of the plaintiff-respondent,
( 292 )
■ Ibrahimv. Beebee
whose interests are not in conflict with those of the first defendant,and that is enough. We have already given formal judgmentdirecting, in case No. 359, that the first defendant be made a respond-ent to the appeal, and-have notice of that order served upon him;and, in case No. 360, that notice of the appeal be served upon thefirst defendant.
[His Lordship set out the facts and continued: —]
The case was referred to a Bench of four Judges to enunciate,if possible, the principle by which the Appeal Court should be guidedin dealing with objections to the constitution of an appeal. In myopinion three courses are open to the Court. It may (1) proceedto hear the appeal as it stands, or (2) add, and give notice to, partiesunder the provisions of section 770 of the Civil Procedure Code, or(3) dismiss the appeal for defect of parties.
The Full Court case of Dias v. Arnolis1 decided that the AppealCourt could act under section 770 of the Civil Procedure Code, andthat it was a question for the decision of a Judge who heard theappeal whether or not a respondent ought to be added in anyparticular case. In the Indian case, Sohna v. Khalak Singh andanother,* it was held that the power to add parties should be exercisedwhenever the necessity is made apparent. In the case of Appu-hartvy v. Natchie,1 2 3 Perera v. ~N onohamy A and Fernando v. Fernando 5the Supreme Court dismissed the appeals, and in the Indian caseof Bejoy Gopal v. Umesh Chandra 6 an appeal was held to have beenrightly dismissed, for defect of parties. Which of the three coursesthe Court will follow will depend on the circumstances of theparticular case, and, as stated in Dias v. Arnolis,1 is a matter for thedecision of the Judge who hears the appeal.
As regards the appeal No. 360, it has been the practice in parti-tion actions to allow one set of costs only where the title is derivedfrom the same source, and the interest of the claimants are more orless identical. In such a case the provisions of section 756 of theCivil Procedure Code, with regard to giving security for costs, wouldbe complied with by security for one set of costs being given. Anyother course would unnecessarily swell the expense of a partitionaction—an expense which in most cases is very heavy.
For these reasons I agree with the order proposed by my Lordthe Chief Justice.
De Sampayo J.—
I agree, and have nothing to add.
1(1913) 17 N. L. R. 200.
213 All. 78.
33 Bal. Notes of Cases 67.
3 Bal. Notes of Cases 69.
3 Bal. Notes of Cases 70.
6 Cal. W. Notes 196.
( 293 )
A preliminary objection to tbe hoaxing of these appeals was takenon behalf of the respondents, and has been referred for hearing to aCourt of four Judges under the provisions of section 54a of theCourts Ordinance, 1889.
The objection to the first appeal is that a necessary party to theappeal has not been made a respondent; and that to the secondappeal is that a necessary party to the appeal, although made afdspondent, has not been noticed, or furnished with security for hisjoosts.
. I feel no doubt that, under the provisions of chapter liVIIl. of the0ivil Procedure Code, it is necessary, for the proper constitution of£n appeal, that all parties to an action who may be prejudiciallyaffected by the result of the appeal should be made parties, and that,Unless jthey are, the petition of appeal should be rejected.
It seems equally clear to me that notice must be .given to theRespondents, for it is useless making them respondents unless theysure notified of the fact. An appeal, defective owing to non-joinderof nebessary respondents, can be remedied, in a proper case, by anorder of the Court under section 770 directing those parties to be. added or noticed. Such order would seem to be entirely discretion-.• ary, and I should not myself be disposed to amend the proceedingswhen the appeal is actually before the Court for hearing, unlesssome good excuse was given for the non-joinder or notice, or unlessit was not very apparent that the parties not joined might beaffected by the appeal.
In the present case I think that it was not very obvious that thefirst * defendant might be affected by the result of the appeal, andagree that the defect should be remedied under section 770.
Present: Wood Renton C.J. and De Sampayo J.
, The appeals were subsequently argued on the merits before WoodRenton C.J. and De Sampayo J, and the following judgmentswere delivered:—
Wood Renton C.J.—
These appeals have already, been before us on a preliminaryobjection, which was argued before, and was ultimately over-ruledby, a Bench consisting of all the Judges of the Supreme Court.They now come on for hearing on the merits. The circumstancesdisclose a case' of great hardship to the appellants. The plaintiffbrought this action for the partition of a certain property situatedin Colombo street, Kandy. On January 27, 1913, the DistrictJudge ordered a sale instead of a partition. A formal decree wasdrawn up in pursuance of this order, but, no doubt through24-
( 394 )
in advert ance, it was never signed by the District Judge. In terms,however, of thic unsigned decree, a commission was, on February 4,1918, issued to the Secretary of the District Court to sell the property.The. commission was made returnable. on May 5, 1913. The con-ditions of sale were submitted to the District Court on February 19.The sale was fixed for April 14. On April 9, however, the firstadded defendant moved for leave to intervene in the action, andfor a stay of the sale pending the hearing and determination of herclaim. After notice to the plaintiff and the defendants, who showedcause against the application for intervention„ the Court, on April21, 1913, allowed the first added defendant to intervene, and madean order staying the sale pending the inquiry. Oh the same dateother parties were also allowed to make their statements of claims.The plaintiff did not appeal against the order of April 21 allowingthe intervention. In due course the first added defendant and theother added defendants filed their statements' of claim* On May 21the plaintiff was ordered to take steps to add to the proceedingsfresh parties, whose names were disclosed in the statements of ctaimof the added defendants. In pursuance of this order notice wasissued, on the plaintiff’s motion, on eighteen individuals to showcause why they should not be made added defendants in the case.Some of these parties filed answer; some disclaimed, title altogether;others agreed to abide by the answer filed by the first defendant.The case was ultimately fixed for trial on February 2, 1916, andafter various postponements came on for hearing on July 26, 1916.The plaintiff’s counsel then, for the first time, argued that the orderfor sale was a conclusive and binding order in view of the provisionsof section 4 of the Partition Ordinance, 1863,1 and that the order ofApril 21, 1913, allowing the intervention was ultra vires the DistrictCourt. The learned Additional District Judge, Mr. Wadsworth,with great reluctance gave effect to this objection, and held thathe had no power to inquire into claims of any of the intervenients.The intervenients appeal.
In my opinion this decision is correct. Two points were pressedupon us on the intervenients* behalf, in the .first place, that, as thedecree for sale was never signed by the District Judge, it was not a“ decree ” at all within the meaning of section 4 of the PartitionOrdinance;1 and, in the second place, that, if not the District Court,the Supreme Court, acting in revision, has full power to set thedecree, if it was a decree, for sale aside, and that this power shouldbe exercised in the present case in view of the plaintiff's acquiescenein the order allowing the intervention.
I should be glad, if it were possible to do so, to give the presentappellants relief- But there is clear authority that in ordinaryactions the entering up of a decree is purely a ministerial act
* No. 10 of 1863.
( 295 )
(Emalishamy v. Ego Appu1), and that an applioatidn for the amend- 1916.ment of a clerical error in a decree may be made at – any time Wood(Natohia v. Natchia2). There does not appear to me to be any good BbhtonCJ.J.reason why the principle of these decisions should not be applied to Ibrahimpartition suits. It is unnecessary to go through the older decisions v. Beebeewith regard to the question whether, where a sale of property heldin common instead of its partition is directed, the order to whichsection 9 of the Partition Ordinance, 1868,3 gives conclusive effectif the decree or the certificate of sale. The case of Bandara v. Baba*has conclusively decided that it is the former. I do not propose todiscuss the abstract issue whether, in spite of section.9 of the PartitionOrdinance, 1868,3 the Supreme Court has or has not power tointerfere with decrees in partition actions in revision. It clearly isempowered to set aside in an appeal by any party to such an action,or in revision on the application of such a party, any final decreefor partition or decree for sale. But I do not think that the SupremeCourt ought to exercise its powers of revision at the instance oflitigants who, as is the case with the present intervenient, werenot parties to the action at all when the order for sale wasmade. To do so would be to deprive the decree for sale of theconclusive and binding effect assigned to it by section 9 of thePartition Ordinance, 1863.3 The District Judge by whom theorder for sale was made is still in the judicial service of the Colony.
I would direct the decree of January 27, 1913, to be entered upnunc pro tunc by him as of that date, and with this modificationI would dismiss the appeals with costs.
The circumstances of these cases show, however, once again theurgent need for a drastic reconsideration by the Legislature of theprovisions of the Partition Ordinance, 1863.3 Fresh safeguardsfor giving adequate publicity to partition proceedings should becreated, and an interlocutory as well as a final decree for sale mightwith advantage bet provided for.
De Sampat T.—
I am oi one same opinion. It has, after some difference of judicialopinion on the subject, been finally decided in Bandara v. Baba*by a Full Bench, that in the case of a sale under the PartitionOrdinance3 the final and conclusive decree ^ is the decree for saleentered under section 4 of the Ordinance. Consequently in thiscase the appellants came in too late, if there was a recognizabledecree made on January 27, 1913. Mr. Bawa, for the appellants,contends that there was no such decree, inasmuch as the form ofdecree, drawn up after the judgment was pronounced, had not beensigned by the District Judge. On the assumption- that the unsigneddecree was no decree, Mr. A. St. V. Jayawardene, for the respondents,
i (1903) 7 N. L. B. 38.3 No. 10 of 1863.
» (1912) 15 N. L. R. 319.4 (1916) 19 N. L. R. 1.
( 296 )
191®. contends, on the other hand, that the judgment itself embodies aDb Sampavo sufficiently formal decree, and cites my judgment in Perera v.
J.Fernando. 1 I adhere to the opinion therein expressed that it is
Ibrahim not essential for the purposes of a decree that it should be enteredv. Beebee jn a separate paper, and that it is sufficient if the judgment itselfcontains a definite order adjudicating upon the right claimed andgranted the relief intended. But that principle can hardly beapplied to this case. The part of the judgment depended on is asfollows: —
14 Let a decree be entered for the sale of the property and for thedistribution of the proceeds realized between the plaintiff and thefirst defendant in the shares specified above. The • costs will beborne by the parties pro rata.”
The difficulty in regarding this as a sufficient decree in a partitionsuit is that neither in that nor in any Other part of the judgment isthe corpus or the subject-matter of the suit described or ascertained, -and this is essential in a decree for partition or sale. I think,therefore, that the question whether there is a decree in this casemust be determined on other considerations. I may say at oncethat, if the form of decree was not signed by the. District. Judgebecause he had intentionally deferred signing it pending the satis-faction of some further requisite, there would, in my opinion, havebeen no decree, and in the meantime an intervention was possible.But where, as here, the investigation was complete, and the DistrictJudge intended to sign the decree at once, but only omitted to doso by inadvertence, it is impossible to say that any interventioncould be allowed thereafter. In such circumstances as these thesigning of the decree is a ministerial act, which may be done at anytime, and the decree when signed will be operative as from the dateof the judgment. That the District Judge not only intended tosign the decree at the time, but believed th&t he had done so,1 isapparent from the -fact that in the commission issued to the personappointed to carry out the sale the decree is recited, and that theconditions of sale were settled and all other things done on thebasis of the decree. I think, therefore, that the existence of & decreemust be postulated, and that the technical ground on which theappellants seek to justify their intervention cannot be sustained.The signature of the Judge may even now be affixed as suggested 'by my Lord the Chief Justice.
Mr. Bawa, however, pressed the appeal on the ground that,since the District Judge, as a matter of fact, allowed the intervention,and all the parties acted on the footing that the decree had beenopened up, it was not open for the plaintiff at the last moment, whenthe case came on fcr trial afresh, to take any objection to theintervention. I confess that there is' some inconsistency in the
i (1914) 17 N. L. it. 300.
( 297 )
District* Judge’s order on the appellants’ application for intervention.He* did not definitely vacate the decree, but simply ordered theappellants to file their claims and stayed the sale. If he intendedto vacate the decree, he should distinctly have said so, and haverecalled the commission altogether, and not merely suspended itsexecution; and I think there is good reason for the construction,placed upon the order by the Acting District Judge, before whomthe case last came, to the effect that when the intervention whsallowed, the District Judge meant to postpone the question of itslegality for consideration at the trial which was to take place on theclaims made. In any event the respondents, though they might, asin all other cases, waive any right which was vested in them, couldnot by any act or omission give to the Court a power to vacate itsown decree which it had not under the law, nor could they of theirown will set aside the provisions of the Ordinance, which has alarger object in view than the mere interests of private persons.I think that the Court, apart from any objection raised by therespondents, was bound to take note of the imperative nature ofthe provisions of the Ordinance and to recognize its own limitationsthereunder.
The last point urged on behalf of the appellants is that we shouldset aside the decree, in exercise of our powers of revision. I do notthink that we can or ought to do so. Even if the remedy by wayof revision is available to a person who has not been a party to theaction, this Court, as much as the District Court, is precluded fromsetting side in that manner the final decree in a partition suit on thegrounds put forward in this case. In a series of cases, of which Ineed only mention Nono Hamy v. De Silva,1 it has been held that,even where a person having an interest in the property has beenexcluded by fraudulent collusion between the parties, the decreeso obtained cannot be set aside, and that his remedy is an actionfor damages under the proviso to section 9 of the Ordinance. Thecase just referred to was an independent action brought, to set asidethe decree in the partition suit, but the ratio decidendi applies to anyother form of legal proceeding. Similarly, and for the same reason,restitutio in integrum has been held not to be available t.o a partyaggrieved (Babiin Appu v. Siman Appu 2). Mr. Bawa, however, citedthe unreported case, 3—D. C. Kalutara, 1,782,3 where Lawiie andWithers JJ. acting in revision set aside a decree for sale -on the appealof a person who had unsuccessfully applied to intervene after thedecree but before the actual sale. But as to that case two remarkshave to be made. It appears that the decree had been entered of con-sent, and not as the result of an investigation into title. It may wellbe considered that the decree, not being in accordance with the require-ments of the Ordinance, was not, in-fact, a binding decree, and was
* (1891) 9 S. C. C. 199.2 (1907) U N. L. R. 44.
3 S. C. Min., Jan. 27, 1898.
( 298 )
*2*0* liable to be revised when the 'true facts were disclosed. Moreover,Da Sahfayo the decision of the learned Judges was given at a time when judicialJ< opinion was that, in the case of a sale under the Partition Ordinance,IbraMm the binding deoree was not the decree for sale under section 4, butv. Beebes the certificate of sale granted under section 8, and, sinoe Bandara v.
Baba (supra), it is no longer an authority on the point under con-sideration. The same remarks applies to Bundaranaike v. Bandara-naike 1 and the case which it followed. To set aside a deoree inrevision, on the ground that a person who had a share in the land wasomitted' and was thus deprived of it, would be to allow what isexpressly prohibited by section 6. However large our powers ofrevision may be, they cannot be exercised in contravention of astatute. Mr. Bawa finally urged that this was an exceptionalcase, inasmuch as the appellants were deprived of the alternativeremedy of an action for damages by operation of prescription. Nodoubt the appellants had fixed their hopes on the order of theDistrict Judge allowing the intervention, and probably for thatreason abstained from bringing an action in time. The act of theCourt, however, cannot enlarge the rights of the appellants, nor canwe reoognize the fact for prescription having run out in deciding thepresent question of law. The dismissal, of this appeal may be hardfor the appellants, but such hardship, which undoubtedly occursunder the Ordinance in many a case, can only be provided against bylegislation.
IBRAHIM v. BEEBEE et al