079-NLR-NLR-V-45-YOKKOMUTTU-Appellant-and-SAMINATHAN-Respondent.pdf
316
Yohkomuttu and Saminathan
1944Present: Moseley S.P.J. and Wijeyewardene J.YOKKOMUTTU, Appellant, and SAMINATHAN, Respondent.
272—D. G. Point Pedro, 1,746.
Alienenemy—Defendantsin partitionaction—Actionnotsuspended—Decree
for sale in partition action—Proceeds of sale to be given in charge of
Custodian ofEnemy Property.
An action is not suspended merely because an alien enemy is adenfendant.
There is no rule of taw which prevents an alien enemy from appearingand conductinghis defence.
Where, in a partition action, some of the defendants are alien enemiesand a decreefor sale isentered,theproceedsofsaletowhich such
defendants would be entitled should be retained in Court pending suchAction by theCustodian ofEnemyPropertyashemaythinkfit.
1 124 L. T. 327.2 40 Times L. It. 541.
MOSELEY J.—Yokkomuttu and Saminathan
317
A PPEAL from a judgment of the District Judge of Point Pedro.
N. Xadarajah, K.C. (with him H. TF. Thambialt), for the appellant.
A. Rajapakse (with him Arulambalam), for the respondent. •
Cur. adv. vv.lt.
June 9. 1944. Mosell,ey J.—
This is a partition action in which an order for sale of the land has beenmade. The third and fourth defendants have appealed against thatorder on the ground that the first and second defendants, who were,at the datd of action brought, resident in Malaya, have not been properlyserved with the summons. On March 13, 1943, on the application of theplaintiff, it was ordered that service on the first and second defendantsshould be effected by service on the second defendant’s mother who wasalleged to be in possession of their share of the land. This was done,but no answer was filed on behalf of the first and second defendants.On June 24 there was a trial without contest and the order for sale wasmade.
It is now urged by the appellants that the decree should be set asideinasmuch as at all relevant times the first and second defendants werein the position of enemy aliens owing to the Japanese occupation ofMalaya, and that the Custodian of Enemy Property is the proper personto be served with summons on their behalf. It is, I think, common groundthat, apart from existing conditions, service on first and second defend-ants has been in compliance with section 3 of the Partition Ordinance(Cap. 55), and it is also conceded that these two defendants must beregarded as alien enemies for the purposes of the Defence Trading with theEnemy Regulations, 1939.
The right of an enemy alien to resort to the King’s Courts was con-sidered at length by the House of Lords in SOVFEACHT (V /O) andVAX UDENS SCHEEPVAAET EN AGENTUUR MAATSCHAPPIJ(N. V. GERE) 1943 A.C. 203) and it was held that no such right existssave by permission given by royal licence. The right of one of HisMajesty’s subjects to sue an enemy alien in our Court appears to be on adifferent footing. In Robinson & Co. v. Continental Insurance Companyof Mannheim1 Bailhaehe J. arrived at the conclusion that there is norule of common law which suspends an action in which an alien enemy isdefendant, and no rule of common law which prevents his appearing andconducting his defence. It should be added that the learned Judgeforesaw the possibility of a difficulty if the defendant should succeedwhen the question of cost would arise. That, of course, is a positionwhich presents itself in the present case where the first and seconddefendants, in spite of their position as such, stand to gain by the decreeas it stands. Such a difficulty, Bailhaehe J. thought, would be met bysuspending the defendant’s right to issue execution.
It is necessary then to consider to what extent this common law rightof an enemy alien to defend an action is affected by the Defence Tradingwith the Enemy Regulations, 1939. Under regulation 6a, it is providedthat the Governor may, by order, inter alia, vest in the Custodian of
1 (1915) 1 K. B. 155.
318
Mihular and Nalliah
Enemy Property, such enemy property as may be prescribed. If sucb anorder has been made in respect of the property in question there can he nodoubt that the proper person to be served with summons in this case isthe Custodian of Enemy Property. It has not been shown to us that suchorder has been made. In these circumstances I do not think there can beany objection to the manner in which service has actually been effected.It seems to me that the decree must be affirmed.
If the matter were to be allowed to rest there, it is conceivable that theshare of the proceeds of the sale, to which the first and second defendantsare entitled, might fall into enemy hands, and I think prosecutions shouldbe taken on the lines suggested by Bailhaehe J. above. The DistrictJudge is therefore directed to retain in Court any monies due to thefirst and second defendants and to serve the Custodian of Enemy Propertywith notice of the decree in order that he may take such steps as he maythink proper and as are open to him to protect such monies until afterthe war.
The appeal is dismissed with costs.
Wijeyewardene J.—I agree.
Appeal dismissed.