093-NLR-NLR-V-63-S.-D.-NORIS-Appellant-and-P.-M.-G.-CHARLES-and-others-Respondents.pdf
SFNNETAMBY, .T.—Noris v. Charles
501
1961 Present : H. N. G. Fernando, J., and Sinnetamby, J.S. D. NORIS, Appellant, and P. M. G. CHARLES and others, Respondents
S. C. 422j59—D. C. Galle, 862/P
Partition action—Failure to register lis pendens in correct folio—Final decree—Denial of right of intervention of new parties thereafter—Partition Act, No. 16 of1951, ss. 26, 36, 48, 49—Evidence Ordinance, s. 44.
iTiere final decree has been entered in terms of section 36 of the PartitionAct, No. 16 of 1951, it is not open to a new party to intervene by having thedecree set aside on the ground that lis pendens was not registered in the correctfolio. The provisions of sub-section 3 of section 48 do not enable such inter-vention .
Appeal from a judgment of the District Court, Galle.
A. L. Jayasuriya, with D. R. P. Goonetilleke, for the plaintiff-appellant.
A. W. W. Gunawardene, for the 22nd defendant-respondent.
Cur. adv. vult.
September 22. 1961. Sinnetamby, J.—
This is an appeal from an order made by the learned District Judge ofGalle allowing an intervention by the 22nd defendant after a final decreefor partition had been entered under Section 36 of the Partition Act,No. 16 of 1951. It would appear that the present 22nd defendant movedto intervene on the ground that lis 'pervdeus had not been registered in thecorrect folio. The matter was fixed for inquiry and the learned Judge,his order dated the 27th of August, 1959, set aside the final decree
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SI2STNETAMBY J.—Noris v. Charles
and permitted the 22nd defendant to intervene. The question thatarises for decision in this appeal is whether it is open to a party to seekto set aside on that ground the final decree entered under Section 36.For the purpose of our decision, I do not think it necessary to come to afinding on the question of whether the registration of Us pendens by theplaintiff was entered in the correct folio or not. Even assuming that itwas not registered in the correct folio, I have come to the conclusion thatit is not open to the 22nd defendant to have the final decree set aside andbe permitted to intervene.
Under the old Partition Ordinance, interventions were generally neverallowed after final decree was entered. The final and conclusive effectgiven by Section 9 of the old Ordinance related to the decree that wasentered under Section 6 in the case of an order for partition and underSection 4 in the case of an order for sale.Once there was a confirmation
of the partition proposed by the Commissioner and final judgmententered under Section 6, interventions were not permitted. A decreeduly entered under Section 6 would be final and conclusive against allparties if in terms of Section 9 it was entered “ as hereinbefore provided ”.If the steps taken prior to the entering of the decree under Section 6were not “ as hereinbefore provided ”, it did not give a party affectedby the decree, who was not a party to the action, the right to have thedecree set aside. It only gave such a party the right to dispute the con-clusive effect of that decree and to maintain that it was not binding onhim. That was the effect of the cases decided under the provisions of theold Partition Ordinance. It was always open to a party after the inter-locutory decree had been entered and before final decree to intervene inproceedings under the old Ordinance and trials had in consequence to beadjourned from time to time as a result of successive interventions madesometimes at the instance of an unsuccessful party. This followed as anecessary consequence from the decisions of our Courts which refusedto give to the interlocutory decree entered under Section 4 the final andconclusive effect contemplated by Section 9. It seems to me that thePartition Act of 1951 sought to put an end to the considerable delayoccasioned by such interventions. Section 48 of the new Act expresslyprovided that the interlocutory decree entered under Section 26 whichcorresponds with the interlocutory decree under Section 4 of the repealedOrdinance shall have a final and conclusive effect. No interventionthereafter would ordinarily be permitted and Section 48 further providedthat both the interlocutory decree entered under Section 26 and the finaldecree entered under Section 36 shall “ be good and sufficient evidence oftitle of any person as to any right share or interest awarded therein tohim and be final and conclusive for all purposes against all personswhomsoever ” ; and it further went on to provide that this would be so“ notwithstanding any omission or defect of procedure or in the proof oftitle adduced before the court or the fact that all persons concerned arenot parties to the partition action ”. This conclusive effect was subjectto the provisions of sub-section 3 to which I shall refer later.
SINNETAMBT, J.—Noris o. Charles
503
It seems to me that by expressly denying the right of intervention onthe ground of “ omission or defect of procedure or in the proof of title orthe fact that all the persons concerned are not parties to the partitionaction ”, the new Act sought to negative the effect of any failure to con-form to the earlier essential steps contemplated by the words “ as herein-before provided ” in Section 9 of the Partition Ordinance, as interpretedby judicial decisions. The object of the legislature no doubt was toenable partition actions to be brought to a speedy conclusion. Underthe old Ordinance, it was not uncommon for actions to be pending forlengthy periods of time extending in some cases to as much as 25 to 30years and even more. Once the interlocutory decree was made final andconclusive no intervention should ordinarily be permitted thereafter, anda partition action would consequently be brought to a much speedierconclusion. The legislature at the same time realised that persons maybe adversely affected by the conclusive effect given to both the inter-locutory and the final decree and by Section 49 re-enacted the provisionsof the proviso to Section 9 of the earlier Ordinance which gave such personsthe right to bring an action for damages. In the case of persons who arenot parties to the action, however, sub-section 3 provides, inter alia,that the fact that the Its pendens had not been properly registered woulddeprive the decree of its final and conclusive effect. That is all thatsub-Section 3 provides. A person who was not a party to the partitionaction is not bound by the interlocutory decree if lis pendens had notbeen properly registered. This does not mean that be is entitled tointervene and have the interlocutory decree set aside. His positionwould be much the same as a person who is not a party to a vindicatoryaction.. He is unaffected by the decree and is entitled to assert his rightsas against the holder of the decree in any steps which are sought to betaken under it. He is in exactly the same position as a claimant to aninterest in land which had been partitioned under the repealed Ordinance,where the final decree had not been entered “ as hereinbefore provided”.
Fraud and collusion are well known grounds on which in any ordinarylitigation the decree can be set aside but under the provisions of thePartition Act Section 48 sub-section 2 even the provisions of Section 44of the Evidence Ordinance are made not applicable to partition decrees.Indeed, under the old Partition Ordinance, although there was no suchspecific provision, fraud was not a ground on which a partition decreecould have been set aside ‘—vide Fernando v. Marshall Appu1.
Our attention has been drawn to the decision of this court in Siri-wardene v. Jayasumana2 where it was held that the final and conclusiveeffect given to an interlocutory decree by Section 48 of the Partition Actdoes not deprive a party, who has not been duly served with summons,of the right to have the decree set aside. In that case, however, theappellant was already a party to the partition action at the time of theinterlocutory decree and it can, on that ground, be distinguished from the
* (1922) 2$ N. L, B. 570.
* (1958) 59 N. L. B. 400.
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present case. In Petisingho v. Itatnaweera 1 the view was taken that anew party cannot be added after judgment had been delivered and ordermade for the entry of the interlocutory decree. With that view I wouldwith great respect agree.
After judgment was reserved in the present appeal, our attention wasdrawn to the unreported case of Don Gar din A rangola v. TuduhenageMethias et al. 2 wherein this court set aside an interlocutory decree at theinstance of a petitioner intervenient on the ground that lis pendens hadnot been properly registered. In a short judgment, Sansoni, J. in thatcase, permitted the intervention. The effect of Section 48{3) was notconsidered and I would, with great respect, disagree with the views there-in expressed.
There are, however, several cases where the Supreme Court, acting inrevision, has set aside interlocutory and even final decrees. I wishto add that the powers of this court to act in revision are in no wayrestricted by the provisions of the Partition Act. The present appealis not a case in which we should, in my opinion, act by way of revision.
I would, therefore, hold that the learned District Judge was wrongin setting aside the final decree entered in this case. If, in point of fact,the lis pendens had not been registered in the proper folio it would not beconclusive as against the 22nd defendant. If, on the other hand, it hadbeen properly registered, then it would be conclusive. That questionwe do not propose to deal with and would arise only if steps are takenagainst the 22nd defendant under the partition decree, or his proprietaryrights are in any way challenged in other proceedings. The order of theDistrict Judge is accordingly set aside and the appeal allowed with costsboth here and in the court below.
H. N. G. Fernando, J.—I agree.
Appeal allowed.
* 1 2
1(1959) 62 N. L. R. 572.
2S, C. 74 T). G. Inly. Colombo No. 8116 (P) S. C. Minutes of 3.2.61.