1959 Basnayake, C.J., and Pulle, J.



SEELAWATHIE PERERA, Appellant, and K. K. DON PETER et al., Respondents

S. C. 661-D. C. Colombo, 473/Z

    Partition Ordinance (Cap. 56)-Section. 17-Transfer of a divided portion after final decree of partition and pending appeal- Validity.
Action under s. 247 of Civil Procedure Code-Plea of forgery-Discretion of Court to refer that issue to a separate action.

Where a party who has been allotted a divided portion in the final decree of a partition action transfers that portion during the pendency of an appeal against the final decree, there is nothing section 17 of the Partition Ordinance to render the transfer void.

Where, in an action instituted by a judgment-creditor under section 247 of the Civil Procedure Code, the judgment debtor pleads that the deed alleged to have been executed by him in favour of the claimant was a forgery; the Court may refer the issue of forgery to a separate action.

APPEAL from a judgment of the District Court, Colombo.

H. W. Jayewardene, Q.C., with E. S. Dassanayake and C. P. Fernando, for Plaintiffs-Appellants.

Sir Lalita Rajapakse, Q.C., with C. R. Gooneratne, for 1st and 2nd Defendants- Respondents.

Cur. adv. vult.

June 12, 1959. PULLE, J. -

The appellant is the plaintiff in an action filed by her under section 247 -of the Civil Procedure Code on 2nd July, 1954, to have it declared that a. deed No. 175 dated 28th August, 1953, was null and void as being in fraud of creditors and that the premises conveyed thereby to the 1st and 2nd defendants by one Seekuge Sirisena alias James Perera was liable to be sold in execution of a decree in her favour against James Perera in D.C. Colombo Case No. 19,369fM. On a. point taken by the 1st and 2nd defendants in their answer that James Perera was a necessary party he was made the 3rd defendant in the present action. By his answer the 3rd defendant pleaded, inter alia, that deed No. 175 was a forgery and prayed that it be declared null and void.

The premises which the plaintiff sought to seize and sell is depicted as lot 1 on plan No. 4,886A dated 7th March, 195.1, made in partition action No. 5,320. By the final decree dated 10th October, 1951, the 3rd defendant was declared entitled to Lot 1 in that plan. An appeal "by him in the partition action was dismissed on 16th March, 1954.

At the trial learned counsel for the plaintiff raised the following issues: -

1. Was deed No. 175 executed in fraud of creditors?

2. Was the deed executed in fraud during the pendency of partition action No. 5,320, and if so, whether it was void?

The issue suggested on behalf of the 3rd defendant reads, "Was the said deed No. 175 executed by the 3rd defendant or is the said deed a forgery? ".

The allegation of forgery was made only by the 3rd,:defendant and, in effect, he counterclaimed against the 2nd and 3rd defendants a declaration that the deed was null and void. The learned trial Judge was of the opinion that it would be inconvenient to try in an action under section 247 of the Civil Procedure Code an issue of forgery, arising only as between the judgment debtor and the successful claimants, and referred the parties to a separate action on that issue. One of the points stressed in this appeal on behalf of the plaintiff is that the learned Judge should have himself tried the issue of forgery instead of referring the 3rd defendant to a separate suit.

The action, D.C. Colombo No. 19,369/M, in which the execution proceedings were taken, was filed on 3rd May 1948, and decree was entered on 29th September 1954. Apparently prior to this decree the 3rd defendant had been ordered to pay Rs. 566/88 to the plaintiff and for the purpose of recovering this amount she caused the premises in suit to be seized on 6th February 1954. A claim by the 1st and 2nd defendants that they were in possession of the premises as owners under deed No. 175 of 28th August 195