128-NLR-NLR-V-50-WILLIAM-SINGHO-Appellant-and-SILVA-Respondent.pdf
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1STAGAX.IN GAM J.—William Sing ho v. Silva
1949Present: Nagalingam and Windham JJ.WILiLIAM SINGrHO, Appellant, and SILVA, RespondentS. G. 435—D. C. Matara, 18,049
Res judicata—Decree for sale under Partition Ordinance—Sale—Subsequentamendment of decree—Prior agreement between purchaser at sale andthird party for conveyance—Third party not bound by amendment.
A person whose interests accrued to him prior to an order of Court isnot a privy in estate of his predecessor for the purposes of res judicata.
jAjPPEAL from a judgment of the District Judge, Matara.
C. E. S. Perera, for 2nd defendant appellant.
E. _B. Wikramanayahe, K.C., with M. H. A. Az$ez, for plaintiffrespondent.
Cur. adv. vulf.
May 9, 1949. Nagaltngam J.—
This is an action rei vindicatio. The plaintiff-respondent by deedof conveyance P4 of 1942 conveyed to the 1st defendant certain undividedinterests to which he was entitled in the land the subject-matter of thisaction with a condition annexed thereto whereby the latter covenantedwith the former to re convey the property on repayment of the con-sideration within a period of 5 years from the date of execution of thedeed. Before the expiry of the period of 5 years another co-owner of theland instituted a partition action to which the 1st defendant was madea party. The plaintiff intervened in the action and was himself made aparty defendant. The plaintiff though given a date to file answer didnot file one and though represented by Proctor did not put in an appear-ance either in person or by Proctor at the trial. After trial a decreefor sale was entered on June 4, 1945. In the decree, however, the 1stdefendant was declared entitled to the proper sharethathewas entitled tounder the deed P4 but no mention was made in it of the right the plaintiffhad under the deed. At the sale held under the decree a third partywas declared the purchaser. The 1st defendant objected to the saleand at the inquiry held into the objection terms of compromise werearrived at onDeeember 19,1945, under which the 1st defendant was declaredthe purchaser on his paying for the land a sum more than four times theprice realised at the auction sale. The 1st defendant was allowed timeto deposit the money and the 1st defendant entered into an agreement2D1 of January 12, 1946, by which he agreed to sell to the 2nd defendantthe land for a sum named therein and received part of the considerationwhich he deposited to the credit of the partition case in fulfilment of hisundertaking to pay the price he agreed to buy the land for, obtaining atthe same time credit for the balance purchase price.
The plaintiff who evinced no interest in the proceedings after his inter-vention made an application to Court six days after the money hadbeen deposited, namely, January 18, 1946, to have the decree entered inthe case amended by incorporating therein a reference to the condition
.NAGAIvINGAM J.—William Singho v. Silva
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under which the 1st defendant purchased the property from him. Tothis application the 2nd defendant who had already acquired an interestin the land by virtue of the agreement 2D1 was not made a party. Theapplication came up for consideration before a Judge other than theJudge who entered the decree and the application was allowed and orderwas made on July 24, 1946, directing the decree to be amended bymaking the rights of the 1st defendant subject to the condition containedin the deed P4 by the addition of the following :—“ Provided howeverthat if the said vendor pays back to the said vendee the purchase moneyhereof (Rs. 1,140) within 5 years of this date (2D2) the said vendee shallreconvey the property mentioned in the schedule below to the saidvendor ”. The decree directing the sale of the land, however, remainedunimpaired. The 1st defendant in pursuance of the agreement 2D1conveyed by deed P5 of July 30, 1946, the land even before a certificateof sale was issued in his favour and in order to put the title of the 2nddefendant on a firmer footing he executed conveyance P6 of October 2,1946, after obtaining the certificate of title.
In this state of the facts the plaintiff claimed against the 1st and 2nddefendants a declaration of title to the undivided interests he had con-veyed by deed P4 to the 1st defendant. The plaintiff made also certainother persons parties defendant but as their rights are not involved inthis appeal I shall take no notice of them. It is the 2nd defendant whocontests the claim of the plaintiff. The case of the plaintiff rests entirelyupon the amendment made to the partition decree which he has set outas the basis of his title. The 2nd defendant contests the validity ofthe plaintiff’s claim on several grounds.
The first point taken on behalf of the 2nd defendant is that it was notcompetent to the District Court to have amended the decree in theway it was in fact amended. Though the Judge who heard the appli-cation to amend the decree assumed jurisdiction to amend the decree byholding that the failure to conserve the rights of the plaintiff in the decreewas due to an error or accidental slip in entering up of the decree,the facts rather tend to show that the omission was deliberate as thedecree entered was a decree for sale and not one for partition. Thetrial Judge had before him the fact that there was the condition attachedto the deed P4 but the learned Judge’s failure to advert to the petitioner’srights may at the highest be accounted for oh the ground of a failureto make a proper adjudication.on the facts before him, but to say that thefailure was due to an error or accidental slip is clearly an unwarrantedassumption. I think therefore that the contention of the 2nd defendantis sound that the Judge who purported to amend the decree acted ultravires.
Besides the amendment had the effect of making an otherwise perfectlyintelligible and intelligent decree into one which was not merely contraryto law but which was entirely incapable of being given effect to. Thedecree was a decree for sale. It declared the parties entitled to theirrespective shares. It further directed that the land be sold and that theproceeds be distributed among the co-owners in proportion to theirshares. The effect of the amendment was to declare that the first defen-dant should reconvey an undivided share in the land to the plaintiff on
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the latter repaying the purchase money under the deed P4. It is plainto see that in view of the decree for sale the direction that the 1st defen-dant should reconvey a share in the property was utterly meaningless.The decree cannot even be regarded as one directing a sale of part of theproperty and allotting the remainder to one of the co-owners. Even if thedecree had purported to do so such a decree would he contrary to law.See Case No. 20 F/D. C. Jaffna 233 1 and UdumaLebbe v. BaJbu el al. 2The amendment to the decree was therefore hopelessly irregular.
Mr. Wickremanayake, however, contends that as the 1st defendant was aparty to the proceedings which culminated in the amendment of thedecree he is bound by it, though irregular. That, I think, is a propositionsound in law for at the worst the District Judge who amended the decreemade a wrong order and it has been said tritely that a Judge may make awrong order as well as a right order and such an order would be bindingon the parties. Mr. C. E. S. Perera for the appellant on the other handargues that the second defendant not having been apartyto the proceedingsis not bound by the order for amendment and that he is entitled to showthat the order of amendment was an erroneous order. Mr. Wickrema-nayake’s rejoinder to this argument is that the 2nd defendant is a privyin estate to the 1st defendant and therefore bound by the order ofamendment.
This contention brings one to a consideration of the question, who is aprivy in estate ? Had the 2nd defendant acquired his interest subse-quent to the order of amendment, then clearly the 2nd defendant wouldhave been privy in estate to the 1st defendant! and would be bound bythe decree. But in this case the 2nd defendant had acquired his interestunder 2Dl anterior to even the application made by the plaintiff to havethe decree amended. TTis rights therefore had accrued to him notsubsequent to the order of amendment but prior to it and he cannot there-fore be deemed to be privy in estate to the 1st defendant and no judg-ment or order made against the 1st defendant in respect of the interestshe had parted with can affect the rights of the transferee of those interests,namely, the 2nd defendant. TTnbm Chand in his Treatise on the Lawof Res Judicata 3 quotes a citation which is worth reproducing :
“ It is well understood though not usually stated in express termsin works upon the subject that no one is privy to a judgment whosesuccession to the rights of property thereby affected occurredpreviously to the institution of the suit ”.
And he cites certain American cases for the proposition —
“ Nor is a vendee of land affected by a judgment concerning it on asuit instituted against his vendor by a third person after the grant ”.
In India too the same principle has been adopted. It has been heldthat a judgment against the vendor in a suit begun after the sale doesnot create privity in the vendee4.
In the present case it will he seen, when both the application andthe order were made, the first defendant had already agreed by a valid
1 (1899) Koch's Reports p. 63 1894 edition at p. 184.
* 1 Ha tar a Cases, 27.* I. L. R. 35 Bombay 297.
Penderlan v. Pender lan
513
document to convey his rights to the 2nd defendant and no order madeagainst the 1st defendant could tend in the slightest degree to prejudicethe rights of the 2nd defendant under his agreement.
Mr. Wickremanayake, however, contends that the agreement to conveyland conveys no interest in the land itself but would give rise to an actionfor damages on failure to perform the contract. The agreement 2Dl,however, does not expressly stipulate for the payment of damages inthe event of default being made in conveying the property which isaltogether an express agreement to reconvey the land to the 2nd defend-ant within seven days of the 1st defendant obtaining the certificateof sale in the partition action. I do not think that in view of the terms ofthe agreement it is possible to contend that specific performance cannotbe compelled. The agreement therefore must be deemed to pass sufficientand adequate interest in the latid to the 2nd defendant to enable himnot merely to compel the 1st defendant to perform specifically theagreement but also to compel third parties deriving title from the 1stdefendant subsequent to the agreement to perform specifically the termsof the agreement. The plaintiff is one who would fall within the categoryof third parties deriving title from the 1st defendant after the 2nd defend-ant had acquired his rights under the agreement. No act that the1st defendant may do or suffer to be done after the execution of theagreement can prejudice the 2nd defendant. I am therefore of opinionthat the 2nd defendant’s title was in no way affected by the amendmentof the decree which was inoperative to vest in the plaintiff title to anyundivided share in the land.
For these reasons the judgment of the District Judge is set aside andthe plaintiff’s action is dismissed with costs both in this Court and theCourt below.
Windham J.—I agree.
Appeal allowed.