JANE NONA AND OTHERS VS. SURABIEL AND OTHERS

COURT OF APPEAL
CHITRASIRI J.
CA 499/98 & 499A/98
DC HORANA 231/P
MAY 28,2013
JUNE 3, 2013

Partition Law 21 of 1977 as amended by Act, No.17 of 1997 Sections 48, 81 - Substitution - Judgment delivered without substituting heirs - Some parties died whilst case was pending in the trial Court -Application to send case back to the trial Court for retrial - Refused - Was the decision given in Karunawathie Vs. Piyasena [S.C.] made per incuriam? - Starre Decisis.

Held:

(1) A decision per incuriam is one given when a case or statute has not been brought to the attention of Court and it was given in ignorance or forgetfulness of that case or that statute.

Per Chitrasiri J.

I have perused the judgment in Karunawathie vs. Piyasena carefully and could not find any reference therein to the provisions of Section 81 of the Partition Law 21 of 1977 as amended by Act 17 of 1997.

(2) It is clear that Section 48 of the Partition Law 21 of 1977 as amended by Act 17 of 1997 is drafted to ensure the final and conclusive nature of a decree in a partition action even if no substitution has been effected to represent a