Sttun Bibee v. AbusaXly Marikar
-1953Present : Nagalingam A.C.J.SET UN BIBEE et al., Appellants, and ABUSALLY M ARIKAR,RespondentS. C. 129—O. R. Kegalle, 13,669
.Partition action—Minority of defendants—Summons served on them personally—Minors not legally represented—Effect On proceedings—Civil Procedure Code,s. 480.
Some of the defendants in a partition action were minors. No appointmentof a guardian ad litem had been made in respect of them, and service ofsummons was made on them personally. After final decree was entered theymoved under section 480 of the Civil Procedure Code to have the decree setaside.
Held, that the final decree could be set aside for the reasons (1) that as thedefendants were minors, the service of summons on them personally wasineffective, and (2) that section 480 of the Civil Procedure Code, which declaresthat an order made in ah action in which a minor is a party without such minorbeing represented by a guardian ad litem may be discharged on application-made for the purpose, is not inapplicable to actions filed under the Partition•Ordinance.
XAGALESTGAtt A.C.J.—Seiun Bibee v. AbusaBy Marikar
A PPEAL from a judgment of the Court of Requests, Kegalle.
A. L. M. Hashim, for the defendants appellants.
S. J. Y. Chelvanayakam, Q.C., with K. S. Rajah, for theplaintiffs respondents.
Cur. adv. vult.
October 2, 1953. Nagaungam A.C.J.—
This is an appeal from an order refusing to set aside a final decreeentered under the Partition Ordinance. The application to set aside the-decree was made to Court on the ground that the 2nd to the 5th-defendants-appellants were minors at the date of the institution of theaction and that no appointment of a guardian ad litem had been madein respect of them and that the final decree too was entered withoutany representation of the minors having been made. None of the minorsappeared in Court during the course of the proceedings, nor did eventhe sole major defendant appear. As to why the major defendant didnot appear there is no explanation, but in the result the case wasadjudicated upon ex parte on the testimony of the plaintiff in the absenceof any pf the defendants.
There is no evidence to show whether the plaintiff stood in anyrelationship to the defendants or not, but whatever that may be thealleged service of summons on the minor defendants cannot be regardedas a true report. Two of the defendants, namely the 4th and the 5th,were stated in 1950 to be fifteen and fourteen years of age respectively -The action was filed in 1940, so that at the date the summons was reportedto have been served on these two defendants they were to say the leastfive and four years old. The 2nd and 3rd defendants must have beenolder, but it is obvious that no effective service of summons could havobeen effected on them too.
The learned Commissioner held, relying upon the cases of Randeniv. Allis Appu 1 and Fernando v. Fernando 2, that even though some ofthe defendants may have been minors the final decree entered under the-Partition Ordinance was binding on them, and that their remedy layunder the other provisions of the Partition Ordinance. This view, howeverprevailed at a time when the final decree under the Partition Ordinancewas regarded as sacrosanct and inviolable ; but that view has since beendeparted from.
In the case of Fayawardene v. Weerasekera 3 de Sampayo J. held thatwhere the proceedings had not been conducted in conformity with the-essential provisions prescribed by the Partition Ordinance, a decree^entered thereunder acquired no immunity against its being declarednull and void. In the case of Caldera v. Santiago Pillai 4 a final decree'
1(1900') 1 Br. 284.*(1917) 4 O. W. B. 406.
(1905) 9 N. L. B. 241.*(1920) 22 N. L. B. 155.
■238ISTAGAXiINGAM A.C.T.—Setun Bibee v. Abusally JMarikar
entered was set aside on the ground that service of summons on thedefendant had not been duly effected. To the same effect is the morerecent case of Pablis v. Euginahamy1.
Once the barrier of the sacrosanct character of a final decree isbroken through, the reasoning underlying the case of Ram’eni v. AllisAppu and Fernando v. Fernando (supra) for holding that the decreecannot be set aside fails, and one is free to consider what the effect ofminority of defendants is on proceedings in a partition action, where■they have not been legally represented.
One aspect of the question discloses the existence of reasons identical-with those given for setting aside a decree on the ground that summonswas not duly served on the defendant. Where the defendants are minors,mo effective service of summons can be made on them personally. Inthis case, as pointed out earlier, two of the minors in any event were'five and four years of age. It is difficult to understand the argumentthat the service alleged to have been made on those two infants, if theservice was made at all, must be regarded as satisfactory. The trueposition,- to my mind, is that no service of summons was effected onthem and that there was a non-compliance with one of the essential■ steps that had to be taken under the Partition Ordinance before a valid-decree could have been entered under it. This view would be directlybased upon the cases of Jayawardenev. Weerasekera, Caldera v. SantiagoPillai and Pablis v. Euginahamy (supra).
The other aspect of the question is one that arises upon a consideration-of section 480 of the Civil Procedure Code, which declares that an ordermade in an action to which a minor is a party without such minor being-represented by a guardian ad litem may be discharged on applicationmade for the purpose. In this case the minors have made the necessaryapplication and they are entitled to the relief provided by the section.I do not think it sound to say, as eontended for by respondent’s counsel,-that section 480 has no application to actions filed under the PartitionOrdinance. The Civil Procedure Code governs the procedure to be followed•in all the Civil Courts of the Island subject to any- special provision tobe found in any particular enactment. The Partition Ordinance makesmo provision with regard to service of summons or for the appearance ofminors and the provisions of the Civil Procedure Code indeed do apply-to Partition actions as well in regard to such service or appearance.
The appellants have made out their case and their appeal is entitledto succeed.
I therefore set aside the order of the learned Commissioner and vacate-the decrees entered in the action and set aside all proceedings in theaction subsequent to the order for the issue of summons. Summons willbe taken out by the plaintiff on the 2nd to the 5th defendants and servedon them- or their guardian ad litem and the action will thereafter proceedan the ordinary way. The appellants will be entitled to the costs of appeal.-and of the proceedings had in the lower Court.
C1948) 50 N. L. R. 346.
SETUN BIBEE et al. Appellants, and ABUSALLY MARIKAR., Respondent