Back
MUTTUCUMARASAMY v. SATHASIVAM et al
NLR53V97
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 section 405. A co-owner's alienation or hypothecation,
thereafter, of his undivided share of the subject-matter of the partition action
is, therefore, not obnoxious to section 17 of the Partition Ordinance.
APPEAL from a judgment of the District Court, Point Pedro. This case was
referred to a Bench of three Judges, owing to a difference of opinion between
the two Judges before whom it had been previously listed.
C. V. Ranawake, with A. Nagendra, for the plaintiff appellant.-The question for
the decision of this Court is the preliminary question whether the deed 4D5
executed on February 14, 1934, is inoperative because it was executed during
partition action No. 13199 of the Court of Requests of Point Pedro. That action
was instituted on September 13, 1909, and interlocutory decree was entered on
September 22, 1910. No steps were taken thereafter and on September 6, 1911, the
Judge, acting under section 402 of the Civil Procedure Code, made an order of
abatement ex mero motu, without notice to parties. This order was set aside on
November 25, 1912, on the application of the plaintiffs' proctor, without notice
to parties.
It is conceded that the order of abatement was good-Lorenzu Appuhamy v. paaris
1[(1908) 3 A. C. R. 171]; Suppramaniam v. Symons 2[(1915) 18 N. L. R. 229.]. It is also submitted that the order vacating the
order of abatement was also good and that section 17 of the Partition Ordinance
was therefore operative. The vacating order, if bad, has been acquiesced in by
the parties. It can only be set aside in the proper way. If the Court had
jurisdiction a bad order is good till it is set aside.
[JAYETILEKE C.J.: Did the Court have jurisdiction to vacate the abatement order
without noticing all parties under section 405 of the Civil Procedure Code ?]
The parties were already on the record. The procedure of giving notice is only
incidental. The failure to give notice is therefore only an
irregularity-Muttumenika v. Muttumenika1[(1915) 18N.L.R.510. ].
In certain circumstances a partition action can be regarded as abandoned-Lawaris
v. Kirihamy2[(1914) 3 Bal. N. C. 38].
[JAYETILEKE C.J. referred to Eastern Garage and Colombo Taxi Cab Co. v. Silva
3[ (1924) 2 Times 166.].]
It was not considered in that case that the Court can make an order of abatement
ex mero motu.
In Allahahoon v. Wickremesinghe4[(1908) 4 A. C. R. 8] it was held that an order of abatement only
causes a case to be removed from the list of pending cases, and in Kamela v.
Andris5[(1939)41N. L. R 71] it was held that such an order operates as res judicata. See also
Appuhamy v. Babun Appu 6[(1923) 25 N. L. R. 370.], where an alienation of a divided block after a scheme
of partition was submitted but before final decree was held to be void as being
