NEW LAW REPORTS OF CEYLONVOLUME XXXV.1933Present; Dalton A.CJ. and Drieberg J.
KANNANGARA v. SILVA et at.
203—D. C. Matara, 5,093.
Partition—Decree entered without trial—No notice to parties—Application 6yperson, who is no party, to set aside the decree—Powers of DistrictCourt—Revision by Supreme Court.
Where a partition decree was entered without a trial and withoutnotice to the parties on the record, and an application was made by aperson who was no party to the action to set aside the decree and toallow him to intervene,—
Held, that the District Court had no power to vacate the decree.
The Supreme Court would in the exercise of its powers of revision setaside a decree entered under such circumstances and direct proceedingsto be taken de novo.
rPHIS was an appeal from an order of the District Judge of Matara,-*• refusing to set aside the decree entered in a partition action. Theappellant who was not a party to the action moved to set aside the decreeon the ground that it had been irregularly entered. He applied thathe should be allowed to intervene and to prove his claim to an interest inthe land.
N. E. Weerasooria, for appellant.—A Judge can vacate a final decreewhich is not as provided for in the Partition Ordinance. Any partyinterested in the land can move the Court to vacate final decree eventhough he was not a party to the action. Plaintiff when he got his decreedid not prove the title of the defendants. See section 4. Shares are leftunallotted. The Ordinance requires full investigation into title. (Goone-ratne v. Bishop of Colombo') A decree “not as hereinbefore provided,” isbad. (Siwanadian Chetty v. Talavasingham.’) Parties, for example, mayintervene after the preliminary decree up to the final decree. But thefinal decree must be as hereinbefore provided. Otherwise there is novalid final decree and parties may intervene even thereafter.
V. Perera, for fifth defendant, respondent.—The question is merelythis: Can a Court at the instance of a person who was no party to theaction vacate a final decree, whether regularly or irregularly entered. Adistinction must be drawn between cases where a person can allege thata partition decree in another action is not binding on him because it was
i 32 N. L. R. 337.2 28 N. L. R. &02.
2DALTON A.C.J.—Kantiangara v. Silva.
irregularly entered and cases where a person comes into the partitionaction, which has been concluded by the entry of a final decree to have that,decree vacated on the ground of irregularity. A Judge is functus officioafter he has passed the decree whether it is regular or irregular. Thedefault which makes a decree irregular is a default of the Court, i.e., afailure to observe some imperative provision of the Ordinance. Theeffect is not to enable parties to intervene thereafter but to avoid thebinding nature of the decree under section 9. (See 9 N. L. R. 237.)Where a partition decree is not as hereinbefore provided, a person whowas no party to it cannot ask that the decree is void, but only that itis not binding on him. A person who intervenes in the partition actionitself cannot ask that the decree be vacated as far as he is concerned.It must be vacated in toto. There is no procedure laid down in theOrdinance to show what is to happen if a decree is irregularly entered.The vacating of a decree, if possible, may go on indefinitely, time aftertime. A party affected by an irregular decree is not without a remedy.The principle of law is that a Judge cannot set aside his own order. Hecan however try an action to set it aside because he is given freshjurisdiction by the filing of the plaint
N. E. Weerasooria, in reply.
T. Olegasekeram (with him Mahroof), for eighth defendant, re-spondent.
July 4,1933. Dalton A.C.J.—
This appeal arises out of a partition action started in the year 1911,
C.^Matara, No. 5,098.
By his plaint of that year plaintiff sought to partition a land allottingone-sixth share to himself, one-sixth each to the second and third defend-ants and the remaining three-sixth to the third, fourth, and fifth defend-ants. The defendants were absent at the trial and the matter was heardex,parte. As a result interlocutory decree was entered on July 11, 1911,allotting the one-sixth share claimed to the plaintiff, and leaving theremaining five-sixth share unallotted. Commission was issued in June1912, to partition off this one-sixth share, but considerable difficultyseems to have arisen in respect of the service of notices. The originalplaintiff appears also to have died in 1912, and two others were substitutedin his place. Eventually on November 9, 1915, the Commissioner madea return of his cbmmission with a plan of partition and a scheme ofappraisement. Difficulties again arose with regard to the service ofnotices, and on April 16, 1916, the District Judge directed that thematter “lay by”. After a reasonable interval of time,'if no action wastaken by either party, of course the District Judge should of his ownmotion have directed that the action do abate, but he did not do so.
On July 5, 1929, after the case lay dormant for thirteen years, anapplication was made to the then District Judge by the fifth defendantin the action in somewhat extraordinary terms. He moved for a noticeon the plaintiffs to show cause why he should not be allowed to takefurther steps in the case “if the plaintiffs do not work up this case”.The terms of the motion are not intelligible, and, further, no explanation
DALTON A.CJ.—Kaimangara v. Silva.
is offered by the fifth defendant for his previous failure to take any partin the proceedings, but the District Judge nevertheless directed noticeto be given to the plaintiffs. He should, in my opinion, have refused theapplication altogether, if for no other reason (and there were other reasonsalso), on the ground that ever since the action was started in 1911, th$fifth defendant had never taken any interest or part in it. After such *lapse of time, difficulties arose in finding the plaintiffs who were stated tobe in Hatton. They could not be found but a notice for one of them isstated to have been affixed to the land. Eventually on December 6,1929, no plaintiffs being present, an order was made that the motion ofJuly 5 be allowed.
On January 9, 1930, the fifth defendant then filed a document purport-ing to be a statement of rights to the unallotted five-sixth of the land andhe moved that this five-sixth share be allotted to him and others in themanner set out in the statement, and that the interlocutory decree of1911 be amended. On the same day the then District Judge grantedthis application, without notice to anybody and without any inquiry asto or proof of the rights of the fifth defendant and the others as claimedin the statement filed. The interlocutory decree of July 11, 1911, wasthereupon amended by which the unallotted five-sixth share was, so itstates, reallotted as follows: one-sixth to first defendant, thirteen-eighty-fourth to third defendant, nineteenth-eighty-fourth to fifthdefendant, and three-fourteenth in equal shares to the seventh, eighth,and ninth defendants together. Even here an error seems to have beenmade since one-fourteenth of the five-sixth still appears to remain un-allotted. None of these parties, except the fifth defendant, seems to havetaken any part in these proceedings of July 5 or December 6, 1929, orJanuary 9, 1930. It is certainly amazing that such an order could. bemade by any court without inquiry, and no doubt emboldened by thesuccess of his application the fifth defendant made a further move. OnJanuary 28 he moved the Court by his proctor for a further amendmentof the interlocutory decree whereby he should be declared entitled totwo unallotted rooms, three boutiques, an embankment bordering theroad, and to a half share of all the plantations on the land. The motionmakes reference to a deed filed in another case, District Court No. 1,502,and states the fifth defendant is entitled to the boutiques under that deed.I refer to case No. 1,502 in more detail later. It is sufficient at this pointto say that by agreement in District Court No. 1,502, the land comprisingthe five-sixth share that fifth defendant now seeks to partition here wasexcluded from the partition in District Court No. 1,502. This motionwas allowed on the same day, January 28, again without notice to anyoneor with no attempt at any inquiry, and the interlocutory decree wasfurther amended accordingly, and all he asked for in his motion wasallotted to him.
Thereafter a commission for partition issued, and a further plan wasfiled on May 16, 1930. Notices were asked for by fifth defendant to beserved on the second and third plaintiffs at Galle and Kandy, respectively,and on the remaining defendants at Matara. On July 16 it was reported,according to the journal entries, that the second, sixth, seventh, ninth,and tenth defendants were dead, that the second and third plaintiffs,
DALTON A.C.J.—Kannangara v. Silva.
and third, fourth, and fifth defendants could not be found. The latterreference to the fifth defendant must be a mistake as he was the personasking for the notices to be served, and may be an error for the firstdefendant who is not otherwise mentioned. The only person on whomthe notice is stated to have been served is the eighth defendant. Evenhe, however, did not appear, and the District Judge thereupon made anorder that the unserved notices be affixed to the land. Some attemptseems to have been made to have representatives substituted for thedeceased seventh, ninth, and tenth defendants, but these representativesnever received any notice of the partition. The journal entry of Sept-ember 12, 1930, shows that the unserved notices as ordered on July 16had been affixed to the land. Fifth defendant alone was again presenton that day, and, in the absence of any objection to the partition decreeand appraisement, final decree was entered. This decree under theprovisions of section 9 of the Partition Ordinance is good and conclusiveagainst all persons whomsoever, but the statement of facts set out showshow irregularly it had been obtained, and how the most elementaryprinciples governing the administration of justice have been disregarded.
Up to this point the present appellant has not come into these proceed-ings at all. In the course, however, of the fifth defendant’s attempts torecover his costs, he seems to have become aware of what had been donein respect of the land and the buildings on it. He thereupon on July 17,
petitioned the Court to set aside the final decree and to allow himto intervene. The' grounds alleged in support of this petition were thatthe final decree was not entered in accordance with law, that the fifthdefendant had been guilty of fraud in getting the boutique allotted tohim, and that petitioner was entitled to four boutiques on the landtogether with a two-third share of the land by right of Fiscal’s transferNo. 15,259, dated September 15, 1920. Since that date petitioner statedhe had sold half his rights to one L. G. Covis Appu and that neither ofthem had received any notice of the proceedings. After notice to thefifth defendant, and after hearing argument on behalf of the petitionerand fifth defendant, the District Judge, by order dated November 23,
held that final decree had been entered and he had no power to setit aside and reopen the case. From this order the petitioner appeals.
On the appeal before us, petitioner brought further material to supple-ment his application setting out what he alleged to be the fraud of thefifth defendant in obtaining the final decree without his knowledge.There was no counter affidavit by the fifth defendant contradicting theseallegations nor is there any suggestion that the irregularities I havedetailed did not take place, although his counsel stated he denied anyfraud on his, the fifth defendant’s part. The further allegations whichpetitioner makes are as follows: The third defendant in the actionNo. 5,098, was Mohamedu Lebbe Marikar Abdul Samadu. His interests,with the boutiques put up by him, passed to petitioner by Fiscal’s transferNo. 15,259 of September 16, 1920, on a sale under a writ against AbdulSamadu. The boutiques were subsequently demolished by petitioner,and the present masonry and tiled boutiques were erected by him. InNovember, 1924, the fifth defendant (respondent to the appeal) who is abrother of Abdul Samadu, instituted partition action No. 1,502 in the
DALTON A.CJ.—Kannangara v. Silva.
District Court, Matara. The land that he sought to partition is the landthe subject of this action (No. 5,098) and the land adjoining it on thenorth. In this action (1,502) the fifth defendant, who was plaintiff, madethe present petitioner-appellant the first defendant and allotted to himthe rights that had belonged to Abdul Samadu. The present petitioner-appellant however filed answer setting out that the subject-matter ofcase No. 1,502 consisted of two distinct lands and he claimed rights inboth. At the trial this contention seems to have been accepted by theplaintiff (fifth defendant here) and by settlement dated June 21, 1928,the southern portion of the corpus there sought to be partitioned, whichsouthern portion is the corpus in this case No. 5,098, was excluded.Case No. 1,502 then proceeded in respect of the land to the north only,and final decree was entered therein on February 28, 1930. In thatdecree the petitioner-appellant was declared entitled to certain interests.
From these allegations, it appears that the fifth defendant was wellaware of the claims of the petitioner-appellant to portion of the land andto buildings he was seeking to obtain for himself in this case No. 5,098.He agreed to the exclusion of this land from his action No. 1,502 onJune 21, 1928. On July 5, 1929, however, he made his first move in caseNo. 5,098 without disclosing to the Court at any time petitioner-appellant’sclaim to the land and boutiques. On the facts this would appear to benothing but an attempt to circumvent the petitioner-appellant who hadresisted his claim in case No. 1,502, an attempt which was greatly facili-tated by the failure of the Court to hold any investigation or inquiry intohis title. He obtained his amendments to the interlocutory decree incase No. 5,098 in January, 1930, and he obtained his final decree in caseNo. 1,502 the following month. For all practical purposes he obtainedin case No. 5,098 what he had failed to obtain from the petitioner-appel-lant in case No. 1,502. There is no reason to doubt petitioner’s statementthat he was not aware of the existence of case No. 5,098 until after thefinal decree had been entered. The fifth defendant acted in the two casesby different proctors. There is nothing to suggest that his proctors incase No. 1,502 were aware of what was being done by him in case No. 5,098,but an examination by his proctor in case No. 5,098 of the proceedings in1,502, referred to as it is in his motion of January 28, 1930, should haveshown him that the land being partitioned in 5,098 had at that date beenexcluded from the land being partitioned in 1,502, and should certainlyhave put him on inquiry. The proctor must also share the blame forthe failure to hold any inquiry or investigation of the fifth defendant’sclaim, since he must also have or should have known that the PartitionOrdinance required this. A very large part of the civil work in theMatara District Court consists, I understand, of partition cases.
The first question that arises on this appeal is whether the DistrictJudge was correct in refusing to allow the petitioner-appellant to interveneafter the final decree had been entered. There is no doubt from the factsI have set out that the final decree was not “given as hereinbeforeprovided” under section 9 of the Partition Ordinance, but the DistrictJudge held that he had no power to set aside the decree.
There is authority for the contention that the petitioner-appellantcould have brought a vindicatory action impeaching the validity of the
DALTON Ajfcj.—Kannangara v. Silva.
decree (SamaroJcoon v. Jayawardena1; Jayewardene’s Low of Partition,p. 295 et seq.) Mr. Perera, for the respondent, was further not preparedto contest that petitioner might have himself instituted a partition actiontaking exception to such a decree if it had been pleaded by the defendant.He urged, however, that he could not reopen the proceedings in this caseby seeking to intervene after final decree had been entered. He referredto the case of Silva v. Silva* in this connection.
No case where a party has been allowed to intervene after final decreehas been cited to us, nor can Counsel say that it has ever been allowed.If, however, a person who was not a party to a partition action in whicha final decree has been entered, can institute a separate partition actionin the same Court as claiming an interest in the land, and seek to showthe final decree is not binding upon him, it is difficult to understand whyhe should not be allowed to effect his purpose by intervening in theoriginal action. The Appeal Court has held, however, that a Court has noinherent power to vacate its own decree or order in the same proceedingsexcept under the provisions of the Civil Procedure Code. Cases to thiseffect are reviewed in Arumugam Chetty v. Seem Mohammado.3 Thereare other cases in which this conclusion would not seem to be alwaysstrictly followed, but the Partition Ordinance dates from 1863 and theabsence of any authority for allowing intervention after a final decree issignificant. In the absence of any known case in which a party has beenallowed to intervene after final decree on the plea that the final decreeis not a conclusive one against the whole world, I am not prepared tohold the District Judge was wrong in holding he was unable to vacatethe decree already entered in the case, and therefore in refusing to allowthe intervention.
The question then arises whether this Court has power to deal with thematter as it arises here in revision. There is no doubt as to the grossirregularities in the proceedings upon which the fifth defendant obtainedhis final decree in several respects, and the petitioner has shown it hasnot the effect of a final decree as provided for by section 9 of the PartitionOrdinance. He is not, however, a party to the action. Does that debarhim from seeking this remedy ? de Sampayo J. in Ibrahim v. Beebe,*where a similar question is dealt with, does not hold this remedy is notavailable for a person who has not been a party to the action. WoodBenton C.J. also held in that case that the Court ought not on the factsto exercise its powers in the case of the intervenient there, not that theCourt could not do so. In Perera v. Fernanda' Moncreiff A.CJ. andMiddleton J. granted relief to a person who came forward after finaldecree had been entered. The applicant there had been made defendantin the action, but never had notice of or knew of the proceedings. Hewas really in the position of a stranger to the action and asked to beallowed to intervene. The trial Judge refused leave to intervene at thatstage, and on appeal the Court held that the proceedings were irregular,there being no partition trial as required by the Ordinance and thereforenothing that could be called a final decree in the action. Belief wasgranted, and the final decree entered was therefore set aside, proceedings
1 iS If. L. R. 316.*2 C. h. R. 16.
» 13 N. L. R. 87.* 19 If. h. R. 297.
5 3 Browne's Reports 6.
DRIEBERG J.—Kcmnangara v. Silva.
being ordered to be taken de novo in the manner provided by the PartitionOrdinance. The judgments do not expressly say that Court was actingin revision, but I think it is clear it was so acting. It was not held thatthe District Judge was wrong in refusing to allow the intervention atthat stage.
The case before us is a very much stronger one on the facts than Pererav. Fernando (supra), and it seems to me to be eminently a case in which thisCourt should interfere. The proceedings following on the fifth defendant'smotion of July S, 1929, are full of irregularities, there has been no attemptto ascertain who are the actual owners of the land or to have the properparties before the Court, there has been no trial, and therefore there canbe nothing that can be called a final decree. The power given by section40 of the Courts Ordinance and by section 753 of the Civil ProcedureCode is very wide. It must for that reason, however, be exercised withgreat care, although there seem to be no hard and fast rules governingthe exercise of this power. The petitioner-appellant is in this case, inmy opinion, entitled to the relief he asks for, and all proceedings in thisaction from and after July 5, 1929, must be set aside, including the orderon respondents' application of that date.
The appeal is allowed and petitioner is entitled under the circumstancesto costs in both Courts.
There can be no question as to the irregularity of these proceedings andthat the decree for partition was not entered in the manner provided bythe Ordinance; though for this reason it is not binding on the appellant,he has the right to a judicial declaration that this is so, and the questionhas arisen in what manner he can obtain it. The appellant, who was nota party to the partition action and did not know Of it until after the finaldecree, applied in the District Court that the decree be set aside and thathe should be allowed to intervene and prove his claim to an interest inthe land. The learned District Judge refused his application on theground that he had no power to reopen the case. The appellant hasappealed from this order. Mr. Perera, for the respondent, contended thatthe decree cannot be set aside in proceedings in this action, whether bythe District Court itself or by this Court in the exercise of its powers ofrevision.
If the appellant brought an action for a declaration of title to his shareand the defendant in it set up against him a title based on the partitiondecree, it would be open to him to plead and prove that the partitiondecree was not binding on him as it had been entered in the mannerprescribed by the Partition Ordinance (Gooneratne v. Bishop of Colombo');the same plea would be available to him if he was sued by a plaintiff whoclaimed on a title derived from the partition decree. The contentionthat he cannot move in the partition case is based on an observation ofLayard C J. in Fernando v. Fernando.2 In that case a husband marriedin community of property claimed and obtained in a partition action titleto a one-fifth share without disclosing the fact that his wife was dead andthat he had children by her who were entitled to half of that share. Thesechildren, eighteen years after the decree, applied to have it set aside and
» (1931) 89 N. L. it. 837.* (J9031 9 N. L. R. 937.
Jamel v. Haniffa.
that they be allowed to intervene and have their share allotted to them.Layard C.J., in agreeing with the judgment of Wendt J. which was theprincipal judgment, said that as it was contended that the decree did notbind the children, there was no adequate reason why they should beallowed to disturb it. When the application was made the father wasdead, his estate had been administered and his one-fifth share had' devolved on them. Their object was to get this share free of a mortgageeffected by their father after the partition decree, and it was not dearthat they had not derived benefit from the mortgage. The refusal of theapplication was on a consideration of its merits, and it cannot be regardedas an authority that the Supreme Court cannot, on an application ina partition action, set aside a final decree on the ground that it wasirregularly entered.
There is authority that a final decree can be set aside in proceedingstaken in the partition action; in Perera v. Fernando' final decree was setaside and intervention allowed of a person who, though named as adefendant, had no notice of the action. The decree was set aside anddirection given for fresh proceedings on account of several irregularities,one of which was failure to give the necessary notice before making thepartition. From the judgment of Middleton J., I gather that the main,if not the only, question considered in the District Court was whetherthe appellant has been served with summons. The District Judge heldthat he had been served. He appealed and the Supreme Court held thathe had not been duly served. Middleton J. after so holding went on tosay that there were other reasons for setting aside the decree, and he setout the several irregularities in the proceedings. The judgments do notexpressly state whether the order was made in the appeal or by way ofrevision. It can however be taken that it was made in the exercise ofthe power of revision, for the District Court had no power to set aside itsown judgment (Arumugam Chetty v. Seeni Mohammado2).
I agree with the order made by the Chief Justice.
KANNANGARA v. SILVA et al