U. D. ARIYARATNE, Appellant and M. LAPIE and others, Respondents

045-NLR-NLR-V-76-U.-D.-ARIYARATNE-Appellant-and-M.-LAPIE-and-others-Respondents.pdf


Ariyarolne v. Lapie
221.
Present: Deheragoda, J., Wimalaratne, J., and Sirimane, J.
U.IT. ARIYARATNE, Appellant and M. LAPIE and others, Respondents
Partition action—Pronouncement of judgment of Court—Interventionof parties thereafter before interlocutory decree is signed—Notpermissible—Partition Act (Cap. 69), ss. 26, 49, 70, 79—CivilProcedure Code, s. 188.
Section 70 of the Partition Act is not wide enough to permitth® Court to allow a party to intervene in a partition action afterjudgment has been pronounced in terms of section 26 of that Act,but before interlocutory decree has in fact been signed.
Wijeratne v. Samarakoon (71 C. L. W. 87) partly overruled.
The conditions prescribed by section 79 of the Partition Act forapplying the provisions of the Civil Procedure Code to a qasusomissus in any matter of procedure are satisfied for applyingsection 188 of the Civil Procedure Code to the manner of enteringan interlocutory decree in a partition action.
S. C. 195/68 (Inty.)—D. C. Avissawella, 11906/P
A.PPEAL from an order of the District Court, Avissawella.
R. P. Goonetilleke, for the intervenient-appellant.
No appearance for the respondents.
Cur. adv. vult.—X 00580 (8/73)
222
DEHERAGODA, J.—Ariyaratne v. Lapis
May 23, 1973. Deheragoda, J.—
This is an appeal from an order made by the learned DistrictJudge of Avissawella, which has been referred to a DivisionalBench due to a conflict between the case of Wijeratne v.Samarakoon/ reported in 71 C. L. W. 87, and the earlier decisionin Petisingho v. Ratnaweera, * €2 N. L. R. 572. The question fordecision is whether the Court has power under section 70 of thePartition Act to allow an intervention of a party after judgmenthas been pronounced in terms of section 26 of that Act, butbefore interlocutory decree has in fact been signed.
In the instant case an action was filed for the partition of twocontiguous allotments of land and the case went to trial on 7thJuly 1968. On that date, at the end of the trial, judgment wasdelivered declaring the parties entitled to certain shares in thecorpus and an order was made to “ enter interlocutory decreeaccordingly ”—interlocutory decree was to be tendered on 17thAugust 1968.
The intervenient-appellant filed petition and affidavit on 30thJuly 1968 and moved for permission to intervene and to be addeda party defendant. On the same date proctors for the plaintiffsand for the 3rd defendant objected to the intervention, and 17thAugust 1968 was fixed for the inquiry into the objections. Inter-locutory decree was tendered on 17th August 1968. The inquirywas held on the same date, and on 8th September 1968 thelearned District Judge made order refusing the intervention withcosts. The interlocutory decree was signed on the following dayand dated 7th July 1968, following the date of the judgment. Thisappeal is from that order. –
At the inquiry, the case of Wijeratne v. Samarakoon (supra)was cited in support of the application for intervention. In thatcase Manicavasagar J., with Alles J. agreeing, took the viewthat under the circumstances of that case section 70 of thePartition Act enabled a party to intervene up to the date onwhich the interlocutory decree was in fact signed by the Judge.The case of Petisingho v. Ratnaweera (supra) was also cited, butit was contended on behalf of the intervenient-appellant thatinasmuch as there is provision governing interlocutory decreesin the Partition Act, recourse should not be had to section 188 ofthe Civil Procedure Code, and that the provision of the Civil
» (1061) 11 O. L. W. 81.* (1959) 62 N. L. R. AM.
DEHKRAGODA, J.—Ariyaratne v. Lapis
223
Procedure Code would only apply to a casus omissus. The learnedDistrict Judge preferred to follow the decision in 62 N. L. R. 572and refused the application as stated earlier.
In the case of Petisingho v. Ratnaweera (supra) judgment wasdelivered on 15th October 1956 and interlocutory decree wasfixed for 30th October 1956. On 19th October 1956 the proctor forthe appellant filed a statement , of claim and moved that it beaccepted and filed of record, and supported his application on23rd October 1956 on the basis that interlocutory decree had notin fact been entered by that time. The respondent’s proctor hadobjected to the addition of the appellant as a party and hisobjection was upheld by the learned District Judge. In appealBasnayake C. J. agreed with the learned District Judge thatsection 70 of the Partition Act did not empower a court to add as aparty a person who applied to be added as such after judgmenthad been pronounced in terms of section 26. He expressed the viewthat the entering of the interlocutory decree under section 26was a purely ministerial act and that the Judge is bound by thatsection to enter the decree in accordance with the findings in thejudgment. He referred to section 188 of the Civil Procedure Codewhich, according to him, was applicable to partition proceedings.Basnayake C.J., with Sansoni J. agreeing accordingly held thatthe court had no power to add a party under section 70 afterthe date on which the judgment as required by section 26 waspronounced. He did not however give any reasons for holdingthat the Civil Procedure Code is applicable to proceedings underthe Partition Act.
The case of Wijeratne v. Samarakoon (supra) came up fordecision on a later date before Manicavasagar J. and Alles J.In that case one of the defendants moved to withdraw his claimto a right of way as he had divested himself of his interests, andhis claim was dismissed. Order was made for documents to betendered on 13th December 1965 and judgment was reserved for20th December 1965. On the same date these dates were advancedto 3rd December 1965 for the filing of documents and6th December 1965 for the judgment. On 6th December 1965 thecourt delivered judgment and directed that interlocutory decreebe entered, and ordered the decree to be tendered on17th January 1966. On that date itself, namely 6th December1965, the appellant filed a petition moving for intervention in theaction. This was submitted to the Judge on 9th December' 1965
224DBHERAGOBA, S.—AriipmOMs b. £fff#e
and after an inquiry held on 24th January 1066 themade order on 11th March 1966 dismissing the appellant'sapplication for intervention. Between the date of inquiry and thedate of the order, on 21st February 1966, the proctor for theplaintiff had tendered the interlocutory decree and moved thatit be entered. The appellant had filed a petition of appeal on l§lhMarch 1966 and the interlocutory decree was “ entered ” on 2ndMay 1966. In allowing that appeal Manicavasagar J. stated asfollows : —
“ The appellant’s application was accepted by the Courteven before interlocutory decree was tendered, and herapplication was heard and determined before the decree Wasentered by the Court. On this ground alone the appellant isentitled to succeed.”
He relied on an additional ground, namely, that even beforethe judgment was delivered the Court was possessed of thefact during the hearing of the action that the appellant had aclaim to a servitude of a right of way (presumably for thereason that the defendant, who had divested himself of hisinterests and withdrew from the action, had transferred hisrights to the appellant), and that it was the obvious duty of thecourt to have given the appellant an opportunity of applying tobe added as a party if she so desired. It may be thatManicavasagar J. was largely influenced in taking this view ofthe appellant’s right of intervention by this fact and the factthat it was on the very day the judgment was pronouncedthat the appellant moved to intervene. It is noteworthy thatin this case the question was not considered whether the act of“ entering ” the interlocutory decree within the meaning ofsection 26 of the Act is necessarily the same as the date of thephysical act of drawing up of that decree and signing it, orwhether it is the date of the judgment to which the act ofsigning relates back by virtue of a provision of law. The earliercase of Petisingho v. Ratnaweera (supra) too Was not consideredin this judgment, presumably for the reason that ner referencewas made to it in the' course of the arguments.
It is contended for the intervenient-appellant in the instantappeal firstly, that as section 26 (1) of the Partition Act providesfor the entering up of an interlocutory decree in accordance Withthe findings in the judgment, and it also provides for thesignature of the Judge to be attached to that decree without
£>EBERAGODA, J.—Ariyaratne v. Lapte
225
requiring that it should be dated as at the date of the judgment,that that provision is complete in itself relating to the entering ofsuch a decree, and that section 188 of the Civil Procedure Codeshould not be brought in to supplement it.
' The second argument is based on a comparison of theprovisions of the now repealed Partition Ordinance (Cap. 56 ofthe 1938 edition of the Enactments) with section 26 of thePartition Act relating to the entering of a decree. He argues thatwhile the repealed Partition Ordinance requires the judgmentto be pronounced and the decree to be entered and signed onthe same date, section 26 of the Partition Act provides for twoseparate acts, namely, dating and signing the judgment at thetime of pronouncing it and the entering and signing of the inter-locutory decree as soon as may be after the judgment ispronounced. That being so, he argues that the right of interven-tion allowed by section 70 continues up to the date of signingof the interlocutory decree.
I shall consider first the contention that section 26 is completein itself and that section 188 of the Civil Procedure Code has noapplication to an interlocutory decree in a partition action.Section 26 (1) reads as follows : —
“ 26 (1). At the conclusion of the trial of a partition action,or on such later date as the court may fix, the court shallpronounce judgment in open court, and the judgment shallbe dated and signed by the Judge at the time of pronouncingit. As soon as may be after the judgment is pronounced,the court shall enter an interlocutory decree in accordancewith the findings in the judgment, and such decree shallbe signed by the judge.”
Section 79 of the Act which enables any casus omissus to begoverned by the Civil Procedure Code runs as follows : —
“ 79. In any matter or question of procedure not providedfor in this Act, the procedure laid down in the CivilProcedure Code in a like matter or question shall befollowed by the court, if such procedure is not inconsist-ent with the provisions of this Act.”
According to this section, in order to introduce the procedurelaid down in the Civil Procedure Code into partition actions,the following conditions have to be satisfied : —
There must be the absence of a provision relating toprocedure in the Partition Act which is laid down inthe Civil Procedure Code ;
226
DETtERACrODA, J.—Ariyaratne v. Lapte
That procedure in the Civil Procedure Code should notbe inconsistent with the provisions of the Partition Act
Section 188 of the Civil Procedure Code runs as follows : —
“ 188. As soon as may be after the judgment is pronounced,a formal decree bearing the same date as the judgmentshall be drawn up by the court in the form No. 41 in theFirst Schedule or to the like effect specifying in precisewords the order which is made by the judgment in regardto the relief granted or other determination of the action.The decree shall also state by what proportions costs areto be paid, and in cases in the Courts of Requests shallstate the amount of such costs. The decree shall be signedby the Judge. ”
Section 26 of the Partition Act only requires the interlocutorydecree to be entered in accordance with the findings of thejudgment and such decree to be signed by the Judge, whilesection 188 of the Civil Procedure Code, which incidentallycalls the decree a “ formal decree ”, requires—
that it should bear the same date as the judgment,
that it shall be drawn up by the court in the form pres-
cribed in the First Schedule or to the like effect,
that it should specify in precise words the order which.
is made by the judgment in regard to the relief granted'or other determination of the action,
that it shall state by what parties and in what propor-
tions costs are to be paid,
that it should be signed by the Judge.
It would therefore appear that whilst section 26 of the PartitionAct sets out the minimum requirements of an interlocutorydecree under that Act, section 188 of the Civil Procedure Codeprescribes how the decree should be drawn up, giving its con-tents in detail and even prescribing its form. These are mattersnot provided for in the Partition Act and the procedure set outin section 188 as to the manner of entering a decree is notinconsistent with the provisions of that Act. In my view,therefore, the conditions prescribed by section 79 of thePartition Act for applying section 188 of the Civil Procedure' Code to' an interlocutory decree in a partition action, are -satisfied.
DEHERAGODA, J.—Ariyaxaine v. La-pie227'
– The second point raised by appellant’s cotinsel is in my view"without substance. It is true that while the repealed Partition‘Ordinance requires the judgment to be pronounced and thedecree to be entered simultaneously, section 26 of the PartitionAct contemplates two separate acts in respect of the judgmentand the decree. This innovation in the Partition Act is obviouslymeant to surmount the practical difficulty which would havearisen under the repealed Partition Ordinance of having tohave a decree drawn up and in readiness for the Judge’ssignature on the date of the pronouncement of the judgment,especially in a case where the judgment is delivered imme-diately after the hearing is concluded. The present provisionwould enable a Judge to sign the decree on a subsequent datewhich is convenient to him and by the operation of section 188of the Civil Procedure Code to relate back the date of the decreeto the date of the judgment. The same result is thereby achievedas that provided for in the repealed Partition Ordinance by adifferent means. In my view, it is not possible to argue that theintention of the Legislature in prescribing two separate acts,namely for the pronouncement of the judgment and for theentering of the interlocutory decree in accordance with thefindings of that judgment, is to enable a party to interveneunder section 70 of the Act after judgment is pronounced,however long it might take thereafter to draw up the decreeand sign it.
The appellant is not left without a remedy, as section 49 ofthe Partition Act enables him to pursue his remedy by way ofa separate action for damages.
Learned counsel for the appellant in the course of his argu-ment-referred to two cases, namely that of Grace Perera v.Lilian Silva1 (68 N. L. R. 234) and the unreported case of LebbeSally v. Unus Lebbe, S. C. 102/68 (Inty)—D. C. Kurunegala1737/P (S.C. Minutes of 14th December 1969). Both these casesdo hot relate to an intervention of a party after interlocutorydecree, but to cases where parties who were already on record,having failed to appear on the date fixed for trial or on asubsequent date, had moved that the judgment or decree enteredagainst them be set aside and the case be restored to the trialroll. These decisions have no application to the question raisedin this appeaL
1 (1963) 68 N. L. B. 234.
22SSttbaneris v. The Ceylon State Mortgage Ttank
For these reasons it is my view that the appellant is notentitled to intervene in this action after the date of pronounce-ment of the judgment. Accordingly the order of the learnedDistrict Judge is affirmed and the appeal is dismissed withoutcosts. '
Wimalaratne, J.—I agree.
Sirimane, J.—I agree.
Appeal dismissed.