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Present: Sir Charles Peter Layard, Chief Justice, and Mr.
AHAMADO LEBBE v. MARIS APPU et al.
D. C., Colombo, 13,876.
Vendor—Notice to warrant and defend title—Bights of vendor—Procedure—
Roman-Dutch Law—Civil Procedure Code, s. 18.
Where a vendor receives formal notice calling on him to warrantand defend his title to a property sold by him, he may either takepart in the suit against the trespasser in order to prevent collusion,or he may suffer the purchaser to appoint him procurator in remsuam and take the conduct bf the action into his own hands, or if he is madea defendant in the action he may ask, under section 18 of the Civil ProcedureCode, that he be transferred from the position of a defendant to that of aplaintiff.
rpHE facts sufficiently appear in the judgment of Wendt J.
Bawa, for the sixth defendant, appellant.
H. J. C. Pereira, for the defendants, respondents (first to fourth).
Cur. adv. vult.
(1) (1903) 9 N. L. R. 246, at p. 248.
10J. N . A 99412 (8/50)
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12th May, 1903. Wendt J.—
The appeal- ot the sixth defendant in this oase is practically anappeal on behalf of the plaintiff, and as such we cannot recognize it.The sixth defendant is one of the vendors to the plaintiff, the seventh,eighth, and ninth defendants being the other vendors. These fourparties were made defendants, but the plaint contained no prayerfor relief against them beyond the prayer that the Court shouldsummon them to appear and warrant and defend the plaintiff’stitle to the land which was the subject of the action. Now, a pur-chaser in the plaintiff’s position, who is driven to bring an actionagainst a person disputing his title, has no doubt to give a formalnotice of action to his vendor in order to enable the latter to intervenein the action (if so advised) and support the plaintiff in his contestwith the disturbers. Voet (21, 2, 20) deals with the duty of a vendorreceiving such a notice. He may take part in the suit in order to.prevent collusion, or he may suffer the purchaser to -appoint himprocurator in rem suam and may take the conduct of his action intohis own hands. In the present instance the sixth defendant filed nopleading, and he appeared in person at the trial. He did not ask, asI think he might have done under section 18 of the Civil ProcedureCode, that he be transferred from the position of a defendant to thatof a plaintiff, and he did not undertake the conduct of the case asagainst the opposing defendants. The case accordingly was conduct-ed by the plaintiff, who was represented by counsel and proctor.Decree was passed against the plaintiff holding that his title wa6 bad,and the plaintiff, notwithstanding, as .1 am informed at the bar,every effort of the sixth defendant to induce him to appeal againstthat decree, has refused to do so. We think that the sixth defendanthas himself to thank for the position in which he finds himself. Heseems to have had confidence in the plaintiff’s management of thelitigation, and plaintiff did so far as appears avail himself of all theassistance which the sixth defendant offered him. Nothing likefraud or collusion between the plaintiff and the opposing defendantis suggested, and we see no reason for interfering in the appellant’sbehalf.
The appeal is therefore dismissed. Counsel agree to the costsbeing divided.
Layard C.J.—I agree.
AHAMADO LEBBE v. MARIS APPU et al