NIMALAWATHIE
VS.
PERERA & ANOTHER

COURT OF APPEAL
DEEPALI WIJESUNDARA, J.
M.M.A GAFFOOR, J.
CA 262/2006 (REV)
DC COLOMBO NO. 19202/P
February 10, 2015.

Partition Law, No. 21 of 1977 - Sections 48, 49, Section 69 - Final Decree entered - Application to set aside the Decree - Not a party to the Partition case - Exceptional circumstances-Laches - Finality of the Partition Decree - Evidence Ordinance- Section 44 - Alternative Remedy ?

The Petitioner who was not a party to the partition action moved by way of Revision to set aside the final Decree and sought a trial de novo.

Held:

[1] Revision is a discretionary remedy, no one can invoke the Revisionary jurisdiction of the Court of Appeal as a matter of right.

[2] The Petitioner has not averred any exceptional circumstances warranting the exercise of Revisionary Jurisdiction and further the Petitioner has not given any reason for this inordinate delay.

Per Gaffoor, J.

"Proposition that a Decree entered in a Partition action is a Decree in Rem and it binds the whole world is manifest from the provisions of Section 48(1) of the Partition Act No. 21 of 1977 "

(3) In terms of Section 48(3) the Decree entered in a Partition action shall have the final and conclusive effect declared by sub section 1 of Section 48 - Notwithstanding the provisions of Section 44 of the Evidence Ordinance and accordingly such provisions shall not apply to such Decree Even if a Decree in a Partition action was obtained fraudulently or collusively, the Decree cannot be impeached applying section 44 of the Evidence Ordinance.

[4] Since the Petitioner was not a party to the action, setting aside the interlocutory and final Decree would not make her a party in the case as she was not a party at the time judgment was delivered.

Petitioner cannot say that she is left with no relief Rights of persons who are not parties to a partition action are protected by Section 49 of the Partition Law.

APPEAL from the Judgment of the District Court of Colombo.

Cases referred to:

1. Hotel Galaxy (Pvt) Ltd. Vs. Mercantile Hotels Management Ltd - 1987 - 1 SLR 5
2. Bank of Ceylon Vs. Kaleel and others - 2004 - 1 SLR 284
3. Lokuthuttiripitiyage Nandawathie Vs. M.D. Gunawathie and others -CA 769/2000 - DC Mt. Lavinia 33/92/P
4. Odiris Appuhamy Vs. Caroline Nona -66 NLR 241
5. Norris Vs. Charles - 63 NLR 501

J .M. Wijebandara with N. Suresh Chandra and S. Wickramasinghe for the Petitioner

Mudithara Premachandra for the Defendant - Respondent.

Cur.adv.vult.

May 07, 2015

GAFFOOR J.

This is a Revision Application in which the Petitioner is seeking to set aside the interlocutory decree entered on 23.10.2003 and the final decree entered on 21.04.2004 in the District Court of Colombo in case No 19202/P. The Petitioner in this application was not a party to the partition case, but the Plaintiff Respondent and the Defendant Respondent are the parties before the original court.

The Petitioner states in paragraph 18 of the Petition that -

(a) No title was disclosed by the Plaintiff;

(b) The Plaintiff relied for her title on a Deed of Declaration executed in 2000 and the Defendant had admitted it;

(c) There was no contest between the parties;

(d) Plaintiff has not taken steps to notice the Petitioner;

(e) After obtaining the decree, the Respondent without moving for execution of the decree had sought an order in the Magistrate's Court under Section 66 of the Primary Courts Procedure Act;

Wherefore she prays for the following, inter alia, reliefs set out in the Petition, namely

(i) To set aside the said interlocutory decree and the final decree entered by the District Court;

(ii) To make order allowing the Petitioner to enter into the case and file statement of claim;

(iii) To direct the District Judge to have a trial de novo;

(iv) To stay the execution of the writ;

EXCEPTIONAL CIRCUMSTANCES AND LACHES

Revision is a discretionary remedy