MUTTUCUMARASAMY, Appellant, and SATHASIVAM et al., Respondents

016-NLR-NLR-V-53-MUTTUCUMARASAMY-Appellant-and-SATHASIVAM-et-al.-Respondents.pdf


Muttueumarasamy v. Sathasivam
97
1951Present : Jayetlleke C.J, Basnayake J. and Pulle J.MUTTUCUMARASAMY, Appellant, and SATHASIVAM et al.,
Respondents
S. C. 543—D. C. Point Pedro, 2,872
Partition action—Abatement order by Court ex mero motu—When Court, may setaside such order—Alienation or hypothecation of co-owner's share after abate-ment of action—Validity thereof—Partition Ordinance (Cap. 56), 8. 17—CivilProcedure Code (Cap. 86), ss. 402, 403, 405.
Held," (Basnayake J. dissenting), (i) that .an action under the PartitionOrdinance is liable to be abated under section 402 of the Civil Procedure Code.
that such order of abatement can be made by the Court ex mero molu.
that the imperative provision in section 405 of the Civil Procedure Codewhich contemplates not an ex parte but an inter partes proceeding before anorder of abatement is set aside is to make an ex parte order a nullity.
that a partition action comes to an end when a reasonable time haselapsed since an order of abatement under section 402 of the Civil ProcedureCode was made and no action has been taken to have the order of abatementset aside under section 403 read with section 405. A co-owner’s alienation orhypothecation, thereafter, of his undivided share of the subject'matter of thepartition action is, therefore, not obnoxious to section 17 of the PartitionOrdinance.
.^.PPEAL from a judgment of the District Court, Point Pedro. Thiscase was referred to a Bench of three Judges, owing to a difference ofopinion between the two Judges before whom it had been previouslylisted.
V. Ranawake, with A. Nagendra, for the plaintiff appellant.—Thequestion for the decision of this Court is the preliminary question whetherthe deed 4D5 executed on February 14, 1934, is inoperative because itwas executed during partition action No. 13199 of the Court of "Requestsof Point Pedro. That action was instituted on September 13, 1909, andinterlocutory decree was entered on September 22, 1910. No steps weretaken thereafter and on September 6, 1911, the Judge, acting undersection 402 of the Civil Procedure Code, made an order of abatementex mero motu, without notice to parties. This order was set aside onNovember 25, 1912, on the application of the plaintiffs’ proctor, withoutnotice to parties.
It is conceded that the order of abatement was' good—Lorenzu Appu- .hamy v. Paaris 1 ; Suppramaniam v. ' Symons 2. It is also submitted thatthe order vacating the order of abatement was also good and that section17 of the Partition Ordinance was therefore operative. The vacatingorder, if bad, has been acquiesced in by the parties. It can only be setaside in the proper way. If the Court had jurisdiction a bad order is goodtill it is set aside.
» (1008) 3 A. C. B. 171.* (1915) 18 N. L. B. 229.
4J. N. B 69182 (10/67)
93
■TAYF/TTT/FtK K C.J.—MutLucumarasamy v. Sathasivam
[ J ayrtlleke C. J.:Did the Court have jurisdiction to vacate the
abatement order without noticing all parties under section 405 of theCivil Procedure Code?]
The parties were already on the record. The procedure of giving noticeis only incidental. The failure to give notice is therefore only anirregularity—Muttumenika v. Muttumenika ’.
In certain circumstances a partition action can be regarded asabandoned—Lnwaris v. Kirihamy s.
[Jayetjleke C.J. referred to Eastern Garage and Colombo Taxi CabCo. v. Silva *.]
It was not considered in that case that the Court can make an order olabatement ex mero motu.
In Allahakoon v. Wickremesinghe * it was held that an order of
abatement only causes a case to be removed from the list of pending cases,
and in Kamela v. Andris 5 it was held that such an order operates as
res judicata. See also Appuhamy v. Babun Appu 6, where an alienation
of a divided block after a scheme of partition was submitted but before
final decree was held- to be void as being obnoxious to section 17 of the
Partition Ordinance.
*
E. B. Wikramanayake,K.C., with V: Arulambalam, for the '4th
defendant-respondent—The order of abatement is good. The word“ may ” in section 402 of the Civil Procedure Code givers the Judge adiscretion to pass an order of abatement. An application to Court is notnecessary as the Code does not say that an application should be, made.Suppramaniam v. Symons {supra) has been approved in Selamma Achie v.Palavasam 7.
If a party makes an application, then section 405 applies and allparties to the action must b'e made respondents. Under section 402,although it may be safe to notice the parties, the section does not itselfsay that notice is necessary. Although the order of abatement is goodthe order vacating the order of abatement is bad. Because no noticewas given the Court had no jurisdiction to pass the order vacating theorder of abatement—H. C. Fernando v. Thambiraja 8 ; Edward v. deSilva 9 ; Manomani v.' Velupillai 10.
C. V. Ranawake, in reply.—There is a difference between “ noticeand “ summons ”. Manomani v. Velupillai {supra) is therefore dis-tinguishable. See further Jayewardene : Law of Partition, p. 308 et seq.
Cur. adv. vult.
October 10, 1951. Jayetilbke C.J.—
This appeal came up for hearing before my brothers Basnayake -andPulle. At the hearing before, the question arose whether Deed No. 2193dated February 14, 1934 (4D5) was executed during the pendency ofpartition action No. 13199 of the Court of Bequests of Point Pedro (P18)
1 (1915) IS N. L. B. 610.8(1923126N. L.B.370.
(1914) 3 Bed. N. C. 38.7(1939)41N. L.B.186 ed p. 188.
» (1924) 2 Times 166.8(1946)46N. L.B.81.
(1908) 4 A. C. B. 8.•(1945)46N. L.B-342.
(1939) 41 N. L. B. 71.18 (1949) SO 27. u. B. 289.
JAYATIliEKE1 C.J.—BtuttucvmaTasamy o. Sathacivam' 99
and is therefore void. As they were unable to reach an agreement on thequestion I referred it for consideration by a bench of three Judges. P 18was instituted on September 13, 1909. Interlocutory decree was entered•on September 22, 1910, but as no steps were taken thereafter by theplaintiff or by any of the defendants to issue's commission under s. 5 ofthe Partition Ordinance (Cap. 56) the learned Commissioner passed anorder under s. 402 of the Civil Procedure. Code (Cap. 86) on September 6, *
that the action shall abate ex mero motu. On November 1,
the proctor for the plaintiff applied under s. 403 of the Civil Pro-cedure Code fort an order to set aside the said order for abatement on theground that the plaintiff did not take any steps after the interlocutorydecree was entered because the defendants agreed to an amicablepartition of the land. That application was allowed by the Commissioner.Counsel for the appellant conceded, I think rightly, that the Commissionerhad the power to enter an order of abatement ex mero motu. In Suppra-maniam v. Symons 1 Wood Renton C.J. said: —
“ I desire, however, to say something upon an argument which wasadvanced by the plaintiffs’ Counsel at the hearing of the appeal. Hesaid in effect that if the parties to a litigation of this description werecontent to allow it to slumber, neither of them suffered any prejudice,and it was no concern of Courts to interfere. I entirely dissent fromthat proposition. People may do what they like with their disputesso long as they do not invoke the assistance of the courts of law. Butwhenever that step • has been taken, they are bound to ^proceed withall possible and reasonable expedition, and -it is the duty of their legaladvisers and of the Courts themselves to see that this is done. Thework of our Courts must be conducted on ordinary business principles,and no Judge is obliged, or is entitled to allow the accumulation uponhis cause list of a mass of inanimate or semi-animate actions. Wewere referred by Counsel to the older decisions—see Fernando v.Curera 2, Fernando v. Peris 3 and Gave & Go. v. Erskine 4—to the effectthat a Court cannot act under the provisions of section 402 of theCivil Procedure Code, except on the application of the defendantand on notice to the plaintiff. These decisions have, however,been strongly dissented from in recent years both in reported and inunreported cases. "It is now, I believe, the practice in many of theDistrict Courts for the Judge himself to take the initiative and passorders of abatement under section 402 after having given due publicnotice -of his- intention to do so7~ No hardship is caused by this practice,as it is always open to an aggrieved person to move the Court undersection 403, and any attempt to interfere with its existence or growthon the authority of old cases above referred to is very strongly to bedeprecated. ”
The' order setting aside the order of abatement was made withoutnotice to the defendants. Section 405 reads: —
. “ The application under section 398 may be made ex parte, but in allother applications for the exercise of the discretion of the court under
1 {1915) 18 N. L. R. 230.3 (1897) 3 N. L. R. 77.
* (1896) 2 jV. L. R. 29.• (1902) 6 N. L. R. 338.
100JAYETILEKE C.T.—Muttucumarasamy «. Sathasivam
this Chapter all the parties to the action, not being applicants, or suchof them as may be affected by the order sought, must be made res-pondents on the face of the application.
The application for an order to set aside the order for abatement is“ an application for the exercise of the discretion of the Court ” withinthe meaning of s. 405. When an application is made to revive anaction under s. 403 the applicant has to satisfy the Court that he hadsufficient cause for not taking timely steps to continue the action. Thesection says that all the parties to- the action must be made respondentson the face of the application. The word “ must ” has to be construedimperatively. The object of that provision is clearly to give the partiesnotice' of the application so that they may appear and show cause againstthe order of abatement being set aside. The effect of the plaintiff’sfailure to give notice to the defendants of his application to have theorder of abatement set aside is to render the proceedings void. Theorder made by the Commissioner must, therefore, be regarded as nothaving been made. The resulting position is that the order of abatementmade on September 6, 1911, remained in force.
It was argued that an order of abatement does not amount to a refusalto grant the application for partition or sale within the meaning of s. 17of the Partition Ordinance. This question was considered in the caseof Bulner v. Rajapaltse *. In that case a partition action proceeded to thestage of an interlocutory decree which was entered in March, 1911.In May, 1911, as none of the parties had taken steps to procure the issueof a commission, the Court made the following order:
“ No Commission issued. Lav over ”.
Thereafter by a deed dated January 31, 1919, the defendant purchasedcertain shares of the land belonging to a party to the action. On March 6,1924, on an application to withdraw the action the Court passed thefollowing order:
“ This action was laid by on May 24, 1911. No steps have beentaken since that date to prosecute the action. Action abated.
By deed dated March, April and June, 1926, the plaintiff purchasedthe same interests that had been conveyed to the defendant in 1919.In a contest between the plaintiff and the defendant it was held that theplaintiff’s deed which was executed after the order of abatement wasentered was not obnoxious to s. *17. Garvin A.C.J. said in the courseof his judgment: —
" But an order of abatement does amount to a final determinationof the action when upon application to set it aside the Court refusesto do so. The same effect may be claimed' from it when a reasonabletime has elapsed since the making of the order and no action has beentaken to set it aside. In the case before us the plaintiff took no stepsin the action for nearly 13 years. The order of abatement enteredthereafter on March 4, 1924, was made upon the application of theplaintiff for a dismissal of the action. Since then over two years
» (1926) 28 N. L. R. 260.
BASNAYAKE J.—Muttucumarasamy v. Sathasivam
101
have elapsed. Under the circumstances the effect of a decree finallyterminating a partition action may, I think, be claimed for the order,and that effect may be claimed for it as at the date on which it was made.The failure to take steps to set it aside within a reasonable time givesrise to the inference that the order was well-founded and no reasonfor setting it aside existed. ”
If I may say so with respect, the observations of Garvin A.C.J. whichI have quoted seem to me good sense as well as good law and I have nohesitation in applying them to the facts of the present case and holdingthat the order of abatement'entered on September 6, 1911, amounts to afinal determination of the action inasmuch as a reasonable time haselapsed since it was made and no action has been taken to set it asideunder s. 403 read with s. 405 of .the Civil Procedure Code. The deed4D5 is, therefore, not void under s. 17 of the Partition Ordinance.
The appeal will be listed for further argument before my brothersBasnayake and Pulle'or any other bench of two Judges to consider anyother questions which may arise in the appeal. The costs of thisargument will abide .the final result of the appeal.
Basnayake J.—
This appeal was first argued before my brother Pulle and myself. Wedid not agree as to the decree which should be passed by the Court andit has been re-heard by a Bench of three Judges presided over by MyLord the Chief Justice. I have had the advantage of reading hisJudgment, and as I find myself unable to agree with the conclusionreached by him, I set out my reasons for holding that the appeal shouldbe allowed.
The only question that arises for decision in this appeal is whether deedNo. 2193 of 14th February, 1934, (hereinafter referred to as 4D5) has been. executed contrary to the prohibition contained in section 17 of thePartition Ordinance. The learned Commissioner of Bequests has heldthat it is not obnoxious to that section. The present appeal is fromthat decision.
Section 17 reads:“ Whenever any legal proceedings shall have been
instituted for obtaining a partition or. sale of any property as aforesaid,it shall not be lawful for any of the owners to alienate or hypothecatehis undivided share or interest .therein, unless and until the court beforewhich the same were instituted shall, by its decree in the matter, haverefused to grant the application for such partition or sale, as the casemay be ; and any such alienation or hypothecation shall be-void.
It appears from the evidence that an application for partition of theproperty dealt with in the deed hadT been made on 13th September, 1909.Interlocutory decree was entered on 22nd September, 1910. On 5th Sep-tember, 1911, an order of abatement was made by the Court ex mero motuwithout notice to the parties and on 25th November, 1912, that order wasset aside on the application of the plaintiff. On 27th November, 1912,steps were taken for the issue of a commission to partition the land.After 22nd January, 1913, the action lay dormant till 10th February, 1937.
102BASNAYAKE J.—Muttucumaraeomy v. Sathasivam
The decisions of this Court are to the effect that in a partition, actionan order of abatement under section 402- of the Civil Procedure Code has-the effect of a decree refusing the application for partition. In peris et al.v. Perera 1 Bonser C.J. incidentally said:
• ‘ An interlocutory decree for partition, unless proceeded with, isuseless for all purposes. It would not even support a plea of resjudicata. Where such an interlocutory decree has been made, butnot proceeded with, provisions of section 402 of the Civil ProcedureCode should be applied by the Court and its roll cleared of the action. ”Later in the case of Lawaris v. Kirihamy *, de Sampayo J. whileassuming that the Court had power to clear its roll of a partition actionby entering an order of abatement, extended section 17 of the PartitionOrdinance to actions which may he deemed to have been abandoned.He appears to have done so without reference tc the precise words ofthat section. This is what he says :
"Now, after more than ten years'the institution of the action isput forward as invalidating all alienations. thereafter. In my opiniona partition action in order to have that effect must be alive undercircumstances similar to those applicable to a case of lis pendens.If this were an ordinary question of lis pendens I should say that theaction not being actively and constantly prosecuted was no longerpending …. The 4th defendant was – content to have herrights decided in this case on their merits, and her whole attitudeconfirms me in the opinion that the previous partition action wasabandoned and cannot be considered to have the effect of invalidatingthe alienations made on that footing. ”
In the case of Babiyale v. Nando et al. 3, Ennis J. refrained from applyingthe rule enunciated by de Sampayo J. that an action not actively andconstantly.prosecuted is no longer pending. His opinion is thus expressedin the judgment:
“ If, then, the Court can refuse to grant the application at any timebefore final decree, the terms of section 17 of the Ordinance prohibitany alienation till then, and declare any such alienation void. In thecircumstances I do not see any room for the application of the rule oflaw that an action not actively and constantly prosecuted is no longerpending.-”
Garvin A.C.J. who found considerable difficulty in holding that anorder of abatement amounted to a decree refusing the application for apartition went on .to express the view, in Bulner v. Rajapakse et al. *, thatan order of abatement amounts to a final determination of the actionwhen upon application to set it aside the Court refuses to do so, and thatthe -same effect may be claimed for an order of abatement when a reason-able time has elapsed since the making of the order and no action has beentaken to set it aside.
With the greatest respect to the learned and eminent judges who tookpart in the decisions I have referred to above, I find myself unable to
(1896) 1 N. L. B. 362.• (1915) 18 N. L. B. 370.
(19id) 3 Balasingham’s Notes of cases 38.4 (1926) 28 N. L. B. 260.
BASNAYAKE J.—Mut&ucvmarasamy v. Sathasicam108
subscribe to their views as to the meaning and effect of section 17 of theOrdinance and I say so with all humility. Those decisions do not showthat sufficient regard has been paid to the specific words of section 17.Section 17 is framed in precise and clear language. It. says that, urUossand until the court before which the action was instituted shall, by its decreein the matter, have refused to grant the application for such partition orsale, as the case may be, any alienation or hypothecation contrary to .theprohibition therein shall be void. Can the duration of the prohibitionbe couched in more exact terms ? An order of abatement or its equi-valent finds no place in .the sure and certain terms of the section. It maybe highly desirable that the scope of the section should be enlarged bystating that an order of abatement shall be deemed to be a decree refusingto grant the partition or .that inaction on the part of the plaintiff for areasonable period shall be deemed to have the same consequence. Butthe function of the Court is to interpret the section as it stands anddeclare what is its meaning. Clear words such as are found in section 17require no interpretation—Absoluta sehtentia non indiget. exposit.ore(2 Inst. 533)—and must be given their effect regardless of the conse-quences. If the words of a statute are clear and unequivocal the Courtmust give effect to them and is not entitled to refrain from doing so fromany notions which may be entertained by the Court &s to what is just orexpedient *.
Apart from the fact that the language of section 17 of the Ordinancedoes not permit the inclusion therein of orders other than a decree ascontemplated there5" sections 402 and 403 of the Civil Procedure Codeseem inapplicable to proceedings under the Ordinance. In a suit forpartition of land once the libel is filed it is open to any party thereto toproceed with the action, especially after interlocutory detree has beenentered. If no steps are taken after interlocutory decree, how can it thenbe said that it was the plaintiff and not the defendant or defendants whoomitted to take a step which is necessary? For, section 5 of the PartitionOrdinance provides that any party to suit for partition may apply forthe issue of a commission for partition. The word “ necessary ” insection 402 has been construed l)y this Court to mean “ rendered necessaryby some positive requirement of law ” 2. There are other difficulties inthe way of applying section 402 to proceedings under the PartitionOrdinance. Section 403 empowers only the plaintiff or the person-claiming to be the legal representative of a deceased or insolvent plaintiffto ask that the. order of abatement be set aside. It is not .the plaintiff• alone that is interested in an action for partition of land. The defendantsare equally interested. There may also be intervenients who are as•interested as the plaintiff ? Must all these persons suffer for the negli-gence of the plaintiff? Once an action abates under Chapter XXV, nofresh action shall be brought on the same cause of action. Must then theco-owners for all time hold in common the property in respect of which-the action which abated was instituted ?
1 {1933) A. C. 680—New Plymouth Borough Council v. Taranaki Electric Power Board"
* Lorenau Appuhami et al. «. Paoris et al. (1908) 11 N. L. B. 202, Ktcda Banda o.Hendrick et al. 6 Weerdkoon 42-43.
10|BASNAYAKE J.—Muttucumarasamy v. Sathasivam
Apart from all these considerations the order of abatement has beenmade without notice to any of the parties, not even the plaintiff. It hasbeen held, by this Court that an order of abatement in a partition actionshould not be made ex mero motu without due notice to the plaintiff l, andthat an order of abatement made without notice to the plaintiff must beregarded as not having been entered 2. With those decisions I am inrespectful agreement. Even if it is conceded that an order of abatementmay be properly made in a partition action, the order of abatement inquestion is bad and cannot operate as a decree refusing’ the applicationfor partition.
The deed 4D5 is therefore obnoxious to section 17 of the Ordinanceand void.
There is another reason for holding that the deed 4D5 is void.Assuming for the moment that the order of abatement is one that wasproperly made, it cannot be said to be in force as it has been set asidethough without notice to the parties. Section 405 of the CivilProcedure Code provides that^ the application under section 398 maybe made ex parte, but in all other applications for the exercise of thediscretion of the Court under this Chapter all the parties to the action,not being the applicants, or such of them as may be affected by theorder sought, must be made respondents on the face of the application.It is not disputed that • the order of abatement was set aside on theapplication of the plaintiff’s successor in title and without notice tothe other parties. Now what is the effect of non-compliance withsection 405 ? The answer to that question depends on whether theprovision is imperative or- directory. The section does not requirethat all the parties to the action should necessarily be made res-pondents. The applicant is' given an option, either to name all theparties to the action or such of them as may be affected by the ordersought. • The determination of the persons who fall into the lattercategory is left to the judgment of the applicant. It is just possiblethat however honestly he may approach the question of selectingthose who are affected by the order sought, the applicant might makea mistake and omit to make a person affected by the order a res-pondent. Is such an error of judgment to be fatal to the order madeon the application ? That would be the result if the requirements of thesection were regarded as imperative and not directory. The submissionof counsel for the respondent is that .the failure to give notice in termsof the section renders the order of Court a nullity. I am unable to accedeto that submission. In considering provisions of the nature of section405, I think it is necessary to differentiate between proceedings or orderswhich are nullities and proceedings or orders in respect of which.there hasbeen nothing more than an irregularity. An irregularity can be waivedbut in the case of proceedings or orders which are a nullity they areab initio void and nothing can be done to restore them. This topic isthus referred to in the case of Fry v. Moore 3 : —
“ But there arises the question whether the order' for substitutedservice was a nullity, rendering all that was done afterwards void, or1 AUahakoon v. Wickramasinghe (1908) 4 A. C. R. 8.
* Eastern Oarage <Se Colombo Taxi Cab Co. v. de Silva (1924) 2 Times 166.
» (1889) 23 Q. B. D. 395 at 398 ; 58 L. J. Q. B. 382.
PDUjE J.—Mutlticumarasamy v. Sathasivam
105
whether it was only an irregularity.' If it wsb the latter, it could bewaived by the defendant. I shall not attempt .to draw the exact linebetween an irregularity and a nullity. It might be difficult to do so.But I think that in general one can easily see on which side, of theline the particular case falls, and in .the present case it appears to methat the proceeding was rather an irregularity than a nullity.The
writ was properly issued, but it was improperly served, and I am notprepared to say that by no subsequent conduct of the defendant theirregularity could be waived.”
In the case of Craig v. Kanseen l, Lord Greene M. R. stated theproposition of law thus :
” An order which can properly be described as a nullity is somethingwhich the person affected by it is entitled ex debito justitiae to haveset aside. So far as the procedure for having it set aside is concerned,it seems to me that the court in its inherent jurisdiction can set asideits own order ; that an appeal from that order is not necessary.”
In the instant case all the defendants except the 3rd defendant appear-to have been aware of the order setting aside the order of abatement butraised no protest and it was the 2nd defendant who long afterwards on10th February, 1937, made an application for a commission under section 5of the Partition Ordinance on the footing that the order of abatement hadbeen set aside. In my opinion the failure to notice the parties who shouldbe noticed under section 405 of the Civil Procedure Code is an irregularityrendering the order made without notice liable to be set aside at theinstance of the aggrieved party. Such failure can be waived by thepai-ty affected by the order. Even a judgment or order which the personaffected is entitled ex debito justitiae to have set aside cannot be treatedas if it did not exist on the record. Until it is either declared to be anullity or set aside by a court of competent jurisdiction, it is binding onthe parties.
For the foregoing reasons I am of opinion that the appeal should be■allowed with costs.
Pulle J.—
I concur in the opinion expressed by my Lord, the Chief Justice thatthe deed marked 43D5 dated February 14, 1934, is not void under section
17 of the Partition Ordinance.
The authorities are clear that an action under the Partition Ordinanceis liable to be abated under section 402 of the Civil Procedure Code.There is not even an expression of doubt on this point in any of theauthorities that were cited to us at the argument. • That an order ofabatement can be entered in a partition case is implicit in the judgmentof Ennis, J., in Babiyale v. Nando 2 who stated, “ It was urged that theCourt should make a nunc pro tunc order – of abatement of the earlieraction. In my opinion it would not be right to make such an order,even if it could be done, for the purpose of rendering valid an alienation•of land which the Partition Ordinance declares void.”
1 (1943) 1 AU E. R. 108 at 113.* (1915) 18 N. L. R. 370.
106
In re Anges Nona
There has been a divergence of judicial opinion as to whether an orderof abatement can be made ex mero motu. On this point I prefer to followthe judgments of Wood Renton, C.J., and Ennis, J., in Suppramanianet al. v. Symons et al. Wood Renton, C.J., expressly dissented fromthe cases of Fernando v. Peris 2 and Gave & Go. v. Erskine 3 which formedthe basis of .the decision in Allahakoon v. Wickremasinghe *. I wouldrespectfully adopt the interpretation placed on section 402 by Ennis, J.,.in Suppramanian et al. v. Symons et al. 23 that there is nothing in thesection which prohibits the Court from acting ex mero motu.
In regard to the order of the 25th November, 1912, setting aside, onthe ex parte application of the plaintiff, the order of abatement enteredon the 5th September, 1911, I have little to add to what my Lord, theChief Justice, has stated in his judgment. The imperative provision in-section 405 which contemplates not an ex parte but an inter partesproceeding before an order of abatement is set aside is to make an ex-parte order a nullity.
I agree that the appeal should be set down for further hearing, if;necessary, on the other questions raised by the appellant.
Appeal to be set down for further hearing.