WIJEYEWARDANE J.—Wijeysekere and Wijeysuriya.
1943Present: Moseley S.P.J. and Wijeyewardene J.
WIJEYSEKERE Appellant, and WIJEYSURIYA, Respondent.
31—D. C. Tangalla, 4,123.
Partition action—Application for intervention—Power of Court.
In a partition action a Court should not deny to parties the right tointervene until the final decree is entered.
In granting an application for intervention the Court has power toimpose such terms as may appear fair and equitable.
^ FPEAL from an order of the District Judge of Tangalla.
A. R. H. Canekeratne, K.C. (with him Cosme), for intervenient-appeliant.
C. V■ Ranawake (with him H. W. Jayawardene), for substitutedplaintiffs, respondents.
Cur. adv. vult.
July 7, 1943. Wijeyewardene J.—
This is an appeal from an order rejecting the appellant’s applicationto intervene in a partition action. The case was filed in 1936 and decreewas entered in September, 1938, dismissing the action on the groundthat the third defendant had acquired title to the entire land byprescriptive possession. In appeal, the finding on the question ofprescriptive possession was set aside and the case was remitted to theDistrict Court for trial “ on the question of title and any other questionthat may arise in the case other than the points ” decided by this Court.At the conclusion of the second trial, the District Judge entered apreliminary decree for partition in March, 1941, declaring the originalparties entitled to certain undivided shares. An appeal taken againstthat decree by the third defendant was dismissed in June, 1942. Nofinal decree has been entered.
The appellant filed a statement in September, 1942, setting out her titleto an undivided share of the land and moved to intervene in the action.That statement, I may add, raises a question which was raised unsuccess-fully by the third defendant at the second trial. The substituted
WIJEYEWARDENE J.—Wijeysekere and Wijeysuriya.
plaintiffs, respondents, who received notice of the application objectedto the intervention.. The District Judge made the following orderdisallowing the application : —
“ This case was instituted so far back as October, 1936, The1 intervenient gives no reason for this belated application. This applica-tion is only to delay a much delayed case. I refuse the application. ”
The learned Judge did not give an opportunity to the appellant toexplain her delay in filing her statement of claim. It is, no doubt,,true that the appellant’s intervention will have the effect of “ delaying ”the case, but that is a necessary result of all interventions and cannot beregarded as a good ground for the order made by the District Judge.
In view of the conclusive effect given to final decrees by section 9 of thePartition Ordinance, Court should not deny to parties the right to intervene .in a partition action, until the final decree is entered (vide Menika v.Mudiyanse ’). On the other hand section 18 of the Civil Procedure Codeempowers a Court in an appropriate case to impose such terms as mayappear fair and equitable while granting an application for intervention(Vide Abdul Rahiman Lebbe v. Ismail Lebbe Marikar ‘.) I think that thisis a case in which such an order should be made.
1 set aside the order against which this appeal is taken and direct theDistrict Judge to admit the intervention, if the appellant deposits inCourt Rs. 150 before August 31, 1943; as security for the costs that may beincurred by the substituted plaintiffs, respondents, in consequence of theintervention. If the appellant fails to make such deposit, her applicationfor intervention will stand dismissed.
The appellant is entitled to the costs of appeal as against the substitutedplaintiffs, respondents.
Moseley S.P.J.—I agree.
Appeal allowed. 1
1 4 C.W. R. 429.
Leader Law Rep. 126-
WIJEYSEKERE Appellant, and WIJEYSURIYA, Respondent