The requirement to give the undivided share of the soil and rights each party is entitled to in the interlocutory decree- failure to specify the specific undivided share- consequences

-

The requirement to give the undivided share of the soil and rights each party is entitled to in the interlocutory decree- failure to specify the specific undivided share- consequences


C.          A. Appeal No. 1104/96(F)
D.         C. Kalutara Case No. 4259/P


 
16. Thotage Ariyasena
78. Pritman Dias Gunawardana
Vs
Maddumadevage Alen Bombuwala.


Asoka Fernando with Ms. A.R.R. Siriwardane for the DefendantAppellants 1st, 4th and 16th and 78th Defendant-Appellants.
Champaka Ladduwahetty for the Respondent.
Argued on: 24.07.2014. Decided on: 06.08.2014.


A.W.A. Salam., J. (P/CA)

This is a partition action. The judgment and the interlocutory decree impugned in this appeal are dated 21.06.1996. The learned District Judge having decided that the parties should be allotted undivided shares failed to give exactly the shares each party will entitled to in the judgment. The learned District Judge in that judgment states without specifying the undivided rights of the parties that the plaintiff should tender a schedule of shares and if the schedule of shares so tendered is consistent with the judgment it should be accepted as part and parcel of his judgment.

This judgment of the learned District Judge is totally violative of the provisions of the partition law. The judgment in the strict sense of the law cannot be regarded as a proper judgment in view of the direction given by the learned District Judge that the schedule of shares directed to be tendered by the plaintiff should be accepted as part and parcel of his judgment. This being plainly obnoxious to the provisions of the partition law I have no alternative but to hold that the learned District Judge has failed to discharge the elementary duty of discharging the most important aspect in the case. It is settled law that in a partition action the trial judge must decide the nature and extent of the interest each party is entitled to upon an examination of the title in terms of Section 25 of the Partition Law.

In C. A.. 116 and 1167/96(F) it was held that the failure of the District Judge to indicate the undivided interest of each party in the interlocutory decree is a fatal irregularity which gives rights to the judgment and interlocutory decree having to be set aside. It is appropriate at this stage to refer to the decision in Memanis Vs Eide 59 Ceylon Law at page 46. H/L Basnayake, C.J. with H.N.G. Fernando concurring laid down the proposition that it is imperative to include the undivided interest of each party in the interlocutory decree. The relevant passage of the said judgment is quoted below.

“In his judgement the learned that district judge says; “plaintiff’s proctor will file a schedule of shares which when filed will form part and parcel of this judgement” and there is a schedule of shares filed which he has adopted in entering the interlocutory decree. Section 25 of the Partition Act, provides that the judge shall examine the title of each party and shall hear and receive evidence in support thereof and shall try and determine all questions of law and fact arising in that action in regard to the right, share or interest of each party to, of, or in the land to which that action relates, and shall consider and decide which of the orders mentioned in section 26 should be made. In the instant case there has been no determination of the shares of the parties as required by the Partition Act. It is the shares so determined by the judge that the court is required to enter in the interlocutory decree. The course taken by the learned district judge is contrary to the provisions of section 26 of the partition act. ”

Based on the above two decision I am of the view that the impugned judgement cannot be allowed to stand as it is totally inconsistent with the provisions of the partition law.

In the circumstances the impugned judgment is set aside and the case send back for re-trial.

PRESIDENT OF THE COURT OF APPEAL


Comments

Post a Comment

Popular posts from this blog

CIVIL PROCEDURE AMENDMENT NO 43 OF 2024

-
Image
  defult of appearance - An overview  by GalleLaw Blogger  on the amendment 43 of 2024 to section 86, 87 and 88 to the CPC  VACATION OF exparte ORDERS, JUDGMENTS AND DECREES. The Civil Procedure Code (Ordinance No. 2 of 1889) governed case procedures in the Original and Appellate Courts for nearly 85 years, from 1889 until 1974, when it was replaced by the Administration of Justice Laws No. 44 of 1973 and No. 25 of 1974. During a brief period from 1974 to 1977, the Civil Procedure Code was superseded by the AJL. However, in 1977, the Civil Procedure Code of 1889 was reinstated by the Civil Courts Procedure (Special Provisions) Law No. 19 of 1977. Section 86 of the Civil Procedure Ordinance outlined the procedures for setting aside a decree *nisi*  (a provisional judgment)  under the CPC ordinance. Under Section 86(2), if a defendant provides reasonable grounds for the default, the court was empowered to set aside the decree and resume the case from the s...
Read more

What law governs the granting or remanding of an accused or suspect person? The law that governs the granting or remanding of an accused or suspect person is the Bail Act No. 30 of 1997. This Act provides for the release on bail of persons suspected or accused of being concerned in committing or having committed an offense. It also provides for the granting of anticipatory bail and other related matters. The Bail Act establishes that the grant of bail should be the guiding principle, subject to exceptions as provided for in the Act, and refusal to grant bail should be the exception. It prevails over the provisions of the Code of Criminal Procedure Act and other written laws, except for the Release of Remand Prisoners Act, No. 8 of 1991.

-
Image
  SUMMARY BY THE BLOGGER    Background:  The accused has been indicted for the offense of grave sexual abuse of a minor, an offense is punishable under section 365B (2) (b) of the Penal Code. The accused was initially released on bail by the Court. The trial against the accused commenced on 21-07-2022. On 5th October 2023, the Court ordered the accused to be remanded pending further trial. The Lawyer for the accused filed a motion seeking bail, but it was refused.   The petitioner, acting on behalf of the accused, filed an application for revision in the Court of Appeal invoking Article 138 of The Constitution. After considering the facts, circumstances, and relevant law, the Court ordered the immediate release of the accused from remand custody on the earlier bail conditions.   1.   The Court relied on section 263 of the Code of Criminal Procedure Act to remand the accused, but failed to consider the relevant provisions of the Bail Act No. 30 of ...
Read more