1959     Present : Nagalingam and Windham JJ.

WILLIAM SINGHO, Appellant, and SILVA,
Respondent

S. C. 435-D. C. Matara, 18,049

Res judicata-Decree for sale under Partition Ordinance-Sale-Subsequent: amendment of decree-Prior agreement between purchaser at sale and third party for conveyance-Third party not bound by amendment.

A person whose interests accrued to him prior to an order of Court is not a privy in estate of his predecessor for the purposes of res judicata.

APPEAL from a judgment of the District Judge, Matara.

C. E. S. Perera, for 2nd defendant appellant.

E. B. Wikramanayake, K.C., with M. H. A. Azeez, for plaintiff respondent.

Cur. adv. vult.

May 9, 1949. NAGALINGAM J.-

This is an action rei vindicatio. The plaintiff-respondent by deed of conveyance P4 of 1942 conveyed to the 1st defendant certain undivided interests to which he was entitled in the land the subject-matter of this-action with a condition annexed thereto whereby the latter covenanted, with the former to reconvey the property on repayment of the consideration within a period of 5 years from the date of execution of the deed. Before the expiry of the period of 5 years another co-owner of the land instituted a partition action to which the 1st defendant was made a party. The plaintiff intervened in the action and was himself made a party defendant. The plaintiff though given a date to file answer did not file one and though represented by Proctor did not put in an appear­ance either in person or by Proctor at the trial. After trial a decree for sale was entered on June 4, 1945. In the decree, however, the 1st defendant was declared entitled to the proper share that he was entitled to under the deed P4 but no mention was made in it of the right the plaintiff had under the deed. At the sale held under the decree a third party was declared the purchaser. The 1st defendant objected to the sale and at the inquiry held into the objection terms of compromise were arrived at on December 19, 1945, under which the 1st defendant was declared the purchaser on his paying for the land a sum more than four times the price realised at the auction sale. The 1st defendant was allowed time to deposit the money and the 1st defendant entered into an agreement 2D1 of January 12, 1946, by which he agreed to sell to the 2nd defendant the land for a sum named therein and received part of the consideration which he deposited to the credit of the partition case in fulfilment of his undertaking to pay the price he agreed to buy the land for, obtaining at the same time credit for the balance purchase price.

The plaintiff who evinced no interest in the proceedings after his inter­vention made an application to Court six days after the money had been deposited, namely, January 18, 1946, to have the decree entered in the case amended by incorporating therein a reference to the condition

under which the 1st defendant purchased the property from him. To this application the 2nd defendant who had already acquired an interest in the land by virtue of the agreement 2D1 was not made a party. The application came up fo