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NAGOOR PITCHE v. PAKEER et al.
NLR5V77
NAGOOR PITCHE v. PAKEER et al.
D. C., Kandy, 13,455.
Partition case-Defendants not to be found-Ordinance No. 10 of 1863, s. 5- It shall be lawful "-Application to issue commission for partition- Notice thereof, on whom to be served-Discretion of District Judge.
Under section 5 of the Partition Ordinance, a District Judge having decreed partition has no power to refuse to issue a commission for partition, on the ground that notice of the application should be personally served on defendants who are not to be found in the Island.
Where in the absence of the defendants who were reported to be in India, notice of the application for a commission to partition bad been given by the plaintiff to the party in actual possession of the property, who was the lessee of it,-
Held that the appointment of a commissioner to partition the land may be made without personal service of. the application on the defendants.
IN this partition suit there were five defendants. The fifth defendant only appeared and the remaining four were said to be resident in Tanjore, South India. As their address was not known, the summons intended for them was, by order of the District -Judge, served on one A. M. Lebbe, who was in actual possession of the property sought to be partitioned. The title of the parties having been proved, it was decreed that the plaintiff and the defendants were each entitled to an undivided one-sixth share in the houses and grounds in question,. and that the shares of the plaintiff and of the fifth defendant be partitioned.
Thereupon plaintiff applied that a commission be issued to a licensed surveyor to partition the property. The District Judge ordered that notice of the application be given to the other side. Notice was given to the fifth defendant, and as the other defendants could not be found, notice was served on A. M. Lebbe as before, he being the lessee of the property. The fifth defendant did not appear.
The District Judge (Mr. J, H, de Saram) held as follows: -
" I have some difficulty about this matter. The Ordinance No. 10 of 1863, section 3, provides for service upon the person in the actual possession of the property if any of the defendants cannot be found. Section 6 provides that the notice which the parties should receive of the day fixed for considering the return of the commission shall be served in the same way as the original summons. Section 5 which provides for the issue of a commission is silent as to any notice being given to the other side when one of the parties applies to issue a commission for partition.
" Now it seems to me that, although the section does not expressly provide for the giving of notice, it is clear from its terms that notice should be given. It enacts as follows: -
" ' When a decree of partition has been given, it shall be lawful ' for the Court, on the application of any party to the suit, to issue ' a commission addressed to such person or persons as shall be ' agreed upon by all the parties to such suit as shall be willing to ' execute the same; or if the parties cannot agree upon any such ' person, then to some fit person named by the Court who shall ' be willing to execute the same.'
" When I indicated my difficulty to Mr. Beven, who appears for the plaintiff, he said the action did not require notice to be. given to the other side, and that although he issued notice in accordance with my order, notice was not really necessary.
" I do not think so. The defendants are entitled to know who is to execute the commission and to agree or object to the commission being issued to him. How can they do the one or the other unless they have notice? As in my opinion the first, second, third, and fourth defendants, who are said to be in India, are entitled to receive notice, and as the Ordinance does not provide for the service of it in the same way as the original summons, I must fall back on the Civil Procedure Code an
