Case Note & Summary
The case involves an appeal against an order of the Comarca Judge of Salcete and Quepem at Margao dismissing an application and closing Inventory Proceedings No. 20174/66/Q. The appellant, an interested party, had filed an application seeking notice to the cabeça de casal. The Inventory Court held that there was desertion of instance under Article 296 of the Portuguese Civil Procedure Code and declared the instance extinct. The background includes a final partition dated 19/03/1976, which was set aside by the High Court in earlier appeals (First Appeal No. 104 of 1979 and Appeal From Order No. 26 of 1984) by judgment dated 19/01/1985. The High Court had set aside the final partition and the order declaring a gift deed void, and remanded the matter to the Inventory Court to proceed further. The appellant argued that no duty was cast on him to take steps after remand, and the Inventory Court erred in finding desertion. The High Court agreed, noting that the Inventory Court had not recorded any finding of duty or inertia on the appellant's part. The appeal was allowed, the impugned order set aside, and the Inventory Court directed to proceed with the inventory in accordance with law.
Headnote
A) Civil Procedure - Desertion of Instance - Article 296 of Portuguese Civil Procedure Code - The Inventory Court dismissed the proceedings on ground of desertion, but the High Court held that desertion requires a duty to proceed and inertia; here, the appellant had no duty to take steps after remand, and the court itself was obliged to process further. (Paras 2-6) B) Succession and Inheritance - Inventory Proceedings - Remand Order - The High Court set aside the final partition and remanded the matter; the Inventory Court was directed to proceed further, but no direction was given to the appellant to take steps. The court's finding of desertion was unjustified. (Paras 4-6)
Issue of Consideration
Whether the Inventory Court was justified in declaring desertion of instance and dismissing the inventory proceedings under Article 296 of the Portuguese Civil Procedure Code when the appellant had no duty to take steps after remand.
Final Decision
Appeal allowed. Impugned order dated 20/03/1999 set aside. Inventory Court directed to proceed with the inventory in accordance with law.
Law Points
- Desertion of instance under Article 296 of Portuguese Civil Procedure Code requires duty to proceed and inertia
- Inventory Court must process remand order
- No duty on appellant to take steps after remand
