SINNATAMBY v. NALLATAMBY.

SINNATAMBY v. NALLATAMBY.

D. C., Colombo, 13,943.

Judgment-Consent decree entered by mistake-Suit for partition of land according to consent decree in previous case-Prayer of defendant in reconvention to cancel such decree-Propriety of such prayer.

    Where a defendant prayed in reconvention that a decree which had been duly entered by consent against him by a District . Court in a previous suit, and upon which the plaintiff based his present action for partition of a land against the defendant, be cancelled on the ground that his consent had been given by mistake,-

    Held, that such prayer was in the nature of a claim of restitutio in integrum, and that that remedy could not be sought in a separate action, but must be obtained in the same action by application on due materials to the Supreme Court for an order to the Judge of the lower Court to investigate the matter.

THIS was a suit for the partition of two lands. The plaintiff alleged himself to be the owner of one-half thereof, and the defendant of the other half, by virtue of a judgment pronounced by the District Court of Colombo in case No. 13,430, which he pleaded as res judicata.

    The defendant answered that the judgment in case No. 13,430 was entered by mistake and should be cancelled. He claimed the whole of the two lands and prayed that the judgment pleaded as res judicata be' cancelled.

    On the day the issues were discussed the learned District Judge {Mr. D. F. Browne) held that the defendant's prayer in the present case for a cancellation of that judgment could not be entertained by him in the present action, and that the proper procedure to be followed by them was to apply to the Supreme Court on proper materials in the same case in which that judgment was delivered to investigate and report on the allegation of mistake.

    The defendant appealed. The case was argued on 24th August, 1903, before the Full Bench, consisting of Wendt, J., Middleton, J., and Grenier, A. J.

    Walter Pereira, for appellant.-In Pereira v. Ekanaike (3 N. L. R. 21) it was held that a judgment obtained by fraud or passed under a mistake might be set aside either by a regular action or possibly by application by way of summary procedure. No provision occurs in the Procedure Code enabling a party to seek the remedy of restitutio in integrum. In Holland, the Supreme Government only granted restitution, and this power has not been vested in the Supreme Court of this Island or any lower Court by any Ordinance. The Supreme Court of the Island has the power of revision, but that is different from the remedy of restitutio in integrum which was granted by the Roman-Dutch Law in cases of obligations entered into through fear or duress, or where there was mala fides or minority or the like (2 Kotze, pp. 342-347 and 428-431). It has always been the practice in Ceylon to institute regular actions in all such cases. The prayer of the defendant in reconvention to set aside the judgment pleaded as res judicata is in the nature of a regular action, and the District Judge should not have disallowed it. The ruling in Goonaratne v. Dingiri Banda (4 N. L. R. 249) is not well founded.

    Sampayo, for plaintiff, respondent.

Cur. adv. vult.

14th September, 1903. WENDT, J.-

    This is a partition action, in which plaintiff claims one-half of the common property and assigns the remaining half to the first and second defendants. The third defendant, a daughter of first defendant, has died pending this appeal. The second defendant is her husband. Plaintiff's allotment of shares is based upon a consent decree passed on 22nd June, 1900, in an action (No. 13,430) brought by him against the same defendants for a declaration of title. The land was in 1856 devised by the joint last will of the original owners to one Francina to be possessed by her for life, subject to the condition that after her death it should rever

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