MADURAPPERUMA

Vs.

WIJESUNDARA AND OTHERS

COURT OF APPEAL
GOONERATNE, J.
SAMAYAWARDHENA, J.
CALA/459/2006
DC AVISSAWELLA 421/P
SEPTEMBER 20, 2019

Partition Law, No. 21 of 1977, sections 25, 48, 49, 69, 79 - Finality of the Interlocutory Decree-Default proceedings in Partition Law-Jurisdiction of the District Court to set aside Partition Decrees

The plaintiff filed this appeal against the Order of the District Judge whereby, upon the application of the 3A defendant, the Judgment and

Interlocutory Decree entered by his predecessor were set aside and trial de novo was ordered on the basis that the case had been taken up for trial without due notice to the new registered Attorney of the 3rd defendant. The District Judge relied on Umma v. Zubair [2002] 3 Sri LR 169 to arrive at this decision.

Held:

1. Section 48(1) of the Partition Law invests Interlocutory and Final Decrees of partition with finality notwithstanding any omission or defect of procedure (subject to sub-sections (4) and (5) of section 48; and any decision on any appeal which may be preferred).

2. The law regarding default proceedings in Partition Law may be summarised as follows:

Before the Judgment is delivered, a party in default can, in terms of section 25(3) of the Partition Law, make an application to the District Court to participate at the trial.

Before the Judgment is delivered, a non-party can, in terms of section 69 of the Partition Law, make an application to the District Court to be added as a party in order to participate at the trial.

After the Judgment, a party can make an application to the District Court to set aside the Judgment and the Interlocutory Decree entered only upon the limited grounds and circumstances set out in section 48(4) of the Partition Law.

After the Judgment, a non-party can make an application to the District Court to set aside the Judgment/Interlocutory Decree/Final Decree under section 48(5) only on the ground that the Decree has been entered by a court without competent jurisdiction.

3. Save and except the instances mentioned above, the District Court has no jurisdiction to set aside Judgments/Interlocutory Decrees/ Final Decrees by purportedly invoking the inherent jurisdiction of the court.

4. Umma v. Zubair [2002] 3 Sri LR 169 does not represent the correct position of the law.

5. The default proceedings spelt out in the Civil Procedure Code are inapplicable in partition actions.

6. After the Judgment, those who do not come under section 48(1) may seek relief from the Court of Appeal by way of revision or restitutio in integrum. The aggrieved party may also file an action for damages under section 49 of the Partition Law.

7. The entering of the Decree is a purely ministerial act and the Interlocutory Decree once entered relates back to the date of the Judgment: section 48 becomes applicable from the date of the Judgment.

Cases referred to:

1. Umma v. Zubair [2002] 3 Sri LR 169
2. Somawathie v. Madawala [1983] 2 Sri LR 15
3. Koralage v. Marikkar Mohamad (1988) 2 NLR 299
4. Perera v. Adline [2000] 3 Sri LR 93
5. Navaratne Manike v. Padmasena [2010] 2 Sri LR 165.
6. Jayaratne v. Premadasa [2004] 1 Sri LR 340
7. Petisingho v. Ratnaweera (1959) 62 NLR 572
8. Ariyaratne v. Lapie (1973) 76 NLR 221
9. Dissanayake v. Elisinahamy [1978-79] 2 Sri LR 118
10. Koralage v. Marikkar Mohomed [1988] 2 Sri LR 299
11. De Fonseka v. Dharmawardena [1994) 3 Sri LR 49
12. Jeyaraj Fernandopulle v. Premachandra [1996] 1 Sri LR 70
13. Anthony Appu v. Margret Fernando [1999] 3 Sri LR 85

APPEAL from the Judgment of the District Court of Avissawella.

Rohan Sahabandu, P.C., with Hasitha Amarasinghe for the Plaintiff-Appellant.

M.U.M. Ali Sabry,P.C., with Sanjeewa Dasanayake for the 3A Defendant-Respondent.

cur. adv. vult.

October 3, 2019

SAMAYAWARDHENA, J.

The plaintiff filed this appeal with leave obtained against the Order of the learned District Judge of Avissawella dated 03.11.2006 whereby, upon the ap