Present: Bertram C.J. nod Schneider J.
DXONIS APPU v. ABUS et el.426—D. C. Gatfy 18,318.
Power of District Judge to vary judgment after delivering same in openCourt—Civil Procedure Code, s. 189.
It is not competent to a Judge to reconsider or very his judgmentafter delivering it in open Court, except as provided by section 189of the Civil Procedure Code.
FJ1HE facts appear from the judgment.
J. S. Jayawardme, for the appellants,
F. Perera, for the respondent.
March 30,1922. Bertram C.J.—
In this case the learned Judge, either having delivered a consideredjudgment and pronounced it in open Court, saw reason before thedecree was drawn up to come to a different conclusion. He there-upon, after the appealable time had elapsed, delivered a freshjudgment, in a sense contrary to the original judgment and pur-ported to cancel the original judgment* The justification forhis doing so was that the decree had not yet been drawn up, andhe appears to have held that until that takes place it is competentfor a Judge to vary any judgment he may have pronounced evento the extent of entirely reversing it. I do not think that this is atenable proposition. The delivery of the judgment is a formalstep prescribed by the Code, and a judgment is itself a most formaldocument. Although it is defined in the definition section of theCode, section 5, as being the statement given by the Judge of thegrounds for the decree or order, it must be borne in mind that thatdefinition only applies, unless there is something in the subjector context repugnant thereto ; and if the whole of the provisionsin chapter XX. are read, it will be observed that by section 187the judgment must contain a decision, and by section 188 theJudge must make an order. There is no such provision in theCode authorizing an amendment of the decision and order asexists in the case of a decree under section 189. The action,therefore, taken by the learned Judge i8 entirely unjustified by anyprovision of the Code. Our Code is intended to be formal andcomplete, and unless it can be shown that the action was madein pursuance of some inherent power of the Court not referred toin the Code, it appears to me that the proceeding must be considered
( 347 )
erroneous. I do not know on what authority the learned Judge iggg.
impliedly propounds the proposition that, until a judgment is _■
embodied in a decree, it may be varied. It is possible that hemay have been thinking ol certain English authorities which have ,been referred to in our own reports, where it is said that after a*' D^*^^pujudgment has been passed and entered no amendment can be madein it except in the case of a clerical error, or in a case where a judg-
in pronouncing it. That seems to imply that before a judgmentis passed and entered, according to the phraseology used in Englishprocedure, it may be varied. I do not think, howeyer, that thereis any general Wnglnfli principle which goes to that length. Onthe contrary, it appears from the case of Charles Bright Co.,Ltd., o. Sellar,1 that it is not competent for a Judge of first instanceto correct an error in law apparent on the face of the order he hasmade, even before that order has been formally enrolled. Thereis ah interesting account of the history of the subject given in thejudgment of Cozens-Hardy L.J. in that case. In any case, eventhough there were such a general principle in 13nglt«h procedure, itwould not necessarily apply to our Courts where we are governed bywhat is intended to be a complete and precise Oode. The decisionwe are now pronouncing is in accordance with a previous decision ofthis Court, namely, the case of Ponnachchy 9. Eliaiamby? I wouldalso draw attention to the decision of this Court in Sinno Appu 9.Andris,8 where Hutchinson C. J. points out that, whereas there ispower given to correct a decree with regard to a clerical error,there is no similar power in regard to a judgment. It appears tome, therefore, that the revised judgment of the learned Judgecannot stand, and that the appeal in this case should be allowed;and as the respondent supported that, judgment the appeal shouldbe allowed with costs, but the costs in the Court below shouldabide the event.
At the same time as we are free to deal with the matter in theexercise of our powers in revision, I think that, in view of the circum-stances of the case, the judgment appealed against, as well as theprevious judgment, should both be set aside, and the matterremitted to the District Court for re-trial before another Judge.
Sohnbtdkb J.—I agree.
111904) 1 K. B. D. 6.-* Leader, L. B, 63.
* (1910) U N. L. B, 297.
DIONIS APPU v. ARLIS et al