finality of a Partition Decree
PARTITION LAW
Finality of a partition decree
1.
Odiris Appuhamy v. Caroline Nona – (1964) 66 NLR 241
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 been duly registered.
Per Basnayake, CJ,
“…The District Judge has no power to set aside
his own decree. All decrees passed by the Court are, subject to appeal,
final between the parties (sec. 207 Civil Procedure Code) and may not be varied
except in the circumstances set out in section 189 of the Code which empowers
the Court to correct any clerical or arithmetical mistakes in any judgment or
order or any error arising therein from any accidental slip or omission. The
Court may also make any amendment which is necessary to bring a decree into
conformity with the judgment. There is no inherent power in a Court of
subordinate jurisdiction to set aside its own decree even though it be wrong.
It would be proper to quote here the following observations of the Privy
Council in Piyaratana Unnanse v. Wahareke Sonuttara Unnanse [(1950)
51 NLR 313 at 318]-
"…The general rule is clear that once an Order is passed and entered or
otherwise perfected in accordance with the practice of the court, the court
which passed the Order is functus officio and cannot set aside or alter the
Order however wrong it may appear to be. That can only be done on appeal.
"
2. CA
Case No. 600/99(F); DC Avissawella Case No. 15164/P, Court of Appeal Minutes of
14.12.2017
Section 48(1) of the Partition Act states that,
subject to any appeal which may be preferred therefrom or subject to
subsections (4) and (5) therein, an interlocutory decree entered under section
26 shall be "final and conclusive" for all purposes against all
persons. In my view the phrase "final and conclusive" therein
signifies that once interlocutory decree has been entered it cannot be changed
by the District Court except in the situations coming within subsections (4)
and (5) therein. This "final and conclusive" effect is given to an
interlocutory decree notwithstanding any omission or defect of procedure or in
the proof of title adduced before the court.
That been the general principle, the question is
whether the learned Additional District Judge had inherent power to set aside
the earlier judgment and interlocutory dated 17th of August 1988. Section 839
of the Civil Procedure Code states that nothing in therein shall be deemed to
limit or otherwise affect the inherent power of the court to make such orders
as may be necessary for the ends of justice or to prevent abuse of the process
of the court. There are two reasons why inherent powers cannot apply in this
case. There is no inherent power in a Court of subordinate jurisdiction to set
aside its own decree even though it be wrong. Inherent powers of the District
Court cannot apply where there are specific statutory provisions.
Sub-sections (4) and (5) of Section 48 of the
Partition Act are such provisions. Any challenge before the District Court to
the interlocutory decree dated 17th of August 1988 should have been
within the ambit of these sub-sections. The learned Additional District Judge
of Avissawella did not act under either of the above sub-sections. In fact, he
overlooked the earlier order made by his predecessor on 11th October 1988 on
the application made by the 3rd and 9th defendants as well as the heirs of the
7th defendants to set aside the judgment dated 17th of August 1988. He would not
have fallen into error if he had considered it. [vide pp.7-8]
………
In any event, I am of the view that consent of the
parties cannot bestow jurisdiction upon the District Court to act outside the
specific procedures laid down in Section 48 of the Partition Act as the
interlocutory decree entered in terms of section 26 of the Partition Act is,
subject to the limitations specified in Section 48 therein, given final and
conclusive effect against the whole world. It is not open to a person to confer
jurisdiction by consent and no amount of acquiescence would confer jurisdiction
upon a tribunal or Court where such jurisdiction did not exist. There are other
reasons as well. It is an established principle that parties cannot, by consent
or otherwise, vary the judgments or orders of any other Court. It is the duty
of the Court to examine and investigate title in a partition action, because
the judgement is a judgement in rem. [vide p. 9]
3.
Bernard v. Fernando –
(1918) 16 NLR 438
The
partition decrees are conclusive by their own inherent virtue and do not depend
for their final validity upon everything which the parties may or may not
afterwards do. They are not like other decrees affecting land, merely
declaratory of the existing rights of the parties inter se: they create a new
title in the parties absolutely good against all other persons whomsoever.
Available at: https://www.lawnet.gov.lk/wp-content/uploads/2016/11/115-NLR-NLR-V-16-BERNARD-v.-FERNANDO-et-al.pdf
4. Gunatillake
v. Muriel Silva and Others (1974) 79 NLR 481,
at page 496, Justice Vythialingam in his dissenting judgment, observed,
9“..
Nor can a stranger to a partition action move the Supreme Court in revision to
set aside an interlocutory decree which has
already been entered, on the ground that his claim has not been investigated or
on the ground that the title of the parties to the action has not been
adequately investigated, because, if there has been an investigation of title
though it is inadequate the decree is final and conclusive. The difference is
that where there is an appeal “nothing in the partition action can be final or
conclusive.” Section 48(1) of the Partition Act makes this quite clear when it
sets out that "the interlocutory decree entered under section 26 and the
final decree of partition entered under section 36 shall, subject to the
decision on any appeal which may be preferred therefrom, be good and sufficient
evidence of title...” This is not so where there is an application in revision.
The interlocutory decree remains final and conclusive where there has been
no appeal, and the interlocutory decree cannot be set aside in such a case on
the ground that there has been an inadequate investigation of title.”
HOWEVER,
Finality of a partition decree can be
assailed in exceptional circumstances in order to avert a miscarriage of
justice. Vide: Somawathie v. Madawala – (1983) 2 Sri LR 15
Utilizing
the proviso to section 48(3), a long line of authorities of the Supreme Court
and the Court of Appeal, acting in revision and restitutio in integrum, has
tended to erode the finality of a partition decree, in order to avert a failure
of justice, for good and sound reasons. Vide: Velun Singho and another v
Suppiah and others - [2007] 1 Sri L.R 370
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