Odiris Appuhamy V. Caroline Nona

1964 Present: Basnayake, C.J., Abeyesundere, J., and Sri Skanda Rajah, J.

ODIRIS APPUHAMY, Appellant, and CAROLINE NONA,
Respondent

S. C, 235162-D. C. Kalutara, 323/P

Partition action-Absence of due registration of lis pendens-Interlocutory decree- Incapacity of a new party to be added thereafter-Partition Act, M. 3 (1), 6 (1) (a), 7, 8 (a), 11, 12 (1),13 (1), 26,48 (1) (2) (3), 70-Civil Procedure Code, ss. 84, 86, 87, 189, 207, 707, 839.

     Held (SRI SKANDA RAJAH, J., dissenting): Once interlocutory decree has been. passed in a partition action instituted under the Partition Act, a new party is not entitled, by invoking the provisions of section 48 (3) of the Act, to intervene and have the interlocutory decree set aside by the Court of first instance on the ground that the lis pendens has not beau duly registered.

APPEAL from a judgment of the District Court, Kalutara.

             D. R. P. Goonetilleke, with S. S. Sahabandu, for Plaintiff-Appellant.

             M, Tiruchelvam, Q.C., with K. Thevarajah and Nihal Jayawickreme, for intervenient 16th Defendant-Respondent.

Cur. adv. vult.

July 8,1964. BASNAYAKE, C.J.-

            This appeal first came up for hearing before my brethren Abeyesundere and Sri Skanda Rajah and because they were unable to agree on the decree that should be passed it now comes up for hearing before a Bench of three Judges. The questions that arise for decision are--

          (a) whether, after the interlocutory decree has been passed in a partition action instituted under the Partition Act, & party can be added, and

          (b) whether the Court that passed the interlocutory decree has power to set it aside.

          Briefly the material facts are as follows:-The present action for partition was instituted on 28th May 1958. Thirteen persons were named as defendants in the plaint. Another person who claimed a part of the land as his exclusive property was added in the course of the proceedings and after investigating the title of the parties the learned District Judge passed an interlocutory decree on 23rd March 1960 and the steps for the partition of the land were under way when on 15th March 1961

the 16th defendant (hereinafter referred to as the ' respondent') Lewuwanduwe Badalge Caroline Nona filed petition and affidavit and asked-

        (a) that the Commission issued for the final partition of the land be recalled,

        (b) that the interlocutory decree be set aside, and

        (c) that she be given an opportunity of filing answer.

 The petition was inquired into and on 17th April 1962 the learned District Judge made order setting aside the interlocutory decree and granting the petitioner an opportunity of proving her title to the land and recalling the Commission issued for partition of the land. The present appeal is from that order. The main points urged before us on behalf of the appellant are-

            (a) that the Partition Act does not confer power to add a party after the interlocutory decree has been passed and that the learned District Judge did what he had no power to do, and

           (b) that the Judge had no power to set aside the interlocutory decree which he had entered or to reverse any of the orders made by him subsequently.

    The respondent sought to support the order of the District Judge mainly on the ground that lis pendens had not been duly registered and that therefore the interlocutory decree was null and void and that the District Judge had power to set it aside.
Express provision for the addition of parties is made in section 70 of the Partition Act which reads-

            " (1) The court may at any time before interlocutory decree is entered in a partition action add as a party to the action on such terms as to payment or prepayment of costs as the court may order-

                    (a) any person who, in the opinion of the court, should be

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