CATHERINAHAMI et al. v. BABAHAMY et al.

Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,

and Mr.Justice Middleton.

 

CATHERINAHAMI et al. v. BABAHAMY et al.

 

SIMON DE SILVA et al., Added Defendants, Appellants.

 

D.C., Galle. 8,085.

 

Partition suit-Interlocutory decree-Decree allotting shares-Final decree -Conclusiveness-Order for sale-Certificate of sale-Partition Ordinance {No. 10 of 1863), ss. 4, 6, and 9.
 

The decree in a partition suit which is conclusive under section 9 of the Partition Ordinance (No. 10 of 1863) is the final decree allotting the shares in severalty, and in the case of a sale, where a sale is ordered in lieu of a partition, it is the confirmation and completion of the sale by the issue of the certificate of Court under section 8 of the Ordinance.

    Assena Marikar v. Usuba Lebbe 1 and Edo et al. v. S. L. Markar Uduma Lebbe Markar et al.2 disapproved and not followed.
 

    Judgment of Lawrie J. in 450 C. R. Matara, 622,3 approved and followed.

 

THIS was a partition suit. On June 14, 1907, a Commissioner was appointed to partition the land, the commission being made returnable on July 16, 1907. On June 26, 1907, Mr. E. Gooneratne, proctor for the added parties, filed statements of claim, and moved for a notice on the plaintiffs to show cause why the claims should not be accepted. The plaintiffs opposed the application, and the District Judge (K. Macleod, Esq.) made the following order:-

    " I think I am bound to follow the Supreme Court judgment in Fernando v. Fernando et al. 4 until it is over-ruled. The practice in this Court has uniformly followed the judgment referred to ever since it was delivered. I dismiss Mr. Gooneratne's application with costs."
 

 The added defendants appealed.

Van Lahgenberg, for the added defendants, appellants.

H. A. Jayewardene (A. St. V. Jayewardene with him), for the plaintiffs, respondents.

Cur. adv. vult.

January 29, 1908.   HUTCHINSON C.J.-

    This is a partition action. After service of the summons on the defendants a survey was directed to be made. At the survey one of the present appellants, none of whom were parties to the proceedings, appeared and claimed two strips of the land which was included in the plaint and in the survey; and the surveyor stated this in his report dated August 18, 1906, and made to the Court on January 7, 1907.

 

1(1879) 1 S. C. C. 19.    3 (1899) Koch's Reports 13.

2(1879) 2 S. C. C. 114.   4 (1905) 9 N. L. R. 241 at p. 244.

 

The plaintiff after the survey had the case fixed for hearing, and on February 26,   1907,  there was what the District Judge calls an January 29. ex parte trial; no notice whatever was taken of the claim which the surveyor  had  reported;   the   only  evidence   taken   was  that   of  the         second plaintiff; and upon his statement as to the title of the plaintiffs  and  the  defendants,   and  that   there   were  no  other  claimants (which was not the fact), judgment was given on March 18, declaring that  the  parties   were   entitled   to   the   land   in   certain   shares   and ordering a partition in those shares.
 

On June 19 a commission was issued to partition the land. On June 26 the appellants applied that the Commissioner should be directed to stay the partition pending inquiry into their claim; this-application was heard on September 13, when the District Judge dismissed it, saying that he was bound to follow the judgment in 9 N. L . R. 244, meaning, apparently, that that judgment decided that the interlocutory decree in a partition suit is binding and conclusive under section 9 of the Partition Ordinance, No. 10 of 1863.

`    The judgment in 9 N. L. R. 244 contains no decision on the point. But there are other reported cases in which the question whether the ?decree " mentioned in section 9 is the interlocutory decree or the final decree was discussed. In Assena Marikar v. Usuba Lebbe

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