026-NLR-NLR-V-59-S.-UKKU-Petitioner-and-M.-SIDORIS-and-other-Respondents.pdf
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Ukkii v. Sidoris
1957Present : H. N. G. Fernando, J., and T. S. Fernando, J. –
S. UKKU, Petitioner, and M. SIDORIS and others, Respondents
S. C. 492—Ik tiie matter of an Application in Revision or forRestitutio-in-integrum in D. C. Kegalle, 9,355.
Partition action—Interlocutory decree—Scope of its finality—Lunatic—Failure- to appoint manager—Effect—Civil Procedure Code, ss. 480, 501—PartitionAct, Ko. 16 of 1951, s. 48.
Section 48 of the Partition Act Kb. 16 of 1951 -which enacts that an inter-locutory decree shall, subject to tho decision’ of any appeal which may bepreferred therefrom, be final and conclusive for all purposes against all porsonswhomsoever does not affect the extraordinary jurisdiction of tho SupremoCourt exercised by way of revision or restitutio in integrum where circum-stances exist in which such extraordinary jurisdiction has been oxercised inthe past.: '-
Therefore, where tho Court orders interlocutory decree to bo entered in* tho absence of, and despite tho fact that it i3 awaro of tho need for, the appoint-ment of a manager in respect of tho interests of a defendant who is o lunatic,such defendant would not be bound by tho interlocutory decreo entered in.contravention of tho provisions of section 4S0 rend with section 501 of thoCivil Procedure Code. Xn such a cose, section 4S of tho Partition Act No. 16of 1051 would not be a bar to relief being granted, in revision or by way of
T. S. F-ERIsTAXDO, J.— I'lJLu r. Sidoris
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restitutio in integrum, (1) setting aside tlio order directing that interlocutorydecree bo entered and (ii) giving an opportunity to tlio defendant to filo hisstatement of claim.'
.A. PPLIC ATIOX in revision or for restitutio in integrum in respect ofan order of the District Court, ICegalle.
R. Gunaralne, for the 1st defendant-petitioner.
S. If. Jayasuriga, with N. Abeysinghe, for the 5th and 7th defendants-respondents.’
S. Sharvananda, for the plaintiffs-respondents.
Cur. adv. vull.
August 19, I9o7. T. S. Febxaxdo, J.—
This is an application by the 1st defendant, a lunatic, appearing bythe 9th defendant, the manager of her estate duly appointed by court,seeking (i) the setting aside of an order directing that interlocutorydecree be entered in a partition case, and (ii) an opportunity for her tofile her statement of claim in that case. The facts giving rise to theapplication may be stated shortlj'- as follows :—
The action for partition of the land in question was instituted on29th January 1954, and the plaint contained an averment that the1st defendant was entitled to a G/12th or a half-share of the land.The caption of the plaint contained a reference to the fact that the1st defendant was a lunatic. After certain preliminary steps had beentaken in the case, the proctor for the plaintiffs filed papers on 29thJuly 1954 seeking the appointment of the present 9th defendant asmanager of the 1st defendant’s estate. Although notice issued onthe 9th defendant for 20th September 1954 and the 9th defendantwas present in court that day, no appointment of manager was made,and thereafter the requirement of such an appointment appears tohave been overlooked both by the plaintiffs and by the Court.
The trial took place on 31st May 1955. On this date the only partieswho appeared or were represented were the plaintiffs and the 6th andSth defendants. The following having been entered of record in thecase,
.“ All the disputes in the case are settled. It is to be noted that
the settlement of the dispute in this case is not to prejudice the rightsof parties in other lands of the same inheritance.”.
the plaintiffs, through the uncontested evidence that day of the 1stplaintiff, sought to support the title of the several parties to the case.In his evidence, the 1st plaintiff, who had earlier stated iii his plaint -that the 1st defendant was entitled to a. half-share, supported her title ■
92■T. S. FBRKAKDO, J.—Ukku v. Sidoris^__
only to the extent of a quarter-share of the land. No explanation ofthe discrepancy between the share allotted in the plaint and that admittedin the course of the 1st plaintiff’s evidence was attempted ; and the. learned District Judge delivered judgment on 15th June 1955 orderinginterlocutory decree for partition to be entered according to the sharesdisclosed in the evidence of the 1st plaintiff. .'.
On 22nd September 1955—at a time when the ministerial act ofentering the decree in terms of the judgment of 15th June 1955 hadnot yet been performed—the proctor for the plaintiffs moved t)ie courtthat his application of 29th June 1954 for the appointment of the 9thdefendant,as manager of theestate of the 1st defendant " be now allowedsince by an oversight it was not so done on 20th September 1954 The9th defendant was present in court on 22nd September 1955 and'consented to his appointment, and the appointment was accordinglymade on that dajn On 22nd November 1955, the act of appointmentalong with a proxy by the 9th defendant in favour of Mr. Abeywickreme,proctor, was filed in court-. .When the appointment was filed the Courtmade order that the case be called on 13th December 1955, and on thatday Sir. Abeywickreme moved for a date for the filing of the statementof claim by the manager of the 1st defendant’s estate. On the 6thdefendant objecting to any statement of claim being so filed, the matterof this objection was set down for inquhy, and after inquiry in duecourse the learned District Judge made order on 31st May 1956 statingthat he had no power to allow the application of the manager, the 9thdefendant. The application to this court was thereafter made bn20th November 1956 seeking the relief already referred to above. -. :
As the District Court was aware of the need for an appointment ofmanager both at the time of the filing of the plaint and after its atten-tion was pointedly drawn to the matter on 13th July 1954 {vide journalentry of that date) and again by the plaintiffs’ application of. 29th July1954 for the appointment of a manager of the 1st defendant’s estate,it is obvious that the trial should not have been held on 31st May 1955in the absence of such an appointment. The Court should have knownthat the 1st defendant had been given no opportunity to file a statementof claim if she so desired. It is possible that the plaintiffs themselvesbelieved that the appointment of a manager had in fact been madeand that no statement of claim was being filed. That belief mayaccount for the fact that when the manager sought to fire a statementthe plaintiffs themselves did not see it fit to raise any objection. Asthe 1st defendant who was a lunatic at all material times was notrepresented in the case he would not, in my opinion, be bound by aninterlocutory decree entered in the circumstances related above—videsection 480 read with section 501 of the Civil Procedure Code. – I donot therefore consider that an interlocutory decree could have beenregularly entered or, even if entered, would have been binding on the1st defendant-. The case before us, being one in which a lunatic’s pro-perty is affected is stronger on the facts than the case of Menchinahamyv. Muniweera 1 where, as a result of the heirs of a deceased defendant
(i960) 52 X. L. R. 409.
Guneicardene v. Guncwartlene-
03
not being substituted as parties, this Court by way of restitutio-in-integrum set aside an interlocutory decree entered in a partition ■ easeeven after that decree had been subsequently affirmed in appeal by theSupreme Court.-
It may be mentioned that counsel appearing before us for two of theother defendants in the case did not object to the granting of the presentapplication. The plaintiffs/although thej' do not appear to haveobjected to the application made by the 9th defendant to the DistrictJudge for an opportunity to file a statement of claim, resisted the appli-' cation made to this Court, and their counsel relied on section 4-S of thePartition Act, No. 1C of 1951, as being a bar to relief being now grantedto the 1st defendant. While that section enacts that ail interlocutorydecree entered shall, subject to the decision of any appeal which may bepreferred therefrom, be final and conclusive for all purposes againstall persons whomsoever, I am of opinion that it does not affect theextraordinary jurisdiction of this Court exercised by way of revisionor restilutio-in-integrum where circumstances in which such extra-ordinary jurisdiction has been exercised in. the jJast are shown to exist.It may be mentioned that notwithstanding the provisions of sections9 and 20 of the repealed Partition Ordinance (Cap. 56), the right of theSupreme Court to exercise in partition actions its powers in revisionand by way of restitut'io-hi-integrum has never been doubted.
I have already stated above why I consider that the interlocutorydecree ordered to be entered in this ease cannot bind the 1st defendant.
I would therefore set aside the judgment of the District Court dated15th June 1055 and direct that the 1st defendant be permitted anopportunity to file a statement of claim and that the trial be held in duecourse thereafter.•
The plaintiffs will pay to the 1st defendant, her costs of this application.
H. N. G. Ferxaxdo, J.—I agree..
Order set aside.