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Present: Bertram G.J. and De Sampayo J.WICKRAMAEATNA v. WICKRAMARATNA.
G. Colombo, 46,781.
Partition—The question whether land should he partitioned or sold shouldbe gone into before interlocutory decree—Ordinance No. 10 of 1863,section 4.
The question whether an actual partition or a sale should beordered should be gone into and determined by the Court as partof the proceedings preliminary to the interlocutory decree, whichshould, when entered, definitely order a partition or a sale, aathe case may be.
facts are set out in the judgment.
L. M. D. de Silva, for plaintiff.
October 2, 1918. De Sampayo J.—
This is one of several partition actions in which the plaintiff appliesto this Court for revision of the interlocutory decree. The DistrictJudge investigated the title and entered a decree ordering that theland be partitioned among the plaintiff and the defendants accordingto the shares set out in the plaint. But when the Commissioner'appointed to carry out the partition proceeded to the land, it becameobvious that on account of the nature and extent of the land andthe number of shareholders, a partition was impracticable, and theCommissioner made a report to that effect. An application madeby the plaintiff to the District Court to enter a decree for saleinstead of partition was rightly refused, inasmuch as the Court hadno jurisdiction to alter its own decree. Hence, the plaintiff has
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been obliged to come to this Court, and lias applied, with the con-sent of all the. parties, that the decree be altered by way of revision.
I am satisfied that the circumstances justify the application, andrequire the exercise by this Court of its. powers of revision.
As the necessity for such applications frequently arises undersimilar circumstances, it may be convenient to settle the practicewhich should be followed in partition cases. In my opinion tbequestion whether an actual partition or a sale should be orderedshould be gone into and determined by the Court as part of theproceedings preliminary to the interlocutory decree, which should,when entered, definitely order a partition or a sale, as the case maybe. This is the course plainly contemplated by the PartitionOrdinance itself. For section 4, which provides for the trial of apartition action, requires the Court to examine the title of all theparties and “ to decree a partition or sale according to the appli-cation of the parties or as to the Court shall seem fit.” That is tosay, the nature of the relief which the Court means to grant shouldbe determined once for all and embodied in the decree which is tobe entered. This is also in accordance with what was said inWeerasuriya v. Bastian (D. C. Galle, No. 4,381, Supreme Court.Minutes, February 24, 1899). In that. case the decree of theDistrict Court had ordered that if a partition was unpracticabie,the land should be sold and the proceeds distributed among theparties in proportion to their respective shares, and Bonser C.J.,indelivering judgment in appeal, observed: " The question ought not tobe left open in the decree whether there shall be a sale or a partition.The District Judge ought to determine whether the land ought to besold or partitioned, and enter that determination in the decree. ”This necessity might be obviated if the Court had the power toamend the decree for partition into one for sale, when a partition issubsequently found to be impracticable. It was once thought thatthe Court had this power. See Domingo v..Don Appu.1 But thatdecision and any others to the same effect are no longer of anyauthority in view of the more recent decisions, which have ruledotherwise. It is now well settled that the Court, in a partitionaction, even in circumstances of obvious necessity, cannot amendits own decree. It is, I think, therefore, necessary to lay down, ,asa general rule of practice, that the proceedings under section 4 ofthe Partition Ordinance should include an inquiry into the questionof partition or sale, and that the decree should make such order asthe circumstances require. I would allow the present application,and in revision order that the interlocutory decree in this case beamended by decreeing a sale of the land instead of a partition, andthat the case be proceeded with accordingly.
Bertram C.J.—I agree.
t (me) 7 s. a. o, m.Allowed.
WICKRAMARATNA v. WICKRAMARATNA