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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Wood Benton.
BANDABANAIKE v. BANDABANAIKE.
Ex parte Dus et al., Appellants.
D. C., Colombo, 24,441.
Partition tint—Order for sale—Intervention of third parties before actualsale—Ordinance No. 10 of 1863, s. 4.
Where after an order for sale had been made in a partition suitunder section i of Ordinance No. 10 of 1863, but before such salewas carried out, certain persons claiming to be entitled to shares inthe land, the subject' of the action, applied to intervene in theaction, and the District Judge refused their application—
Held (reversing the order of the District Judge), that they wereso entitled.
Catherinahami et cl. v. Babahamy et al.1 followed.
HIS was a partition suit. On November 5, 1907, the Courtentered decree allotting certain shares to the plaintiffs and the
defendants, and ordered a sale under section 4 of the PartitionOrdinance (No. 10 of 1863). Before the sale took place, the peti-tioners, alleging that the; were entitled to certain shares in theproperty sought to be partitioned, applied that they be allowedto intervene in the action.
The District Judge (J. Grenier, Esq.) made the following orderdismissing the application (January 31, 1908):—
“ I am clearly of opinion that the proposed intervenients cannotbe allowed to come into the case at the present stage. There hasbeen a decree of sale already entered, and the final and conclusivejudgment under section 9 is undoubtedly the decree under section 4,whereby the shares of the parties are ascertained, a sale ordered,mid the proceeds of sale distributed according to the shares ascer-tained. There can be no doubt as to the meaning of the wordsemployed in both these sections. They are free from any doubt orambiguity, and it is the duty of the Court to give effect to themwhatever the consequence may be. I cannot read into these twosections words which are not there, or which are opposed to theirplain meaning and intent.
“ Mr. Jayewardene pressed upon me a dictum of Lawrie J. in acase reported in Lux Reports, p. 13, where he .held that the finaljudgment in the case of a sale is the certificate of Bale under the handof the Court; but I can only regard what he said in the light of a
» (1908) 11 N. L. B. 00.
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1908. pious opinion, because I do not find that he was followed on the pointJune 17. jjy any other Judge of the Supreme Court. The learned author ofthe Law of Partition in Ceylon appears to ine to have fully discussedthe question regarding the conclusive nature of a decree undersection 4 in case of a sale at pages 53-57 of his work, citing all theavailable authorities relating to the question, and being identicalwith the counsel who, by the accident of his appearing for theproposed intervenients, was obliged to support the contrary viewbefore me, I can quite understand that his task was a laborious anduphill one, and that he failed to convince me that his clients wereentitled to come into the case. From the case of Abdvl Ally v.Kelaart, D. C., Colombo, 11,747,1 it may be gathered, althoughit was not expressly held, that the two learned Judges who decidedthe appeal were of opinion that in a partition suit where the decreedirects a sale the final judgment is the decree under section 4.
" I may mention that in practice the decree under section 4 in .case of a sale has always been regarded as conclusive, and that anyparty who has not been joined in the action has his remedy fordamages only. I disallow the application with costs. ”
The petitioners appealed.
June 17, 1908.
H. Jayewardene (with him A. St. V. Jayewardene), for the .appellants, cited Catherinahami et al. v. Babahami et al.2
F. M. de Saram, for the respondent, relied on D. C., Colombo,11,747-1
Bawa, for the plaintiffs, did not oppose the application of theappellants.
The Court allowed the appeal on the authority of Catherinahamiet al. v. Babahami et al., and permitted the appellants to intervene inthe action.
1 S. C. Min., Aug. 4, 1904.
* (1908) 11 N. L. B. 20.