1916 Present: Wood Renton C.J. and Ennis, Shaw, and De Sampayo JJ.

IBRAHIM v. BEEBEE et al.




359 and 360-D. C. Colombo, 35,439.

Necessary parties not made . respondents to an appeal-Notice of appeal not given to parties made respondents-Security for costs where there are several respondents-Secretary of Court appointed Commissioner for sale in partition cases-Practice condemned- Application for revision of a final decree in partition suit by third party claiming a share-Final decree not signed-Intervention after date of order.

[Per FULL BENCH.]-It is necessary, for the proper constitution of an appeal, that all parties to an action who may be prejudicially affected by the result of the appeal should be made parties, and. unless they are, the petition of appeal should be rejected.

Notice of the appeal must be given to the respondents.

An appeal defective owing to non-joinder of necessary respondents can be remedied in a proper case by an order of Court under section 770 of the Civil Procedure Code, directing those parties to be added or noticed.

Per SHAW J.-Such order would seem to be entirely discretionary, and I should not myself be disposed to amend the proceedings when the appeal is actually before the Court for hearing, unless some good excuse was given for the non-joinder or notice, or unless it was not very apparent that the parties not joined might be affected by the appeal.

Where the appellant in a partition case furnished security for the costs of appeal of only the plaintiff- respondent, whose interests were not in conflict with those of the first defendant-respondent, held, that the provision of the Code as to giving security was complied with.

Per WOOD RENTON C.J. and DE SAMPAYO J.-The Supreme Court has no power to set aside the final decree in a partition suit acting in revision, on the ground that a person who had a share in the land was not made a party to the partition proceedings and was thus deprived of his share.

If a Judge intentionally defers signing a final decree in a partition suit pending the satisfaction of some further requisition, there would be no decree, and in the meantime an intervention is possible. But where the investigation is complete and the Judge intended to sign the decree at once, but only omitted to do so by inadvertence, intervention cannot be allowed thereafter. In such circumstances as these the signing of the decree is a ministerial act, which may be done at any time, and the decree when signed will be operative as from the date of the judgment.

APPEAL from judgment of the Acting Additional District Judge of Colombo (W. Wadsworth, Esq.)

The facts are set out in judgment of Ennis J. as follows: -

This is a partition action. According to the plaint, the second defendant bought the property in 1889 and sold it in 1902 to A. L. Abdul Hamid, who sold it in 1906 to the first defendant, who, in 1912, sold an undivided one-fourth share to the plaintiff. It is asserted that the Court decreed a sale of the property, allotting one-fourth to the plaintiff and three-fourths to the first defendant. The added parties, twenty-four in number, intervened before the sale, and the Court ordered a stay of the sale pending the hearing of this claim. On the day fixed for the hearing (July 26, 1916) the Court (presided over by another Judge) held that a decree for sale had been made, and that it had no power to vacate it; it accordingly refused to inquire into the claims of the added parties. There are two appeals from this order. The fifth and sixth added defendants appeal in No. 359, and have made the plaintiff only respondent to the appeal. The first, second, third, and fourth added defendants appeal in No. 360, and have made the plaintiff, the first and second defendants, and the remaining added defendants (or most of them) respondents to the appeal, but they have given security only for the plaintiff's costs an