Muttucumarasamy V. Sathasivam Et Al

1951 Present: Jayetileke C.J., Basnayake J. and Pulle J.

MUTTUCUMARASAMY, Appellant, and SATHASIVAM et al,
Respondents

S. C. 543-D. C. Point Pedro, 2,872
 

Partition action-Abatement order by Court ex mero motu-When Court may set aside such order-Alienation or hypothecation of co-owner's share after abatement of action-Validity thereof-Partition Ordinance (Cap. 56), s. 17-Civil Procedure Code (Cap. 86), ss. 402, 403, 405.

Held, (Basnayake J. dissenting), (i) that an action under the Partition Ordinance is liable to be abated under section 402 of the Civil Procedure Code.

(ii) that such order of abatement can be made by the Court ex mero motu.

(iii) that the imperative provision in section 405 of the Civil Procedure Code which contemplates not an ex parte but an inter partes proceeding before an order of abatement is set aside is to make an ex parte order a nullity.

(iv) that a partition action comes to an end when a reasonable time has elapsed since an order of abatement under section 402 of the Civil Procedure Code was made and no action has been taken to have the order of abatement set aside under section 403 read with s

Click Here to Read the rest of this document