052-SLLR-SLLR-2006-V-2-RANASINGHE-AND-ANOTHER-vs.-GUNASEKERA-AND-ANOTHER.pdf
CA
Ranasinghe and Another Vs. Gunasekara and Another
393
RANASINGHE AND ANOTHERVS.
GUNASEKERA AND ANOTHER
COURT OF APPEAL.
SOMAWANSA., J. (P/CA).
WIMALACHANDRA. J.
CA 329/02.
DC HOMAGAMA 3304/P.
MARCH 8. 16, 2004.
OCTOBER 31, 2005.
DECEMBER 2, 2005.
Partition Law 21 of 1997 sections 48 (3), 49, 69 – Partition Act, 16 of1951 sections 48(3) compared – No rights at the time of interlocutorydecree – Is Restitutio available ?- Addition of parties – when? Lispendens – Improper registration or non registration -Its effect on thefinality of the partition decree-Change in the law – Resulting effect?
The petitioners sought to set aside the interlocutory decree and thefinal decree and further sought an order to permit them to enter thepartition case. The petitioners however did not have rights at the timeof the entering of the interlocutory decree and they were not parties tothe action. The petitioners also contend that the Ms pendens is notregistered in the correct folio.
HELD:
Only persons who have rights or who are claming aninterest in the land can apply to be added as parties;however once judgment is delivered no party can beadded. The petitioners in any event have acquired theirrights after the judgment was delivered.
Relief by way of Restitutio in integrum could not be grantedas the petitioner had not been a party to the action.
394
Sri Lanka Law Reports
(2006) 2 Sri LR.
Furthermore, there cannot be restitution as the petitionerscould not be restored rights which they did not have at thetime the judgment was entered.
The effect of non registration or improper registration of alis pendens on the finality of the interlocutory decree andthe final decree under 48(3) of the Partition Act No. 16 of1951 is no more in the Partition Law section No. 21 of1977. The provisions in section 48(3) of the Partition Actstates that the non registration or improper registrationof a lis pendens is a ground of assailing the final andconclusive character of a partition action has beenremoved and is not available in the Partition Law No. 21of 1977.
The resulting effect of the charge in the law is that nonregistration or improper registration of the lis pendens isno more a ground of challenge to the conclusive effect ofthe partition decree.
Petitioners are not without a remedy section 49(1)APPLICATION for Revision and or Restitutio in integrum.
Cases referred to :
Perera vs Wijewickrema at 15 NLR 411
Dissanayake vs Elsinahamy 1978 – 79 -2 Sri LR 118
Perera vs Simion Appuhamy 15 NLR 411
Noris vs Charles
Minchinahamy vs Muniweera 52 NLR 409
Ranjan Suwandaratne with Mahinda Nanayakkara and NeomalSenathilaka for petitioners Nihal Jayamanne PC with Ms. NooraniAmerasinghe for 1st plaintiff – respondent and defendant respondent.
Cur.adv.vult.
CA
Ranasinghe and Another Vs. Gunasekara and Another
(Wimalachandra, J.)
395
May, 19 2006WIMALACHANDRA J.
This an application in Revision and Restitutio in Integrum filed bythe petitioners seeking the following main relief:
to set aside the interlocutory decree and the final decreeentered in the District Court of Homagama Case No.3304/P.
to permit the petitioners to enter into the said partition actionNo.3304/P to establish their interest to the corpus of thesaid partition action!
The plaintiff -respondent (plaintiff) instituted the above mentionedpartition action bearing No.3304/P against the defendant -respondent on 27.05.1996 to partition the land calledDugodellawatte alias Millagahawatte which is in extent of 1 Roodand 10.5 perches together bearing assessment No. 168.
After trial the judgment was delivered on 23.22.1999 holding thatthe plaintiff and the defendant are entitled to 1/2 share each.Thereafter the interlocutory decree was entered on 14.01.2000 andon 20.07.2000 the final decree was entered. The petitioners statethat the plaintiff – respondent and the defendant -respondent hadacted in collusion and obtained the aforesaid property forthemselves. The petitioners claim ownership to the aforesaidproperty by deed No. 13220 dated 17.09.1999. Accordingly, it isseen that the interlocutory decree, which was entered on
Therefore it is very clear that the petitioners did nothave any rights to the property at the time the interlocutory decreewas entered. It is common ground that the petitioners were notparties to the aforesaid partition action.
The petitioners have sought to set aside the interlocutory decreeand the final decree entered in this partition action No. 3304/P and
396
Sri Lanka Law Reports
(2006) 2 Sri LR.
also sought permission to intervene in the said partition action toestablish their interest to the corpus. However they have not soughtto have the judgment set aside. In terms of section 69 of thePartition Law a person can be added as a party to the action onlybefore the judgment is delivered.
Section 69(1) reads as follows
“The Court may at any time before judgment isdelivered in a partition action add as a party to theaction, on such terms as to payment or prepaymentof costs as the court may order –
any person who, in the opinion of the Court,should be, or should have been, made partyto the action, or
any person who, claiming an interest in theland, applies to be added as a party to theaction.”
.Therefore, it can be seen that a person can be added as a partyonly before the judgment is delivered and not afterwards. Besides,only persons who have rights or who are claiming an interest in theland can apply to be added as parties to the action. However oncethe Judgment is delivered no party can be addred. In the instantcase, the petitioners on their own admission, had no interest inthe land at the time the judgment was delivered. Accordingly aparty who claims to have acquired rights after the judgment isdelivered cannot be added as a party.
The petitioners were not parties to the partition action in theDistrict Court. They cannot be considered as aggrieved parties asthere was no decision made against them in the partition action.Therefore the petitioners are not aggrieved parties to the judgmentwhich would disentitle them to raise a contest against the judgment.
CARanasinghe and Another Vs. Gunasekara and Another397
(Wimalachandra, J.)
The petitioners, in this application, are seeking an order to setaside the interlocutory decree and the final decree of the saidpartition action No.3304/P of the District Court of Homagama.The petitioners are also seeking an order permitting them to beadded as parties to the said partition action to establish their rights.However the petitioners have no right to ask for the relief to setaside the interlocutory decree which did not affect them as theydid not have any right, title or interest in the land to be partitionedat the time the interlocutory decree was entered in the said partitionaction. I agree with the submissions made by the learnedPresident’s Counsel for the respondents that the interlocutorydecree cannot be set aside to accommodate a party who had norights in the corpus at the time the judgment and the interlocutorydecree were entered. If the petitioners had no rights in the land atthe time the judgment and the interlocutory decree were entered,there cannot be restitution as the petitioners could not be restoredrights which they did not have at the time the judgment was entered.In the case of Perera et. al. Vs. Wijewickrama et al(1) it was heldthat the remedy of restitutio in integrum is not open to personswho were not parties to the legal proceeding they sought to openup. Perera, J. delivered the judgment said, (at page 413).
“I am of the Opinion that the remedy of restitutioin integrum can only be availed of by one who isactually a party to the contract or legal proceedingin respect of which restitution is desired”.
In the case of Dissanayake Vs. Elisinahamy<2> it was held thatrelief by way of restitutio -in-integrum could not be granted as thepetitioner had not been a party to the action. The petitioner’s remedywas under section 49 of the Partition Act. Abdul Cader. J.who delivered the judgment made the following observation atpage 122 ;
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Sri Lanka Law Reports
(2006) 2 Sri LR.
Getting on to the Plea for relief by way of restitutio-in-integrum, in Perera v. Wijewickrama3 (Supra) Pereira, J.said “From what Voet says earlier (4.1.3) it appears tome that when restitution is sought in respect of a legalproceeding , the applicant should be somebody whoalready has had direct connection with the proceeding”.
In the same case, Ennis, J. stated
“it appears clear that such an application is notgranted in Ceylon if any other remedy is available.
In this case the applicants set up fraud and collusionagainst the administratrix and her assignee.Moreover, restitution of the case will only have theeffect of putting the parties in the position they werein before judgment was given, and the applicantshere were not parties in the case.”
In this case section 49 grants relief to the petitioner,Secondly, since the petitioner was not a party to the action,setting aside the interlocutory decree would not make him aparty in the case, as he was not a party at the time judgmentwas delivered. In Perera, v. Simeon Appuhamy Ennis, J.said
“It (this application) is made by a person who isnot a party to the proceedings in the Court, below,and it is extremely doubtful whether the remedy ofrestitutio-in-integrum can be availed of by such aperson.”
All the decisions cited to us are cases where the partieswere before Court on whom summons was not served or stepsfor substitution had not been taken when a party died or wherea guardian has been appointed in terms of section 493 (1) ora settlement has been affected without the leave of Court interms of section 500 C. P. C. or a judgment had been entered
CARanasinghe and Another Vs. Gunasekara and Another399
(Wimalachandra, J.)
against a person of unsound mind without the appointmentof a manager. It is clear that these are cases where a partywas already a defendant in the action and legal requirementin terms of the C. P.C had not been complied with. But where,as in this case, the petitioner was not before Court at anystage of the proceedings before judgment, restitutio – in-integrum will not lie.”
In the present case before us, the petitioners were not parties tothe partition action and they were not entitled to be parties as theyhad no interest in the land at the time the interlocutory decree wasentered.
The only question that remains to be decided is the issue raisedby the learned counsel for the petitioners, that the lis pendens ofthe partition action is not registered in the correct folio. Improperregistration or non registration of a lis penders and its effect on thefinality of the partition decree are found in the repealed section48(3) of the Partition Act No. 16 of 1951. It reads as follows :
“(3) The interlocutory decree or the final decreeof partition entered in a partition action shall nothave the final and conclusive effect given to it bysection (1) of this section as against a person who,not having been a party to the partition action,claims any such right, title or interest to or in theland any portion of the land to which the decreerelates as is not directly or remotely derived fromthe decree if , but only if, he proves that the decreehas been entered by a court without competentjurisdiction or that the partition action had not beenduly registered under the Registration of DocumentsOrdinance as a Us pendens affecting such land.”
The new section 48(3) of the Partition Law No.21 of 1977 readsthus :
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Sri Lanka Law Reports
(2006) 2 Sri L R.
“The interlocutory decree and the final decree ofpartition entered in a partition action shall have thefinal and conclusive effect declared by subsection
of this section notwithstanding the provisions ofsection 44 of the Evidence Ordinance, andaccordingly such provisions shall not apply to suchdecree.
Even under section 48(3) of the Partition Act of 1951 despite thefact that the lis pendens has not been duly registered, a personwho was not a party to the partition action cannot intervene afterthe interlocutory decree had been entered. In the case of NorisVs. Charles™ it was held that where a partition action had notbeen duly registered as a lis pendens, a person who was not aparty to the proceeding could not intervene after the interlocutorydecree was entered, but that such person, notwithstanding theinterlocutory decree, was entitled to establish his rights in avindicatory action or in a subsequent partition action.
The effect of registration or improper registration of a lis penderson the finality of the interlocutory decree and the final decreeunder the provisions of section 48(3) of the Partition Act No.16 of1951 is no more in the Partition Law No.21 of 1977. The provisionsin section 48(3) of the Partition Act that the non registration orimproper registration of a lis pendens is a ground of assailing thefinal and conclusive character of a partition decree has beenremoved and is not available in the Partititon Law No.21 of 1977.The resulting effect of the change in the law is that non registrationor improper registration of the lis pendens is no more a ground ofchallenge to the conclusive effect of the partition decree.
In any event the petitioners are not without a remedy. Section49(1) of the Partition Law provides that,
“Any person, not being a party to a partitionaction, whose rights to the land to which the actionCA
Ranasinghe and Another Vs. Gunasekara and Another
(Wimalachandra, J.)
401
related have been extinguished or who is otherwiseprejudiced by the interlocutory decree entered inthe action, may, by separate action not less thanfive years from the date of the final decree recoverdamages from any party to the action by whose act,whether of commission or omission, such damagemay have accrued and where the whole or any partof such damages cannot be recovered from any suchparty, recover such damages or part thereof fromany other person who has benefited by any suchact of such party. Any person who has benefited bysuch act may be made a defendant in such separateaction and shall, if damages were awarded in thataction, be bound by the award to the extent of suchbenefit as may be determined by the court, to bethat derived by him from such act.”
It was held in the case of Menchinahamy vs. Muniweera(5)that the remedy by way of restitutio-in-integrum is given only undervery exceptional circumstances. It is only a party to a contract orlegal proceedings who can ask for this relief. The remedy must besought forthwith with the utmost prompitude. It is not available ifthe applicant has any other remedy open to him. In the instantapplication the petitioners have failed to explain the delay to thesatisfaction of this Court.
For these reasons, I am of the view that the application of thepetitioners should be dismissed. Accordingly I proceed to dismissthis application with costs.
ANDREW SOMAWANSA. J. (P/CA). — I agree.
Application dimissed.