071-NLR-NLR-V-77-S.-A.-C.-PATHUMA-NATCHIYA-Appellants-and-A.-W.-M.-HANIFFA-Respondent.pdf
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Pathuma Hatchiya v. Baniffa
1974 Present: Perera, 3., Ismail, J., and Walpita, J.S. A. C. PATHUMA NATCHIYA, Appellants, andA. W. M. HANIFFA, Respondent
S. C. 171/70 (Inty.)—D. C. Kalutara, 1456/L
Execution of decree—Whether validity of the decree can be challengedon grounds not raised at the trial—Partition decree—Whether itsvalidity can be attacked collaterally in a different action.
In an action for declaration of title to a land, decree was enteredin favour of the plaintiff-respondent on the basis that she wasentitled to the land by virtue of a decree entered in a previouspartition action. At the stage of execution of the decree thedefendants-appellants claimed that the decree was bad and couldnot be executed on the ground that the decree in the partitionaction was a nullity as it had been entered without substitution fora party who had died pending the trial of that action.
Held, that the appellants were bound by the decree entered in thepresent action and could not be allowed to attack it at the stage ofits execution, least of all on grounds they did not urge at the stageof the trial.
A-PPEAL from an order of the District Court, Kalutara.
R.Manikkavasayar, for the defendants-appellants.
M.S. M. Nazeem, for the plaintiff-respondent.
Our. adv. vult.
WALPITA, J.—Pathuma Natchiya v. Haniffa
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March 28, 1974. Walpita, J.—
This is an appeal by the defendants-Petitioners-Appellants(here-in-after called the appellants) seeking to set aside theorder of the learned District Judge dated 18.8.70 allowing a Writof execution against the appellants. The plaintiff-respondent(here-in-after called the respondent) filed this action against theappellants, as administratrix of the estate of one A. W. M. Haniffaadministered in D. C. Kalutara Case No. 3875 (Testy.), for adeclaration of title to a defined lot 9 depicted in Plan No. 568 anddescribed in Schedule B to the plaint, for restoration of possessionof the plaintiff or heirs of plaintiff to the said land and damages.She claimed title on behalf of the estate of Haniffa on deedNo. 285 of 25.10.52 which had been given during the pendency ofthe Partition Case No. 28786 by one Ahamed Ali alias MohamedAli and that on the entry of the final decree the said Haniffabecame automatically entitled to the said lot No. 9. The appellantsfiled answer stating that on the said Ahamed Ali’s death theybecame entitled to his interests and that deed No. 285 of 52 wasin fact and effect a mortgage of Mohamed Ali’s interests and thesaid deed was bad in law on the ground of Laesio enormis. Theyalso pleaded that Haniffa never possessed any interests in theland. A question of prescription was also raised. The 3rd appellantclaimed title from the 1st and 2nd appellants by deed of transfer5958 of 67 and also filed a separate answer and claimed lot 9,which was allotted jointly to Ahamed Ali and the 4th defendantin that action, as he had purchased the 4th defendant’s interestson deed 6777 of 1968 besides Ahamed Ali’s interests on deed 5958of 1967 and that he was in consequence entitled to the entirety ofLot 9. At the trial in this case issues were raised according to thepleadings and the trial proceeded with. Judgment was entered infavour of the respondent on 25.5.69 declaring the respondententitled to 800/840 shares and the decree was thereafter enteredin terms of the judgment. When the respondent sought toexecute this decree the appellants objected to it on the groundthat the decree was bad as it was based on the transfer DeedNo. 285 referred to earlier which was a transfer of the rightswhich would be allotted in the partition decree in case No. 28766.The appellants also took up the position for the first time thatthe partition decree in D. C. 28766 was void as when the inter-locutory decree was entered the 18th defendant, i.e. the saidAhamed Ali alias Mohamed Ali was dead. And no substitutionhaving taken place the interlocutory decree was void and therights obtained by the respondent were therefore null and void.The learned District Judge made order on 18.8.70 rejecting theappellants’ objections to the issue of writ of execution in favour
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WAL. PITA, J.—Pafhitma Natchiya v. Haniffa
of the respondent, on the ground that the appellants are boundby the decree and the District Court has no power to set aside itsown decree or canvas the validity of such decree. The learnedDistrict Judge states in his order that the matters urged by theappellants ip regard to the validity of the partition decree wasnever taken at the trial in this case and besides there was noappeal from the said judgment and decree and that it is not opento the appellants at this stage to attack the validity of the decree.The learned District Judge referred to the observations of theCourt in 51 N.L.R. page 39 “ After a Court has acquired jurisdic-tion as well as a right to decide every question arising in thecause and however erroneous its decision may be, it is bindingon the parties until reversed or annulled ”—in the result theDistrict Judge rejected the appellants’ objections. It is from thisorder that the appellants have appealed. We were referred to66 N.L.R. 57, 68 N.L.R. 36, 76 N.L.R. 413, where a partition decreewas declared a nullity when it was entered without substitutionfor a party who had died pending the trial.
We are of the view that the decision in those cases are notapplicable to the present case. There is the decree in this case, ithas not been set aside and it determines the rights of parties inthis case, i.e. the rights of the appellants and the respondent andit is final between the parties, and binding on them. The respon-dent merely seeks now to execute this decree. The appellants whoare bound by this decree cannot be allowed to attack this decreenow, least of all on grounds they did not urge at the trial of thiscase. The District Court was only concerned at this stage inenforcing this decree and any inquiry into its regularity orvalidity cannot be considered now.
We are of the view therefore, that the learned District Judge’sorder was correct and that this appeal must be rejected. Theappeal is therefore dismissed with costs.
Perera, J.—I agree.
Ismail, J.—I agree.
Appeal dismissed.