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Present: Bertram C.J. and l)e Sampayo J.ATPUHAMY v. WEERATUXGA ct, alD. C.—Negomho, 13,952.
Supreme Court—Application for revision by a person not a party to thrcase.
It is open to the Supreme Court lo exercise its powers of revisionon the application of an aggrieved person not a party to the record.
fJ^HE facts appear from the judgment.
W' Jayawardem. iu support.
November 14, 1921. Bertram C;J.—.
This is an application made to the Court in the exercise of itspowers in revision by a person not a party to a’ partition, case torevise the decree for sale made in that case* on the ground that thedecree is at variance with the judgment, or with the intention thatthe learned Judge had in delivering his judgment. The applicationis made in pursuance of the principle embodied in section 189 ofthe Civil Procedure Code, which enacts that the Court in such caseshas power to amend the decree so m to bring it into conformitywith the judgment. The applicant not being a party to the caseconceives that it- was not open to him to move the Judge in theCourt below, but has applied to us to make the necessary amendment,in view of the special powers which we possess under the Code.
We have to consider, in the first place, whether it is open to usto exercise these powers on the application of an aggrieved personnot a party to the record. There seems to be no doubt that wemay exercise these powers of our own motion. If that is so, I thinkwe may justly exercise them when an aggrieved person brings toour notice the fact that, unless the decree is amended, he will suffer
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injustice. We have, therefore, to consider the facts of the casewhich are these :—
The land sought to bfe partitioned was described in the plaint asconsisting of a divided portion of about ten parrahs from and outof the field called Kandanekumbura, which is described withreference to its boundaries. The deed on which the partitionaction is based is a deed in favour of Louisa Samarasekera, andpurports to convey to her all that divided portion of about tenparrahs out of the field Kandanekumbura. It gives the boundariesof the whole land, and states that within the said boundaries theland comprises thirteen parrahs of paddy sowing extent. The land,sought to be partitioned, therefore, is a divided portion of the heldcalled Kandanekumbura. But it will be observed that the locationof this divided portion in the field is not described either in the deedor in the plaint.
On February 18, 1920, the Court issued a commission to thesurveyor to make a survey of the lands specified in the schedule, andthe fourth of these lands was described as being all that dividedportion of about ten parrahs of paddy sowing extent from and outof the held called Kandanekumbura. The boundaries of the wholeland were stated; no reference was made to the total extent norto the locality of the divided portion referred to. The surveyorattached to his report a plan showing this held and other adjacenthelds which were also included in the partition action. He haddivided Kandanekumbura into two lots, A 1 and A 2, the latter ofwhich is coloured as a field, the former of which—understood tobe high land—is not coloured, and he mentioned that lot A 1 isdivided off and possessed by one Marthelis Appu of Negombo.
On February 22,1921, a motion was made for the sale of the landsought to be partitioned, and the case thus came before the learnedJudge. The trial took place. No reference appears throughoutthe trial to have been made to the question of these two dividedlots, or as to whether the land sought to be partitioned includedlot A 1. Marthelis Appu, whom the surveyor had reported to bein occupation of A 1, was not summoned as a party. Finally, onJune 15, the learned Judge made the following order : “ Enterdecree for sale. Shares as in plaint. Costs pro raid. ”
In pursuance of that order, a decree was drawn up, and thedecree expressly included both lots A1 and A 2. A sale took placein pursuance of the decree, but up to the present no certificateshave been issued under section 8 of the Partition Ordinance. Thequestion for us is, has a mistake been made in drawing up thedecree ? The applicant in this case, who appears to claim underMarthelis, asserts that the learned Judge could only have intendedto include A 2 in the land sought to be partitioned. There seemscertainly some ground for this suggestion. The learned Judge hasnot made any precise indication of his intention. If he had intended
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to include A 1, presumably he would have first noticed MarthelisAppu or any person claiming through him. It is. however, for thelearned Judge himself, on looking at the record and the variouspapers, to say what his intention was. I think that the justice ofthe case will be best served if the matter is remitted to the learnedJudge to inquire into the suggestion that the decree is at variancewith the intention of his judgment, and, if he so finds, to make thenecessary amendment under section 189. As I have said, hocertificates of sale have been issued, and consequently any amend-ment will involve less difficulty than might otherwise be occasioned.I would point out, however, that- in Natchia v. Natchia1 this Courtallowed an amendment on a partition decree under section 189,even after subsequent conveyances of the shares allotted had beenissued.
In my opinion the case should go back to the learned Judge. Ithink the costs of this application should abide the result of thelearned Judge’s inquiry,
De Samfayo J.—I agree.
APPUHAMY v. WEERATUINGA et al