094-NLR-NLR-V-36-THAMBIRAJAH-v.-SINNAMMA-et-al.pdf
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MAARTENSZ J.—Thambirojah v. Sinnamma
1935- Present: Maartensz J.
THAMBIRAJAH v. SINNAMMA et al.
235—C. R. Anuradhapura, 16,789.
Partition action—Final decree entered—Summons not served on party—Application to vacate decree—Powers of Court.
A Court has power to vacate the final decree entered in a partitionaction upon proof that summons had not been served upon a party tothe action.
A
PPEAL from a judgment of the Commissioner of Requests,Anuradhapura.
C. V. Ranawake, for the first defendant, appellant.
P. Tiyagarajah, for the plaintiff, respondent.
April 5, 1935. Maartensz J.—
This is an action for the partition of a land called Batugahahena aliasKongahahena which admittedly belonged to Ranhamy Veedi Arachchiand Chettiar Thandavanayer in equal shares. The share of the former
MAARTENSZ J.—Thambirajah v. Sinnamma.
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has passed to the second and third defendants. The plaintiff allots tohimself and his wife, the first defendant, the half share of the latter.Summons was reported to have been served on the first defendant and^the other defendants ; evidence was recorded on February 18, 1931, andan interlocutory decree entered in terms of the prayer of the plaint.Final decree was entered on September 16, 1931. On June 14, 1934,the first defendant filed a petition and an affidavit in which she statedthat she had not been served with summons; that the plaintiff is not anheir of Thandavanayer and that she is entitled to the whole of that halfshare, and moved that the decree entered in the case be set aside.
The learned Commissioner acceded to the request of the parties that heshould first determine the question whether he had authority to set asidethe decree even if the allegations in the first defendant’s petition andaffidavit were true. He has held on the authority of certain casesreferred to by him that he had no jurisdiction to set aside the inter-locutory decree and the final decree entered in the case. He did so on theauthority of two cases—Randeni v. Allis Appu1 and Ranhamy v. Perera *.The latter case was a decision which proceeded on entirely differentfacts and is not apposite to. the question for decision in this case. Butthe former case certainly supports the order of the learned Commissioner.That case however wasdecided in1900 and since then thetrend of
authority is against it.In the caseof Pererav. Fernando *the final
decree was set aside because, among other reasons, summons was notserved on the appellant. In the case of Podi Sinno v. Coyanis Appu ‘it was held that the District Judge had jurisdiction to amend the decreeon the application of a party to the suit who had not received notice oftrial. It is true that since that case it has been held that a party who isserved with summons isnot entitledto receivenotice of thetrial—see
Kannangara v. Silva*. But that decision doesnot interferewith the
principle laid down in the case of Podi Sinno v. Coyanis Appu (supra).Finally in the case of Caldera v. Santiago Pillai" it was held that theDistrict Court had jurisdiction to set aside a decree on the applicationof a party to the suit who had not been served with summons.
Whatever my own opinon may be, I think I must follow the trend ofrecent authority and I set aside the order appealed from and send the caseback for the Commissioner to determine whether the first defendant hadbeen served with summons. If he finds that she has not been servedwith summons he will set aside the interlocutory decree and the finaldecree and entertain the claim made by the first defendant and proceedwith the trial de novo.
The costs of this appeal will be paid by the first defendant if she is notallowed to intervene in the suit on the ground that she has been servedwith summons. If an order is made in her favour, the plaintiff will payher the costs of the appeal. Each party will pay his or her costs of theproceedings of July 24, 1934.
Sent back.
(1900) I Broien's Reports 284.*34 N. L. R. 437.
(1902) 3 Drown'* Reports 5.
* (1919) 6 Ceylon Weekly Reporter 118.a (1933) 35 N. L. R. 1.
« (1920) 22 N. L. R. 255.