In The Matter Of An Application For Restitutio In Integrum

Present: Drieberg and Garvin JJ.

In the Matter of an Application for restitntio in integrum.

342-D. C. Kurunegala, 10,003.

    Arbitration-Reference on application of some parties-Award-Validity -Civil Procedure Code, ss. 693.

A reference to arbitration in the course of an action can only be made on the application of all the parties to it.

An award on a reference by some of the parties only is not binding even on those who have consented to the reference.

APPLICATION for restitutio in integrum by the second, third, and fourth defendants in the action. The facts are fully stated in the judgment.

H. V. Perera, for petitioners.

N. E. Weerasooriya, for respondents.

November 13, 1928. DRIEBERG J.-

This application is by the second, third, and fourth defendants in the action; the fourth respondent is the first defendant and the other respondents are the plaintiffs.

The action was for declaration of title. The survey made for the case shows the disputed area to be lots D, E, and F. Lot G belongs to the defendants, and lots A, B, and C, for which decree was entered for plaintiffs, was apparently not claimed by the defendants. The petitioners and the fourth respondent are the children of Punchiappuhamy Vederale and claim the land by inheritance from him.

The plaint does not state that any of the defendants were minors, though the plaintiffs must have been aware of the fact, for the first plaintiff made a formal application in the testamentary proceedings to have this land excluded from it. This, however, must have been brought to the notice of the Court, for after issue of summons the first defendant appeared and the Court ordered that the minors should be produced. The petition states that the first defendant was appointed guardian ad litem of the second, third ,and fourth defendants ; the typed certified copy of the proceedings annexed to the petition reads : "Of consent first defendant appointed guardian ad litem of the second, third, and fourth defendants." The statement on this point in the petition was not questioned at the argument in appeal. Stamps were supplied on July 3 and 18 for

the guardian ad litem appointment, but I cannot find this in the record. I believe, however, that the appointment was over the third and fourth defendants only, and this appears to be so from the journal entry.

On July 18, 1924, Mr. R. O. Felsinger, for the defendants, filed a proxy dated July 15 ; this purports to be by the first, second, third,  and fourth defendants, the first acting as guardian ad litem of the in integrum third and fourth defendants, not of the second, whose name appears as a signatory to the proxy. The second, third, and fourth defendants deny all knowledge of this proxy.

I have sent for and examined the record of the case in which the estate of Punchiappuhamy Vederale, the father of the defendants, was administered (D. C. Testy. Kurunegala, No. 1,998). The second defendant, on August 31, 1921, was appointed guardian ad litem of the third and fourth defendants and of another son of the intestate, Podihami, who is not a party to this action. The petitioners stats that when the plaint in this action was filed the second defendant was of full age, and that when the appointment of guardian ad litem was made the third defendant had attained majority; there is no counter affidavit challenging these allegations. There was no application supported by affidavit for this appointment, and it cannot be ascertained from this record or that of the testamentary case what the ages of the second, third, and fourth defendants are. The case was partly heard on December 15, 1926, and then it was noted that of consent all matters be referred to the arbitration of Mr. Walter de Silva, and a consent to reference was submitted on the same day signed by the plaintiffs and their Proctor, by Mr. R. O. Felsinger, Proctor for the