058-NLR-NLR-V-07-ISAMAILv.-SILVA.pdf
( 245 )
1904.
February 8•
Partition suit—Application of one of the parties to re-open preliminary decree—
Laches of applicant—Security for costs incurred by other parties to action—Discretion of Court to make order as lo costs.
In a partition suit. a parly applying to re-open the preliminary decree,on the ground of there being a mistake as to the share assigned to him,may be called upon to give security for the costs incurred by the otherparties, if he has delayed to ascertain his proper share and to apprisethe Court in time of the mistake.
T
HIS was an application by one of the parties to a partitionsuit to re-open a preliminary decree made on the 18th
September. 1900, on the ground that the applicant was not awareof the extient of the share assigned to him. His motion was madeon the 18th November, 1902. He claimed one:eighth share, andalleged that till the surveyor came to partition the land laj;e in(
1902 he did not know that he had been assigned' only one thirty-sixth.
The District Judge (Mr. G. A. Baumgartnef). .found that theapplicant, who was the second defendant in tfhe case, appeared on<ihe 19th September, 1899, and 'again at the trial on the 126hSeptember, 1900; that though * he was without professional
ISMAIL v. SILVA.D.C. Oalle, 5,533.
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1904.
February 8.
assistance, he was guilty of great laches in not taking thetrouble on receipt of summons to ascertain what was assigned tohim and in not filing answer setting forth his claim; that it mustbe admitted that the Court misunderstood the rights of the seconddefendant; that in view of wrong information given to the Courtupon which it signed a preliminary decree, the Court was bound tore-open the decree in order to admit of inquiry into the trueclaim of -the second defendant as decided by the Supreme Courtin D. C., Galle, 5,048 2 Browne, 320. But the Court heldthat as the second defendant might have taken his objectionby way of appeal from the decree of 18th September, 1900, or atsome earlier date before the expense of partitioning the land hadbeen incurred, it felt bound to impose the condition that he shouldgive security for Es. 200 as costs of the other parties to the action,and to order that, in the event of his failing to furnish such securitywithin three weeks from, the date of the present order (8th July,1903), the preliminary decree should not be re-opened.
The second defendant appealed.
The case came on for argument on 27th August, 1903, and2nd February, 1904, before Layard, C.J., Moncreiff, J., andWendt, J.
J. C. Pereira, for second defendant, appellant.
Cur. adv. vult.
8th February, 1904. Moncreiff, J.—
I think that no good result would be obtained by interferingwith the order appealed from. The appellant did mention,when in the box, that he claimed one-eighth of the land. But heapparently acquiesced in what was done, and although thepreliminary decree was made on 18th September, 1900, he did notmove to re-open it until 18th November, 1902.
It is true that, so long as he has the power to do so, the Judgeshould not refuse to remedy a mistake of this description; but Ido not understand that he is called upon to try.a case over and over^gainp because parties are ignorant, careless, or indifferent, withoutmaking them pay the fair price <^f the luxury. There are anumber of other parties in this partition suit. If each of them insuccession applied *to re-open the preliminary decree, the proceed-ings will never end. The remedy of a "mistake may be allowed ifcalled for in time, the party responsible for the mistake beingpunished in costs for his laches. *
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I do not find that the Judge exceeded his powers in requiringsecurity for costs, nor do I think that his order inflicts anyinjustice on the appellant.
I think that the appeal should be dismissed, and that theappellant should pay the costs of it.
Layabd, C.J.—I agree.
Wendt, J.—So do I.
1904.
February 8.
Monckeiff,
J.