SOERTSZ J.—Samarasundera v. Samarasundera.
1938Present: Soertsz J.
SAMARASUNDERA v. SAMARASUNDERA.
Appeal—Decree against three defendants jointly—Appeal filed by two defend-ants—Third defendant not a party to the appeal—Regularity of appeal ■—Civil Procedure Code, s. 760.
Where a decree is entered against several defendants upon a finding
which applies to ail of them equally and one of them appeals the otherdefendants are not necessary parties to the appeal.
PPEAL from a judgment of the Commissioner of Requests, Gampola.
V. Perera, K.C. (with him Gratiaen), for defendants, appellants.
N.E. Weerasooria (with him E. B. Wikramanayake and J. R. Jayawar-dana), for plaintiff, respondent.
Cur. adv. viilt.
February 23, 1938. Soertsz J.—
Mr. Jayewardana takes the preliminary objection that this appeal hasnot been properly constituted for the reason that the third defendant hasnot been made a party respondent to it, and he asks that the appeal berejected.
The action was one brought by the plaintiff against three defendantswho, she alleged, were the co-owners of the land Horagahawatta to thesouth of her land “ Contentment Estate She complained that the firstdefendant was disputing the correct location of her southern boundary,and was claiming a strip of her land as part of the land belonging to-thedefendants. The first and second defendants filed answer but not the
46SOERTSZ J.—Sdmarasundera v. Samarasundera.
third. The case was, however, fixed for trial as between all the parties.After trial, the Commissioner entered decree in favour of the plaintiff asagainst the three defendants and ordered that they do jointly and severallypay the plaintiff’s taxed costs.
The first and second defendants appeal from that decree. They havemade the plaintiff the only respondent to the appeal. Mr. Jayewardanacontends that the third defendant was himself a necessary party to theappeal because, he says, if the appeal succeeds, it will succeed only to thebenefit of the first and second defendants and not to that of the, thirddefendant who has not appealed. He will remain bound by the decree,and will be in a more onerous position in the matter of costs because hewill be, in that event, solely liable for them.
In my opinion, the fallacy underlying this argument is the assumptionthat the appeal can succeed only so far as the first and second defendants-appellants are concerned and that the third defendant • cannot share inthat success. It seems to me that this is just such a case as is contem-plated by section 760 of the Civil Procedure Code. That section providesthat “ where there are more plaintiffs or more defendants than one inan action, and the decree appealed against proceeds on any groundcommon to all the plaintiffs or to all the defendants, any of the plaintiffsor defendants may appeal against the order, and thereupon the AppellateCourt may reverse or modify the decree in favour of all the plaintiffs ordefendants as the case may be ”. This section is a verbatim reproductionof section 544 of the Indian Code of Civil Procedure, XIV. of 1882. Inthe course of his comment on that section, O’Kinealy (as revised byRampini, 6th ed.) says, “ it has been held that it (i.e., 544) only appliesto decrees affecting in the sarhe manner the whole of the plaintiffs ordefendants, that is to say a decree incapable of division, and upon which,it would be impossible for a Court to find in one sense for some of theplaintiffs or defendants and in the opposite sense for the other plaintiffsor defendants, for instance, where the suit relates to property in which allthe plaintiffs or defendants are co-sharers or joint owners ”.(Sreeram
Ohuttuck v Brojo MohunThat is the position in this case. All thedefendants were sued on the ground that they were co-owners of the landon the south. It would have been impossible for the Court to find one-boundary line as between plaintiff and one or more defendants andanother as between the plaintiff and the other or others. The decreeentered is “ incapable of division ”, and as it was pointed out in the caseof Puran Mai v. Krarvt Singh", where there is “ a decree against severaldefendants upon a finding which applies equally to all of them, any of the-defendants may appeal against the whole decree in favour of all thedefendants ”.
In that view of the matter, the objection fails.
The case of Wickramasooriya v. de Silva*, which was cited at theargument refers to a different state of things and is clearly distinguishable.
I would, therefore, direct that this appeal be listed for hearing in duecourse. The costs of this argument can, I think, be better dealt with
when the appeal is decided.
’ 11 IK. R. 449.
2 20 All. 8.
s 1C Law Rec. 240.
SAMARASUNDERA v. SAMARASUNDERA