020-SLLR-SLLR-1978-79-V2-Dissanayake-v.-Elisinahamy.pdf
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Sri Lanka Law Reports (1978-79) 2 S.L.R.
Dissanayake
v.Elisinahamy
COURT OF APPEAL.
SOZA, J. AND ABDUL CADER, J.
C.A. APPLICATION NO. 128/79—D.C. HAMBANTOTA 174/P.
APRIL 2, 1979.
Partition Act (Cap. 69), sections 48(1), 49—Application by way ofrevision and/or restitutio~in-integrum to set aside judgment in partitionaction—Disclosure of parties—In what circumstances do these remedieslie.
Judgment was delivered in a partition action on the basis that oneof the co-owners had died intestate leaving a husband and five children.Interlocutory decree had not been entered. The petitioner then filedpapers in the Court of Appeal by way of revision and/or restitutio-in-integrum stating that the said co-owner had six children and that the6th child who had not been disclosed had died intestate leaving herhusband the present petitioner and two minor children. The judgmentwas sought to be set aside on this ground.
Held
Section 48(1) of the Partition Act had not taken away the right of theCourt of Appeal to set aside an interlocutory or even a final decreein a partition action by way of revision and/or restitutio-in-intpgrum.However the Court did not have the right to do so in revision incircumstances such as the present.
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Dissanayake v. Elisinahamy (Abdul Cader, J.)
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Relief by way of restitutio-in-integrum could also not be grantedinasmuch as the petitioner had not been a party to the action. Thepetitioner’s remedy was under section 49 of the Partition Act. Thefact that the claimants were minors would not alter the situation.
Although interlocutory decree had not yet been entered this wasonly a ministerial act and the fact that it had not been entered thereforewould make no difference to this application.
Cases referred to
Petisingho v. Ratnaweera, (.1959) 62 N.L.R. 572.
Noris v. Charles, (1961) 63 N.L.R. 501.
Odiris Appuhamy v. Caroline Nona, (1964) 66 N.L.R. 241.
Rasah v. Thambipillai, (1965 ) 68 N.L.R. 145; 69 C.L.W. 57.
Nonnohamy v. Odiris Appu,.(1965) 68 N.L.R. 385.
Perera v. Wijewickrema, (1912) 15 N.L.R. 411.
Perera v. Simeon Appuhamy, (1923) 2 Times Law Reports 119.
Pablis v. Euginahamy, (1948) 50 N.LJR. 346.
Mariam Beebee v. Seyed Mohamed, (1965) 68 N.L.R. 36; 69 C.L.W.
34.
Leisahamy v. Davithsingho, (1970) 79 CX.W. 109.
Ukku v. Sidoris, (1957) 59 N.L.R. 90.
APPLICATION to revise an order of the District Court, Hambantotaand/or for restitutio-in-integrum.
J. R. M. Perera, for the petitioner.
J. W. Subasinghe, for the respondent.
Cur. adv. vult.
April 11, 1979.
ABDUL CADER, J.
Plantiff filed action P/174 for partition. He disclosed SomawathieAlahapperuma as one of the co-owners and stated that she diedintestate leaving behind her husband and five children. Judgmentwas delivered allotting shares on that basis. From journal entriessupplied to us, it appears to us that interlocutory decree had notbeen entered. But this makes no difference for the reason thatinterlocutory decree is only a ministerial act, Petisingho v.Ratnaweera (1).
Petitioner has filed these papers by way of revision and/orrestitutio-in-integrum, stating that Somawathie Alahapperumahad not five children, but six children, the undisclosed childbeing Nelie Indrani Abeyasiriwardena, and she died intestateleaving her husband, the petitioner, and two minor children.The petitioner has moved that judgment be set aside and afresh trial be ordered. I proceed to consider this petition on thebasis that the fact stated that Nelie Indrani Abeyasiriwardena wasa legitimate child of Somawathie Alahapperuma is true.
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The Supreme Court has consistently decided that the rightof the Court of Appeal to set aside an interlocutory decree oreven a linal decree by way of revision and/or restitutio-in-integ-rum has not been taken away by section 48 (1) of the PartitionAct. In Noris v. Charles (2) Sinnatamby, J. stated as follows :—“ The legislature at the same time realised that persons maybe adversely affected by the conclusive effect given to boththe interlocutory and the final decree and by section 49 re-enacted the provisions of the proviso to section 9 of theearlier Ordinance which gave such persons the right to bringan action for damages. In the case of persons who are notparties to the action, however, sub-section 3 provides, interalia, that the fact that the lis pendens had not been properlyregistered would deprive the decree of its final and conclu-sive effect. That is all that sub-section 3 provides. A personwho was not a party to the partition action is not bound bythe interlocutory decree if lis pendens had not been properlyregistered. This does not mean that he is entitled to interveneand have the interlocutory decree set aside. His position wouldbe much the same as a person who is not a party to a vindi-catory action. He is unaffected by the decree and is entitledto assert his rights as against the holder of the decree in anysteps which are sought to be taken under it. ”
In Odiris Appuhamy v. Caroline Nona (3) Basnayake, (J.J.analysed the three subsections of section 48 of Partition Act andstated as follows : —
“ The three subsections taken collectively indicate that notwith-standing—
any omission or defect of procedure, or
in the proof of title adduced before the court, or
the fact that all persons concerned are not parties to
the partition action—
the decrees are final and conclusive against all persons whom-soever except against a person who has not been a party tothe partition action and claims a title to the land indepen-dently of the decree. Such a person must assert his claim ina separate action and can only succeed if—
he proves that the decree had been entered by a court
without competent jurisdiction, or
that the partition action has not been duly registered
as a lis pendens.
The present claim is one to be added as a party to the partitionaction and does not fall within the ambit of that provision.
The District Judge has no power to set aside his own decree.’1
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In the Divisional Bench case of Rasah v. Thambipillai (4)Sansoni, J. stated as follows:—
“Section 70(1) provides that the Court may at any timebefore interlocutory deci-ee is entered add as a party tothe action—
any person who, in the opinion of the court, should be,
or should have been, made a party to the action, or
any person who, claiming an interest in the land, applies
to be added as a party to the action.
The effect of this provision is that no intervention can bepermitted at any stage after interlocutory decree has beenentered. ”
He went on further to state: —
“ The terms of the relevant sub-sections show that whethera decree has been entered in a court of competent jurisdictionor not, and whether the action has been duly registeredas lis pendens or not, the only effect of any omission ordefect in these respect is to deprive the decree of its finaland conclusive effect as against a stranger to the actionclaiming an interest independently of the decree. He is notbound by it and is free to attack it as being incorrect where itdefines the rights of the parties.
There is nothing in section 48 or any other section of the Actto support the argument that a decree which, has either of tiletwo flaws mentioned in section 48(3) is invalid. On thecontrary, the provisions in section 48 (1) that the decree‘shall be good and sufficient evidence of the title of anyperson as to any right, share or interest awarded therein tohim,’ is deliberately left unaffected. The decree is still tobe treated as being in force, and effective, though it is notfinal and conclusive against the particular persons justmentioned. ”
In the case of Nonnohamy v. Odiris Appu (5) a DivisionalBench by a majority refused to set aside the decree entered inthat case. It is interesting to note that G. P. A. Silva, J. who wrotea dissenting judgment in Rasah v. Thambipillai to the effect thatwhere it is proved that lis pendens has not been duly registered,the decree should be set aside and intervention permitted agreedthat the appeal should be dismissed for the reason that it had
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been established that lis pendens has been, duly registered. There-fore, this court does not have a right to set aside the judgment/interlocutory decree by way of revision in the circumstancespleaded by the petitioner.
Getting on to the plea for relief by way of restitutio-in^integ-rum, in Perera v. Wijewickrema (6) Pereira, J. said “ From whatVoet says earlier (4.1.3) it appears to me that when restitution issought in respect of a legal proceeding, the applicant should besomebody who already has had direct connection with the pro-ceeding. ” In the same case, Ennis, J. stated : —
“ It appears clear that such an application is not grantedin Ceylon if any other remedy is available. In this case theappplicants set up fraud and collusion against the adminis-tratrix and her assignee. On these grounds an action isavailable against the administratrix and the assignee. More-over, restitution of the case will only have the effectof putting the parties in the position they were in beforejudgment was given, and the applicants here were not partiesin the case. ”
In this case section 49 grants relief to the petitioner. Secondly,since the petitioner was not a party to the action, setting asidethe interlocutory decree would not make him a party in the case,as he was not a party at the time judgment was delivered. InPerera v. Simeon Appuhamy (7) Ennis, J. stated : —
“It (this application) is made by a person who is not aparty to the proceedings in the Court below, and it isextremely doubtful whether the remedy of restitutio-in-integrum can be availed of by such a person. ”
All the decisions cited to us are cases where the parties werebefore Court on whom summons wras not served (8), or stepsfor substitution had not been taken when a party died (9), orwhere a guardian has not been appointed in terms of section493 (1) or a settlement has been affected without the leave ofCourt in terms of section 500 C.P.C. (10), or a judgment hadbeen entered against a person of unsound mind without theappointment of a manager (11). It is clear that these are caseswhere a party was already a defendant in the action and legalrequirements in terms of the C.P.C. had not been complied with.But where, as in this case, the petitioner was not before Couitat any stage of the proceedings before judgment, restitutio-in-integrvm will not lie.
CA
James v. Board of Review
12$
Counsel for the petitioner pressed before us the fact thatsome of the claimants are minors. No exception had been madein respect of minors in section 48 (1). Even where the Courtlacked jurisdiction or there was a want of due registration oflis pendens, it has been held that except for the fact that thedecree would not bind the party affected, it was not possibleto set aside an interlocutory decree. The position in this caseis far worse.
The application is, therefore, dismissed. In all the circums-tances of this case, we do not order costs.
SOZA, J.—I agree.
Application dismissed.