( 186 )
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.
Appeal allowed.
1 S. C. Min., Aug. 4, 1904.
* (1908) 11 N. L. B. 20.