Deerasooriya v. Vanderpoorten
Present:Basnayake, C.J., and Pulle, J.S. DEERASOORIYA, Appellant, and B. VANDERPOORTEN,
S. G. 86 A-B—D. C. Badulla, 11329
Partition Act—Proceedings thereunder—Power of Court to issue an injunction inrespect of movable property—Power of Court to appoint receiver—Objectionto jurisdiction of court—Stage at which it should be taken—Courts Ordinance(Cap. 6), so. 71, 86—Civil Procedure Code, a. 671 et seq.—Consent order—Application for writ—“ Order of Court
In proceedings under the Partition Act the Court is entitled to issue aninjunction in respect of movable property under section 86 of the CourtsOrdinance. No. is the Court precluded from making an order under Chapter Lof the Civil Procedure Code in such proceedings.
Section 71 of the Court* Ordinance precludes a party from objecting, Forthe first time in apj eal, to the jurisdiction of the trial Court.
An application for writ in respect of a consent order or decree cannot bequestioned on the ground that there was no order of the court, if the partieshave acted on the footing that there was an order of the court.
from a judgment of the District Court, Badulla.
C. Thiagalingam, Q.C., ■with V. Arulambalam, for 4th Defendant-Appellant in both Appeals.
H. V. Perera, Q.C., with Sir Uhwatte Jayastmdera, Q.C., G. G.Weeramaniry and E. B. Vannilamby, for Plaintiff-Respondent in bothAppeals.
BA3NAYAKE, C.J.—Deerasooriya v. Vanderpoorten
October 28, 1959. Basnayake, C. J.—
Appeal No. 86A is against certain orders made in the course of the pro-ceedings under the Partition Aot. It was argued by learned counselfor the appellant that it is not open to a court to issue an injunction inrespect of movable property under section 86 of the Courts Ordinance inproceedings under the Partition Act. We are unable to uphold that con-tention. There is nothing in the Partition Act which precludes a courtfrom issuing an injunction under that section of the Courts Ordinance inproceedings under that Act. The terms of section 86 of the CourtsOrdinance are very wide. It provides that an injunction may be issued“ in any action instituted in any District Court or Court of RequestsWe also do not think that the court is precluded from making an orderunder Chapter L. of the Civil Procedure Code in proceedings under thePartition Act.
In regard to the objection raised in the petition of appeal to the juris-diction of the court below we wish to observe that throughout the pro-ceedings in the lower court no objection was taken to its jurisdiction. Theappellant is precluded by section 71 of the Courts Ordinance from raisingthat question now. It reads :
“ Whenever any defendant or accused party shall have pleaded inany cause, suit, or action, or in any prosecution brought in any DistrictCourt, without pleading to the jurisdiction of such District Court,neither party shall be afterwards entitled to object to the jurisdictionof such court, but such court shall be taken and held to have jurisdic-tion over such cause, suit, action, or prosecution :
“ Provided that where it shall appear in the course of the proceedingsthat the cause, suit, action, or prosecution was brought in a courthaving no jurisdiction intentionally and with previous knowledge ofthe want of jursidiction of such court, the Judge shall be entitled athis discretion to refuse to proceed further with the same, and to declarethe proceedings null and void. ”
Learned counsel for the appellant also sought to argue that there wasno consent order or decree and that the plaintiff-respondent’s applicationfor writ is bad. No objection was at any time taken to the order of the11th June 1954 on the ground that it was not an order of the court. Asa matter of fact all the proceedings throughout were on the basis that itwas an order of the court and the parties themselves have acted on thefooting that it was an order of the court. The learned trial Judge whomade the order has meant it to be so and has said so in the course of hisjudgment.
There is no substance in learned counsel’s contention.
The appeal is dismissed with costs.
Appeal No. 86B is also dismissed.
Pulle, J.—I agree.
S. DEERASOORIYA, Appellant, and B. VANDERPOORTEN, Respondent