Kiri Banda v. TV eerappa Chettyar
1948Present: Basnayake and Gratiaen JJ.KIRI BANDA, Appellant, and WEERAPPA CHETTYARet dl., Respondents
S. C. 47—D. C. Kandy, P 405
Partition action—Application to intervene—Interlocutory decree entered—Order-for security—Power of Court.
In a partition action the Court has power to make an order requiringthe furnishing of security before an application to intervene after inter-locutory decree is allowed.
d ^ PPEAL from a judgment of the District Judge, Kandy.
//. W. Jayewardene, with Vernon Wijetunge, for intervenient-appellant_C. E. S. Perera, with Christie Seneviratne, for defendants respondents^A. L. Jayasuriya, for plaintiff respondent.
Cur. adv. vuU.
(1916) 18 N. L. It. 353.
BASK AYABLE J.—K.iri Banda v. W eerappa Chettyar
December 3, 1948. Basnayake J.—
This is an appeal by an intervenient in a partition action against anorder permitting him to intervene on furnishing security. The order ofthe District Judge against -which he complains is as follows :
“ Intervention will be accepted provided security in Rs. 1,000 cashgiven on or before 14.10.46. Otherwise it will be rejected.”
This action was instituted on March 5, 1940, but it did not come up fortrial till February 22, 1943. On that day the learned District Judgemade order declaring the plaintiff and the first defendant entitled to theland in the proportion of Jrd and frds and directing a partition thereof.The second defendant’s appeal against that decision was dismissed bythis Court with costs on June 9, 1944. Thereafter on July 20, 1944,one D. Dhammajoti Thero moved to intervene and he was allowed to doso on depositing in Court Rs. 150 as security. His intervention wasrejected as he failed to deposit security.
Thereafter steps were taken for the final partition of the land in termsof the interlocutory decree, and on August 29, 1945, the day on which thefinal plan was filed, one M. R. Punchirala moved to intervene. Both theplaintiff and the first defendant asked for security if the interventionwas to be allowed. They also alleged that the interventions were beinginstigated by the unsuccessful second defendant. The applicant wasallowed to intervene on his giving security in Rs. 500 for the cost of theplaintiff and in a further Rs. 500 as costs of the first defendant. Thesecurity was furnished and the intervention was allowed on September21, 1945. A further intervenient appeared on May 13, 1946, and was .permitted to intervene on giving security in Rs. 500. Then on September27, 1946, the present appellant sought to intervene and the learnedDistrict Judge made the order quoted above.
On account of the far-reaching effect of a final decree in a partitionaction it has been the practice to permit persons who claim rights in theland sought to be partitioned to intervene at any stage of the actionuntil final judgment is entered under section 6 of the Partition Ordinance.The question that arises for consideration here is whether a conditionalorder can lawfully be made permitting a person to intervene in a partitionaction on his furnishing security. The Partition Ordinance makes noprovision for intervention by any person in a partition action, but section18 of the Civil Procedure Code authorises the Court to order that thename of any person who ought to have been joined as defendant be addedon such terms as the Court thinks just. It has been held by this Court1that it is lawful for the Court trying a partition action to call in aid theprovisions of section 18 of the Civil Procedure Code.
It will be sufficient for the purposes of this case if I refer to the case ofLebbe v. MariJcar 2, in which an order allowing a person to intervene in apartition action on terms was affirmed by this Court. Middleton J.says therein: “ I cannot find anything in the Partition Ordinance, Ho. 10
Peries v. Pereira (1896) 1 N. L. R. 362.
Ratwatte v. Banda (1892) 1 S. O. R. 345.
Lebbe v. Mar Hear (1910) 4 Leader Law Reports 126.
(1910) 4 Leader Law Reports 126.
BASNAYAKE J.—Lapaya v. Sxirivwamie
of 1863 which excepts proceedings in partition from the rules of procedurelaid down in the Civil Procedure Code relative to civil actions so far asthey may he applicable Tinder the circumstances, even if proceedings inpartition are not strictly speaking actions as being proceedings for theprevention or redress of a wrong (section 5) they may, I think, be deemedapplications for relief from joint ownership obtainable through theexercise of the Court’s power (section 6). I think also that under section 4this Court has impliedly power to sanction procedure on the lines laiddown in section 18 as applying to partition proceedings.”
As the order of the learned District Judge is one which he had power tomake the only question that remains to be determined is whether he hasproperly exercised his discretion in determining the amount ofsecurity.
The history of this case which I have set out briefly shows that theproceedings have been unduly prolonged by repeated interventions afterthe dismissal of the second defendant’s appeal. The intervenient-appellant does not in his affidavit explain why he did not come into courtall these years. The appellant cannot complain that the terms imposedon him are exceptional for earlier intervenients have also been placed onlike terms. In the circumstances I am not prepared to say that theamount of security fixed by the learned District Judge is unreasonable.
The appeal is dismissed with costs.
Gbatxaen J.—I agree.
KIRI BANDA, Appellant, and WEERAPPA CHETTYAR et al., Respondents