Pablis v. Uztginahamy
1948Present: Dias and Nagalingam JJ.PABLIS, Appellant, and ETJGINAHAMY et al., Respondents
S. C. 49—D. G. Negorribo, 13,434
Partition action—No 'proper service of summons on a party—Irregularitydiscovered after final decree—Party not bound by such decree.
Where summons in a partition action is not properly served on aparty, such party is not bound by the final decree in the case. The•Judge can vacate such decree even where the irregularity has been,discovered after final decree was entered.
DIAS J.—Pablis v. Euginahamy
jA-PPEAL from a judgment of the District Judge, Negombo.
C. R. Qooneratne, for fifth defendant appellant.
H. A. Koa.tte.goda, for plaintiff respondent.
Cur. adv. milt.
September 2, 1948. Dias J.—
This is a partition action. The following are the material facts —
The proceedings began in May, 1945. The fifth defendant could notbe served with summons. The plaintiff moved for and obtained anorder for substituted service of summons on him. The process server’saffidavit dated January 29, 1946, shows that he merely affixed a copy ofthe summons and the plaint to a coconut tree on the land. On January31, 1946, the journal entry reads “ Summons is served on second, fourth,fifth and eighth defendants by substituted service …. Theyare absent ”. The trial took place in September, 1946, and interlocutorydecree was entered. A commission was issued for the partition of theland. On January 24, 1947, the surveyor’s plan was received, and theCourt ordered notice to issue on all parties in order to enter final decree.
On March 21, 1947, the Fiscal reported that the fifth defendant couldnot be served with this notice. Fifth defendant, however, appearedin Court, and Messrs, de Zoysa & Loos filed his proxy, and notice ofobjections was given. Time was allowed to the fifth defendant to filehis objections on April 18, 1947. On that day the fifth defendant filedno objections, nor was any extension of time asked for. Final decreewas therefore entered. The Judge, however, made thefollowing minutein the journal: " I note that Mr. de Zoysa states that his client (fifthdefendant) has not been given the correct share in the interlocutorydecree. Fifth defendant is bound by the interlocutory decree, and Iam unable to interfere in this matter now ”.
What that order means is clear. At that date it was not known toanybody that an irregularity had occurred in the service of summonson the fifth defendant. The proctors for the fifth defendant apparentlyhad not been instructed that summons in the action had not been per-sonally served on their client. Everyone believed, erroneously assubsequent investigations have shown, that there had been • a propersubstituted service of summons on the fifth defendant. That is why theDistrict Judge recorded that the fifth defendant is bound by the inter-locutory decree and entered the final decree.
Thereafter the irregularity was discovered. There is an affidavitdated May 19, 1947, and a petition bearing date May 20, 1947, in whichthe point is expressly taken that no notice of the action had been givento the fifth defendant. The Judge .ordered the case to be called on May26, 1947, and thereafter on June 23, 1947. On the latter date it isrecorded that the “ Plaintiffs and respondents have no objection ”.The plaintiff however appears to have thought better of it, for he filedobjections. The matter came up for inquiry on August 29, 1947. The
DIAS J.—Pablia v. Euginohomy
District Judge held that there has, in fact, been no proper substitutedservice of summons on the fifth defendant. He nevertheless refused togive him any relief to appear and prove that he was entitled to a largershare in the land than has been allotted to him on the ground that he hasappeared after the interlocutory decree was entered and although giventhe opportunity to do so, he failed, before the final decree was entered,to file any objections to the interlocutary decree and other proceedingson the ground that the procedure was irregular and that substitutedsummons had not been duly served on him. He, therefore, held that thefinal decree was entered inter partes and is binding on the fifth defendant,who appeals from that order.
Section 3 of the Partition Ordinance directs that summons shall beserved upon the defendants or such of them as can be found, or if theycannot be found, upon the person or persons in the actual possession ofsuch property, “ or if there be no person in possession, in such manner asthe Court shall direct *’. The District Judge has found as a fact that therehas been no proper service or substituted service of the summons on thefifth defendant. He was not resident on the land, but in anotherlocality. There was no person on the land who could be served withsummons on his behalf. The Court gave no directions as to the maimerin which the substituted service was to be effected. Therefore to affixthe process and a copy of the plaint to a tree on the land cannot beregarded as a proper substituted service.
The law on this point is fully set out in Jayewardene on Partition atpages 65 et seg. The requirements of section 3 must be strictly followed,otherwise even a final deceee is liable to be set aside at the instance of aparty who proves that its provisions have not been observed—JuanPerera v. Stephen Fernando1, Caldera, v. Santiagopillai2, Thambirajah v.Sinn amnia3. In the last case Maartensz J. following Caldera v. Santiago-pillai held that a Court of first instance had power to vacate a final decreein a partition action upon proof that summons had not been servedupon a party to the action.
The question then is whether the relief claimed by the fifth defendantcan be denied him simply because he only discovered the irregularityafter the final decree had been entered ? The final decree derives itsvalidity from the interlocutory decree, which in turn depends upon the•proper service of summons on the various parties to make it a bindinginter partes decree. No question of estoppel arises in this case. In myopinion the fifth defendant is entitled to the relief he seeks. To denyhim that relief would be an injustice. The plaintiffs apparently thoughtso too, because they first agreed to the application, but later thoughtbetter of it. Once it is conceded that there has been no proper serviceof summons on him, the fifth defendant is not bound by the final decreewhich has been entered ex parte against him.
I would therefore allow the appeal with costs.
Nagalxngam J.—I agree.
1 (1920) 22 N. L. R. 155.
» (1935) 36 N. L. R. 442.
* (1902) 3 Sr. 5.
PABLIS, Appellant, and EUGINAHAMY et al., Respondents