082-NLR-NLR-V-74-THEIVANAIPILLAI-wo-K.-Nalliah-Appellant-and-K.-NALLIAH-and-others-Responde.pdf
SAME R AIVICK R AME, J.—Theicanaipillai v. Nalliah
307
1971Present : Samerawickrame, J., and Wijayatilake, J.
THElVANATPILLAI (w/o IC. Nalliah), Appollant, and K. NALLIAHand olliers, Respondents
S'. G. 2G0/G8 {Inlij.)—D. C. Colombo, 10408j MB
Mortgage action—TtUer>enlion sought by person interested—Inapplicability of s- 1*1 ofMortgage Act- to him—Du y of Court then to consider whether s. IS of CecilProcedure Code or any other principle of law is applicable.
Whcro the provisions of section 10 of tho Morfgngo Act oro not npplicnbloto ti person who seeks to intervene in o mortgago action as ft party having nninterest in it, the Court must consider whether ho is entitled to intervene andbe ndded ns a party on the basis of section IS of the Civil Procedure Code oron any other ground or principle of law.
A
J 3LPPEAL from an order of tho District Court, Colombo.
D. Guruswamy, for the intervonient-appellant.
Sivagurunalhan, for tho 1st and 4th dofendants-respondents.
Mart h 15, 1971. Samerawickrame, J.—
Tho appollant who sought to intervene on this mortgage action is thowife of I ho 1st plaintiff and is living in separation from him. £ ho allegedthat sho lias from the year 1943 been in occupation of the land in questionto the exclusion of ei crybody else and that she had put up buildings andhad paid tho rates in respect of 1he houso standing on the land. Shefurther averred that the money' was provided by her for tho purchase ofthe land and it was intended that it should be bought in her name. Thedeed had however been executed in Iho name of the 1st plaintiff. Shoasserted that the subsequent transactions in respect of tho land betweenthe 1st plaintiff and the defendant-society were made in collusion anddid not therefore alfoct her rights. She also claimed that by reasonof the law of Thesawalamai to which the parties are subject she wasentitled to tho land as her separate property. It is her positionthat tho plaintiffs and the defendant-soeie'y were acting in collusionto defeat her rights and that a mortgage docree in this aclion and a saleupon it would gravely prejudito her and may well put an end to herrights. The learned District Judge dealt with tho application only onthe basis of Section 10 of tho Mortgage Act. It appears to us however,that Section IS of the Civil Procedure Code would also be applicable andthat tho learned District Judge should have considered whether on Ihobasis of Section 18 of the Civil Procedure Code or on any other groundor principle of law, the appellant is entitled to intervene in this action.
303
IYimalawathie t>. Opanayake
We accordingly set aside tho order dismissing the application of theappellant and send tho caso back with a direction to tho District Judge toconsider whether the appellant is entitled to intervene and be added asa party to this action on tho basis of Section IS of the Civil ProcedureCode or on any other ground or principlo of law. We also sot aside theorder for costs made by the learned District Judge. We ruako no orderas to costs of appeal.
Wijayatilake, J.—I agree.
Case sent back for further proceedings.