121-NLR-NLR-V-57-G.-G.-HENDRICK-et-al-Appellants-and-M.-PODINONA-Respondent.pdf
1954Present : Pulle, J., and Swan, J.
G. G. HENDRICK et ah, Appellants, and 31. PODINONA,Respondent
S. C. 101 and Inly. 4-1—D. C. Balapitiya, 21S
Partition action—Summons not duly screed on a party defendant— M'aiccr of irregularity—Effect on final decree.
In n partition action the appellant, who was not mentioned as a defendant inthe plaint, was ordered by Court to bo made a party. His name thereafterappeared ns one of Iho defendants and he took part in the proceedings betweeninterlocutory decree and final decree. Ho admitted tliat tlic sliarc allotted tohim in the interlocutory decree was correct.
Held, that the failure to give tlio appellant notice of the action and/or to callupon him to file a statement of claim was notan irregularity that could entitlehim to challenge tlio validity of tlio interlocutory decree. Ho was therefore-bound by the final decree.
-A.PPEALS from a judgment of the District Court, Balapitiya.
T. P. P. Goonctillcke. with B. E. de Silva, for the defendants appellants.C.liana wale, for the' plaintiff respondent.
1 22 2c. L. II. 57.
3
(19Ji) A . D. 292.
* 59 X. L. It. oil.
Cur. adv. vult-
February 12, 1954. Swas, J.—
• There aro two independent appeals in tills case. The appeal of the1st defendant is numbered 101/1953 (F) and that of the 2nd defendant44/1953 {Inty}. They have been argued together. In fact the samecounsel appeared for both appellants. For the sake of convemencoand in order to avoid confusion I shall refer to the appellant iii the finalappeal as the 1st appellant and to the appellant in the interlocutory appealas the 2nd appellant.
The appellants were sued by the respondent for declaration of title-to a certain allotment of land, for ejectment and fpr damages. Aftertrial the learned District Judge gave judgment against the 1st appellantand as the 2nd appellant was in default ordered decree nisi against her.
I shall first disposo of the appeal of the 2nd appellant. When decrconisi was served on her she appeared and took time to show cause. Theultimate result of her application was that the decree nisi was vacated andshe was allowed to file answer and contest the case. In these cir-cumstances I cannot see what cause she lias for complaint-. In my opinion 'there is no merit in her appeal and I would dismiss it with costs.
I shall now deal with the appeal of the 1st appellant. The respondentclaimed to be entitled to the land in question under and by virtue of theFinal Decree dated 10.5.1939 entered in partition suit No. 2S019 of theDistrict Court of Galle. The 1st appellant’s main defence was that hewas not bound by that decree because, though ordered to be made a partyand named in the caption, he was not served with summons. He alsopleaded a title by prescription. The learned District Judge held against-thc 1st appellant on both these issues and gave judgment for the respon-dent as prayed for but with damages at Rs. 5 per mensem from date of'decree till restoration of possession and half costs of action.
Admittedly the 1st appellant had been in occupation of the lot in dis-prnte after the Final Decree and, as this action was instituted on 19.8.49,lie had more than ton years’ possession. But the learned District Judgecame to the conclusion that his possession was not adverse to the res-pondent. In the Final Decree the respondent had been ordered to paythe 1st appellant compensation. This amount was deposited in Courtonly on 10.2.49. In these circumstances the learned District Judgeheld on the authority of Seel iris v. Dingirimenika1 that the 1st appellantcould not claim a prescriptive title.
Hr. Goonetilleke who appeared for the appellants does not challengethe proposition that possession under a jus retcnlionis is not adverse posses-sion. He based his whole argument on the invalidity of the Final Decreoas against the 1st ajjpellant. Undoubtedly, if the 1st appellant was not-bound by the decree, it could hardly bo contended that he was in occu-pation on the strength of his jus relentionis. But tho learned DistrictJudge has said in his judgment, “ I am satisfied that the defendants hacLcontinued to occupy these premises with her leave and licence as they haclno place to go to on the understanding that they were to pay the taxes. ”
I shall ignore tins finding and decide this appeal on the issue whether ornot the Final Decree was binding on the 1st appellant.
1 (/54S) 51 y.L.R. e.
Tliat the name of the 1st appellant appears in the Pinal Decree thereran be 119 question.. He is the 15Gth defendant-. That he took part inthe proceedings between interlocutory decree and final decree also cannotbo denied. Ho was, liowover, not a defendant mentioned in the plaint.There were only 10G defendants, at that stage. But his name was dis-closed by the 91st defendant and the learned District Judge who heardthe partition action ordered that he be made a party. His name there-after appears as the 15Gtli defendant. It was contended in the lowercourt that he must have been present when he was added a party defen-dant and therefore had sufficient notice of the action. But the learnedDistrict Judge who heard this case very rightly refused to accept thatcontention in the absence of proof of the 1st appellant’s presence on thatoccasion. After interlocutory decree was entered the 1st appellant sub-mitted a petition (Po) complaining that a surveyor had come to the landand “ partitioned it in Mich a way that the portion on which thepetitioner’s residing house stands was allotted to another person -whilethe petitioner was given a portion less than a perch in extent froma corner. ” He stated that he objected to the scheme and prayed thathe should be noticed before the partition was confirmed.
This petition is dated 15.3.1938. Thereafter on 8.9.3S the 1st appel-lant gave a proxy (P6) to Mr. H. de S. Kularatn? authorizing him to appearfor him and “ to Jilc all necessary papers in case No. 23,019 D. C. Galle. ”
The point I want to emphasize is that the 1st appellant did not in hispetition complain that the share allotted to him in the InterlocutoryDecree was incorrect. He only objected to the scheme of partition.Could it then be. seriously contended that the failure to give him noticeof the action and/or to call upon him to file a statement of claim uponhis being disclosed as a necessary party by the 91st defendant in conse-quence of which he was made the 150th defendant is an irregularity thatinvalidates as against him the final decree entered in the case ? Icertainly do not think so.
I11spite of the fact that he sent the petition and gave a proxy to Mr.Hidaratne “ to file all necessary papers ” I find that no further steps weretaken in that behalf either b3r the 1st appellant or by Sir. Ivularatne. Hewas given due notice (see Journal Entry P9 of 8.9.3S) of the confirmationof the scheme but did not choose to appear in person or by proctor tosupport the objection he had taken in P5. The learned District Judge inaccepting the scheme said :—“ The 1st defendant has filed no objections.He is only entitled to a very small share and it would not be possible togive him his house which stands on lot 1 ”. That was the lot to which therespondent was declared entitled. There was an appeal from the FinalDecree to which he was a party. The journal entries P10 and Pll showthat he was served with notice of appeal and with notice of security.
“ In these circumstances, ” observed the learned District Judge, “ it isfutile for him to challenge the validity of the Final Decree. ”
With that observation I am in complete agreement. Learned counselfor the appellant, however, sought to support his argument on the autho-rity of Pablis v. Euginahamy 1 in' which Dias J. held (Nagalingam J.agreeing) that where summons was not properly served on a party in a
1 (191S) SO N.Zs.lt. 31C.
partition case the court had tho power to vacate the decree even wherethe irregularity was discovered after the final decree. It is true that inthe course of his judgment Dias J. remarked that “ the final decree derivesits regularity from the interlocutory decree, which ill turn depends uponproper service of summons on the various parties to make it abinding decree. ” But tho ratio decidendi of Pablis vs. Euginahatny 2was that a court of first instance had the power to vacate a final decreeupon proof that summons was not duly served upon a party to the action.
The case of Pablis v. Euginahatny 1 is in my opinion distinguishableon material points. There tho appellant was tho 5th defendant uponwhom summons could not be personally served. Substituted servicewas ordered but was not properly served, and the ease proceeded to trialon the footing that tho substituted service was in order. After inter-locutory decree was entered lie appeared in court through a firm of proc-tors to whom he had given a proxy. He was allowed time to file objectionbut failed to do so. One member of the firm of proctors he had retainedstated to court that tho 5th defendant did not admit the correctness ofthe share allotted to him in the interlocutory decree. The learned Dis-trict Judge stated, “ the 5th defendant is bound by the interlocutorydecree and I am unable to interfere in this matter now. Dias J.observed that at that date it was not known to anybody that the service ofsummons on the 5th defendant was irregular. In the circumstances heheld that the final decree entered was not binding on the defendant.
In this case, however, the appellant did not complain in his petitionPo that he was given a smaller share in the interlocutory decree than hewas entitled to. Even in the course of this trial it was not suggested thatthe 1st appellant was prejudiced because the interlocutory decree did notallot to him his correct share or interests in the land sought to bepartitioned. Both in the lower court and here the interlocutory decreewas attacked on the ground that the 1st appellant was not served withsummons…
Non-service or improper service of summons is undoubtedly an irre-gularity, but I do not tliink that every such irregularity is necessarilyfatal to the decree subsequently entered. It was pointed out in Senanayalev. Appu and others 2 that a defendant w ho is not duly served with summons .need not appear but if he does appear his appearance cures the irregularity.
In the words of Withers J., “ The issue of summons unauthorised by thejudge’s signature and entry of date was no doubt irregular but, in myopinion, this irregularity was waived. The defendants applied for timeto file answer.” Browne J. considering the same matter remarked :—
” The object of any summons that could have been regularly issued hadbeen attained by all the defendants …. having causedappearance to be entered for them in the action as they might alwaysvoluntarily do before service on them of summons. ”„
I do not think any judgment entered for default of appearance could bevacated merely on the ground of non-service or irregular service ofsummons if in point of fact the defendant admits the plaintiff’s claim.
And that is how I interpret the 1st appellant’s application in P5 to be
1 {1948) SO -V. L. R. 348.* 2 S. O. R. 137.
allowed to object to the scheme of partition. In my opinion it is a tacitadmission that the_share allotted to him in the interlocutory decree is-correct. He entered an appearance thereafter, and was given an oppor-tunity of objecting to the confirmation of the scheme. In those circum–stanccs I would hold that ho cannot be allowed to question the validityof the interlocutory decree. On the assumption that the interlocutorydecree is in order there can be no doubt that he is bound by the FinalDecree. I would therefore dismiss the appeal of the 1st appellant withcosts.
Pulle, J.—I agree.
Appeals dismissed.