052-NLR-NLR-V-39-TOCHINA-v.-DANIEL.pdf
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MAARTENSZ J.—Tochina v. Daniel.
Present: Maartensz and Moseley JJ.
TOCHINA v. DANIEL188—D. C. (Jnty.) Galle, 34,347.
Registration—Partition action—Registration of lis pendens in wrong folio—
Rectification of error after issue of summons—Registration of Documents
Ordinance, No. 23 of 1927, s. 12 11).
Where a partition action was registered as a lis pendens in the wrongfolio and summons was issued in terms of section 12 (1) of the Registra-tion of Documents Ordinance,—
Held, that the plaintiff should be allowed to rectify the mistake andobtain fresh summons.
There is no provision in the Registration of Documents Ordinancethat the action should be dismissed if the requirements of section12 (1) are not complied with.
PPEAL from an order of the District Judge of Galle.
H. V. Perera, K.C. (with him Colvin R. de Silva), for firstdefendant, appellant.
No appearance for plaintiff, respondent.
Cur adv. vult.
July 2, 1937. Maartensz J.—
The question for decision in this appeal is whether a partition actionshould be dismissed because the precept or order for the service of sum-mons was issued before the action was duly registered as a lis pendens asrequired by section 12 (1) of the Registration of Documents Ordinance,No. 23 of 1927. This sub-section enacts that “ a precept or order for theservice of a summons in a partition action shall not be issued unless anduntil the action has been duly registered as a lis pendens”. By section15 of the Ordinance an instrument is not duly registered unless it isregistered in the book allotted to the division in which the land affectedby the instrument is situated and in, or in continuation of, the folio in-which the first registered instrument affecting the same land is registered.
It appears. from the proceedings in this action that the action wasregistered as a lis pendens, but not in the proper folio.
When the plaintiff discovered the mistake he registered the action inthe proper folio and moved for the issue of fresh summons on the defend-ants. The first defendant objected to the motion ; he contended thatthe action should be dismissed. His objection was overruled and thisappeal is from that order.
The objection is in my opinion unsustainable. There is no provisionin the Ordinance which declares that the action should be dismissed ifthe provisions of section 12 (1) are not complied with. In the absenceof such provision I see no reason why a plaintiff should not be allowedto rectify his error and proceed with the action.
We have not in this case to deal with a question of competing actionswhich might give rise to other considerations.
I would dismiss the appeal with costs.
Moseley J.—I agree.
Appeal dismissed.