( 146 )
Present: Lascelles C.J.; Wood Renton and Grenier JJ.
SILVA v. SILVA et al.
1S8—D. C. (Inty.) Matara, 4,967.
Partition—Interlocutory decree for partition—Subsequent order tosell—
Court of first instance has no power—Civil Procedure Code, s. 189. ■
Where there has been an interlocutory decree for partition, aCourt of first instance has no power to set it aside and order a saleon the ground that a satisfactory partition is impracticable.
An interlocutory decree for partition is a decree within themeaning of section 20tl, and can only be modified in accordancewith the provisions of section 189 of the Civil Procedure Code.
HE facts appear sufficiently from the judgment.* The case wasreserved for a Full Bench by Wood Renton and Grenier JJ.
V. Grenier, for the appellant.—The decree for partition is aninterlocutory decree, which is binding on the parties. The Judgehad no power to alter the decree which he had entered except forreasons stated in section 189. See Silva v. Silva1, De Silva v.Ponnasamy 2.
' (1910) 13 N. L. R. 87.
S (1909) 1 Cur. L. R. 2S0.
( 147 )
Sampayo, K. C.( for the respondent.—The order to partition isnot an adjudication of any matter between the parties. It is onlyan expression of the intention of the Court in the matter. Aninterlocutory decree in a partition case is no doubt binding on theparties, as was held in Silva v. Silva1; but the order to partition isnot a decree in that sense. There is a duty on the Court to parti-,tion the land if it can; and otherwise to sell iti The order to partitionis an order to the Commissioner, who is an officer of Court.
Allan Drieberg, for the eighth defendant respondent.
. Cur. adv. vult.
Fehrunrv 28, 1912. Lasceij.es C.J.—
This is a partition action. On December 8, 1910, the DistrictJudge of Matara found that the land in question was owned by thepersons in the shares shown in the plaintiff's pedigree, and aninterlocutory order was entered accordingly. Difficulties then arosewith regard to the scheme of partition, and it was ultimately foundimpossible to partition the land to the satisfaction of all parties.The District Judge, after inspecting the land and considering thedifferent proposals'for a partition, directed a sale of the land, and'adecree was drawn up accordingly on October 23, 1911.
It is now contended by the appellants that it was not open to theDistrict Judge to order a sale of the property, and thereby, in effect,to vary the earlier interlocutory order.
After the judgment of the Full Bench of this Court in Silvav. Silva1, I do not think that it is possible to contend that it isopen for a Judge, who has made a preliminary decree in an action,or for his successor, to alter or modify the preliminary decree,except subject to, and in accordance with, section 189 of the CivilProcedure Code.
In the present case it seems clear that the learned District Judgein directing a sale acted in the best interests of uhe shareholders asa whole. And in order to remove any technical objection to hiscarrying out a sale, if he still considers that a sale is to the advantageof all Idle shareholders, I would set aside both the final and inter-locutory decrees and remit, the case to the District Judge to makesuch interlocutory and final orders as he may consider advisable,after hearing in each case any further objection which any of theparties may put before him.
I would make no order with regard to the costs of this appeal,and would leave the other' costs in the discretion of the DistrictJudge.
I agree to the order proposed. iS-
1 U910) 1$ N. L. R. 87.
( 148 )
Wood Renton J.—
I quite agree that in this case a satisfactory partition is imprac-ticable, and that the Supreme Court, on the terms proposed by my -Lord the Chief Justice, should set aside the interlocutory decree forpartition and direct a sale.
I desire, however, to say that, in my opinion, such an order can bemade by the Supreme Court alone. I do not think that where, ashere, there has been an interlocutory decree for a partition, theproviso to section 4 of Ordinance No. 10 of 1863 or any other sectionin that Ordinance enables a Court of first instance to set it aside andorder a sale, however expedient on the evidence a sale might be.We are bound on this point by the decision in Silva v. Silva ’• It istrue, as Mr. de Sampayo pointed out, that the question of factinvolved in that case was one of title and not of procedure. Butthe ratio decidendi clearly was that an interlocutory decree for apartition is a decree within the meaning of section 207, and thereforecan only be modified in accordance with the provisions of section 189of the Civil Procedure Code.
Set aside and sent back.
SILVA v. SILVA et al