SILINDU v. AKURA

070-NLR-NLR-V-07-SILINDU-v.-AKURA.pdf


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1904.
August 30.
SILINDU v. AKURA.
D. G., Kegalla, 383 and 1,491.
Eestifutio in integrum—Ex parte application to the Supreme Court for—Civil Procedure Code, s. 377 (b)—Form of order.
On proper materials laid before the Supreme Court by a party whodesires to be relieved of a decree which had been improperly obtainedagainst him, it will, upon an ex parte application by such party, directthe Court which passed tha decree to hear all necessary parties anddetermine whether the petitioner is entitled to be relieved from thesaid decree and to be, restored to his rights as existing prior to the saiddecree. •
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HIS was an application to the Supreme Court for restitutio inintegrum of the rights of the applicants as they stood prior
to the decree passed in D. C., Kegalla, 393, on 19th October, 1893.
The first applicant, Silindu, wife of the second applicant, wasthe daughter of Happua and his wife Amalu, and was born in 1878.
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Happua died on 9th Marph, 1881, entitled to paraveni and acquired 1904.lands which his widow gave out in ande cultivation till her death August 30.in 1890. Her brother Kiri Ukku then applied to be appointed nextfriend of Silindu in order to institute an action to evict (1)
Happua's brother Laminduwa and (2) Akura, the son of the latter.
Kiri Ukku’s proxy to her proctor authorized legal proceedings “forme and in my name, ” &c., throughout, and made no mention of theminor, and when the appointment was made the same proxy wasutilized to support the plaint of the minor by her next friend‘Akura. In this suit bearing No. 343^ (the second defendant pleadedhe was a son of Happua, and both defendants pleaded title byprescriptive possession.,,
On the trial day, 19th October, 1893, a consent decree was re-corded:“ It is agreed between the parties that judgment be entered
. up as follows: for the plaintiff, for lands Nos. 4 and 9 and half ofNos. 1, 2, 3, 5, 6, and 7; for first defendant, for land No. 10; andfor second defendant, for the other half of Nos. 1 and 2.
In April, 1896, the applicants were married, and in May, 1896,Ijaminduwa died, and Akura, claiming to be his son, was grantedadministration to his estate. The applicants asserted – they enteredinto possession of all the lands in October, 1899, and held posses-sion till April, 1902, when Akura, claiming title by inheritance andby virtue of the decree in 383, D. C., Kegalla, to the moiety of thelands decreed to him, instituted the action No. 1,491 to recoverpossession, asserting he had possessed them until ousted in January,
The applicants as defendants pleaded that the decree inNo. 383 had been fraudulently and collusively obtained, and thatfirst applicant as sole child and heiress of Happua was solelyentitled, and they claimed in reconvention that the decree inNo. 383 should be set aside.
The District Judge held that the decree in No. 383 was notvalid or binding on the applicants, because the Court had notexpressly sanctioned the agreement, and on issues framed heldthat Akura was not a son of Happua, and so gave judgment on23rd October, 1902, for the* applicants, defendants in caseNo. 1,491.
In appeal before Layard, C.J., and (rrenier, A.J., it was held on30th April, 1903, that the plaintiff Akura was entitled to the landsunder the decree in No. 383, and that it could not bfe set aside inanother suit, bu.t only by restitutio in integrwrp, in the maunerpointed out in the cases repotted in 4 N. L. R. 249 and 7 N. L. R. 139.
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F3r this relief the applicants now filed their applicationsupported by affidavit and by copies of the proceedings iu casesNos. 383 and 1,491, D. C., Kegalla.
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1904. D. F. Browne, for applicants.—The decree in 388, D. C., did notAugust SO. bind the minor (1) when there was no proxy by the next friend,and (2) when the Court did not inquire whether the settlementwas for .the benefit of the minor and expressly sanction it for thatreason. O’Kinealy on the Indian Civil Procedure Code, section462; Ceylon Civil Procedure Code, section 500. Laminduwawas not an heir of Happua, and the grant of a land to him bysettlement is averred by the applicants to have been made becausehe was a headman of influence. Akura’s administration showshe was not a son of Happua, but of Laminduwa, and the Court sofound in D. C. No. 1,491 on issue framed. The applicants havenamed as respondents Akura, personally and as administratorof Laminduwa, and Laininduwa’s heirs. We ask now for aninterlocutory order udder section 377(b), which appears to
be the proper order to make on a non-summary petition when theCivil Procedure Code does not prescribe what the procedurethereon should be. [Wendt, J.—Are you not entitled to anex parte order?] It was so held in 7 N. L. R., 142, but ifthere be doubt as to our right, order nisi might be first issued.We submit, however, that the grounds we advance for relief areonly those which were held in our favour in 1,491, D. C., by theDistrict Judge. [Middleton, J:—Is there no other form of actionopen to you, as for fraud in the obtaining of the decree in 383,D. C.?] This Court in its judgment in 1,491, D. C., indicated weshould apply in this manner, and we have done so on the lineslaid down in its previous decisions therein cited. [Wendt, J.—Is the position of affairs still the same?] WTe aver Akura has,since the appeal decision against us in 1,491, D. C., been put inpossession of the lands, and we do not know of any assignmentby him of his rights. During the pendency of this applicationwrits have, we are informed, been applied for, apparently torecover the costs in 1,491, D. C. [Wendt, J.—Does your affidavitquote the passages in the records of the two actions on which youhave commented?] No. We have attached to our affidavitcertified copies of the records themselves, and narrated their effectin one affidavit summarizing the facts.
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• 30th* August, 1904. Wendt, J.— "
Upon readjng the 'petition of Silindu. and her husband Siriya,and- the affidavit of the said Silrndu, and the decree of theDistrict Court of*Kegalla in action No. 383, dated 19th October,1893, and the order of the said District Court of Kegalla in actionNo. 1,491 dated 13th October, 1902, and the judgment and decreeof the said Court in the said last-mentioned action dated 23rd
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October, 1902, and the judgment and decree of this Court inthe last-mentioned action dated 30th October, 1908, and uponhearing counsel for the petitioners, it is ordered that thematter of the said petition be referred to the District Court ofKegalla, in order that the said District Court may, after hearingall necessary parties, determine whether the petitioners areentitled to be relieved from the aforesaid judgments and decreesand to be restored to their rights as existing prior to the saiddecree of the 19th Ocober, 1898; and if so. that the said DistrictCourt may investigate and declare., the rights of the petitionersin the lands, the subject of the said actions, with power to the saidDistrict Court to dispose of the costs of the proceedings before itas to it may seem right and proper.
Middleton, J.—I agree.
1904t
August 30,Wendt, J,