152-NLR-NLR-V-47-DE-ZOYSA-Appellant.-and-GUNASEKARA-et-al-Respondents.pdf
KEUNEMAN S.P. J.—da Zoysa v. Qunasekera.
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1946Present: Keuneman S.P.J. and Jayetileke J.I>E ZOYSA, Appellant, and GTJNASEKERA et al., Respondents.
46—D. C. (Inty.), Balapitiya, 1,339.
Partition action—Party defendant in representative capacity—His right tointervene in personal capacity after interlocutory decree is entered.
In an action for partition a party who appeared in a representativecapacity and not personally is entitled to intervene in his personalcapacity after interlocutory decree is entered and before the date ofthe final decree. The court can, however, put him on terms where theintervention is dubious or belated.
^ PPF.AL from an order of the District Judge of Balapitiya.
This was an application to intervene in a partition case after preliminarydecree was entered. The intervenient, Arthur de Zoysa, was already thefifth defendant in the case, having been made party defendant in hiscapacity as the administrator of the estate of one Robert de Zoysa.
He filed answer as administrator and took no further steps whatever.On the trial date, after evidence was heard, interlocutory decree forpartition was entered. According to the evidence, the fifth defendant wasnot entitled to any share in the property in question. He subsequentlymade application to intervene, claiming four acres of the land as belongingto him in his personal capacity on a deed executed by the original ownerof the land. The learned District Judge dismissed his application holdingthat the interlocutory decree bound the parties to the partition actionand that an original defendant could not thereafter come in as anintervenient.
Cyril E._S. Perera (with him E. A. G. de Silva), for the intervenient,appellant.
A. Rajapakse, K.C. (with him D. D. Athvlathmudali), for the plaintiff,respondent.
October 1, 1946. Keuneman S.P.J.—
I do not think the order of the District Judge disallowing the inter-vention of the intervenient can be supported. No doubt the inter-venient was a party to the proceedings and to the interlocutory decree
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CANEKERATNE J.—Thasaim v. Cabeen.
but be was a party in a representative capacity and not personally. Hewould accordingly be entitled to intervene up to the date of the fined decree,subject to this that the court would be entitled to put him on terms wherethe intervention was dubious or belated. However, in this case theappellant in his affidavit has given some explanation of his delay inputting forward the claim he now wishes to put forward.
In all the circumstances I think the order of the District Judge must beset aside and the appellant will be entitled to intervene in this case andfile statement if he will give security for costs in the sum of Rs. 200to the satisfaction of the court within one month of the date of therecord Of this case reaching the District Court of Balapitiya. If ho failsto give this security within the time required his application for inter-vention will be refused.
There will be no costs of appeal or of the inquiry in the lower court.Jayetxleke J.—I agree.
Order set aside.