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Present : Wood Benton C.J. and Shaw and De Sampayo JJ.NANNITAMBY v. VAYTILINGAM et dL.
34—D. G. Jaffna, 19,750.
Amendment of decree after twenty-free years—Application by heirs
oforiginalparty—CivilProcedureCode,ss.S, 189,and 408—
NBued V andA for a declaration oftitleto theoffice ofmanager
of a Hindutemple, basinghisclaimonhereditarysuccession.
Thedefendants (Vand A) demurred totheplaintiff’s libel,on the
ground thattheright tothe managership wasnotheritable,and
could not betransmitted insuccession;andthey further alleged
thatthey hada right,bothbyinheritanceand byprescription,
first defendant to the incumbency and second defendant tothemanagership.On March 19, 1891,theactionwas settled by
a consent decree, on the basis of a memorandum submitted bybothsides. Thismemorandum affirmedtherightof theplaintiff
and his heirs and the second defendant and his heirs to the jointmanagership,andof thefirst defendantandhisheirs tobe
It contained also clauses dealing with- the position of the partiesin regard to aceremonyconnected withthe flagstafffestival,and
also with the custody and possession of the temple property.TheDistrict Judgepointedoutthathecould notincorporate the
latter' portions ofthe memorandum intothedecree,as thematters
to whichthey related didnotariseuponthe pleadings. He then
proceeded as follows:“ The Court isready to enter a decree
adjudging the plaintiff and second defendant to be joint managersof the temple, and first defendant to be officiating priest thereof.Counsel state that they are quite satisfied with this; they onlyask thatthe memorandumbefiled.Leta decree be enteredin
terms of the memorandum, omitting the portions I have markedA and B."Thepassagesmarked A andB arethosedealingwith
the flagstaff festival and the question of the custody of the temple.Thedecree enteredup didnotrefertothe heirsof the parties.
In November, 1916, after all the original parties were dead, thefirstand second respondents(sons ofthe first defendant) presented
a petitionto the Court fortheamendmentof the consent decreeof
1891 by insertion of the word “ heirs,” and noticed the appellants(sons ofsecond defendant)and thethirdrespondent (son ofthe
The District Judge amended the decree as prayed for.
Held (per WoodBentonC.J.andDe SampayoJ., dissentiente
(a) That the omission of the words “ and his heirs ” was due toan error,' and that the Court had power to alter the decree.
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1917.(6) The record by the District Judge of what took place before
——him in 1891 was a judgment, and the decree might be amended
NanntUwibyunder section 189 of the Civil Procedure Code.
VaytUmgam(c) The office of a priest may be heritable, and in such a case
any question as to who are or are not the heirs of a particularpriest should be determined by Hindu law and custom.
HE facts are set out in the head note. This case was referredto a Bench of three Judges, by Wood Renton C.J. and
Bawat K.G. (with him Balasingham and S. R. Rajaratnam), forappellants.,
Hayley, for respondents.
Gut. adv. vult.
June 14, 1917. Wood Renton C.J.—
In 1889 Murugar Nannitamby sued Valayuthar Vaytilingam andVayramuttu Arumugam, in the District Court of Jaffna, for adeclaration of his title to the office of manager of a Hindu templeat Sulipuram. He based his claim to the managership on hereditarysuccession from the founder of the temple, Ramoo Sathukayaler.The defendants demurred to the plaintiff’s libel, on the ground thatthe right to the managership was not heritable, and could not betransmitted in succession; and they further alleged that they hada right, both by inheritance and by prescription, the first defendantto the incumbency, and the second defendant to the managership,of the temple in question. As the point was the subject ofsome discussion at the argument before us, it may be desirable toobserve that paragraph 10 of the defendants’ answer makes it quiteclear that the first defendant, as well as the second, relied onhereditary title. It is sufficient in this connection to quote thefollowing passage from that paragraph: “ The first defendant saysthat he, and before him his said father, having officiated as priest ofthe said temple and enjoyed the perquisites thereof uninterruptedlyand without any disturbance by a title adverse to and independentof that of the plaintiff, and all others whomsoever, for ten yearsand upwards previous to this action, he has acquired a prescriptiveright to the said office.”
On March 19, 1891, the action was settled by a consent decreeentered up by the then District Judge of Jaffna, on the basis of amemorandum submitted to him by both sides. This memorandumaffirmed the right of the plaintiff and his heirs and the seconddefendant and his heirs to the joint managership, and of the firstdefendant and his heirs to be officiating priests, of the temple.It contained also clauses dealing with , the position of the parties inregard to a ceremony connected with the flagstaff festival, and also
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with the custody and possession of the temple property. Thelearned District Judge pointed out that he could not incorporatethe latter portions of the memorandum into the decree, as the mattersto which they related did not arise upon the pleadings. He thenproceeded as follows: “ The Court is ready to enter a decreeadjudging the plaintiff and second defendant to be joint membersof the temple, and first defendant to be officiating priest, thereof.Counsel state that they are quite satisfied with this; they only askthat the memorandum be filed. Let a decree. be entered in termsof the memorandum, omitting the portions I have marked. A and
As agreed on, each party will pay their- own costs.” Thepassages marked A and B are those dealing with the flagstafffestival and the question of the custody of the property of thetemple. The reference in the memorandum to the heirs of theparties are not included in the excepted passages. The appellantsare the sons of the second defendant. The first and secondrespondents are sons of the first defendant. The third respondentis a son of the plaintiff in the action. The original parties to theproceedings are all dead. In November, 1916, the first and secondrespondents presented a petition to the District Court, Jaffna, forthe. amendment of the consent decree of 1891 by the insertion ofthe word “ heirs ” in those clauses of the memorandum of consentwhich deal with the devolution of the managership and theincumbency of the temple. The appellants opposed this application.The learned District Judge, after hearing both sides, has allowed it.Hence this appeal.
The appellants’ counsel contended that it was clear from therecord of the proceedings in 1891 that the District Judge haddeliberately omitted from the decree the reference to ” heirs ” inthe memorandum of consent ; that, even if he had not done so,section 408 of the Civil Procedure Code precluded the presentDistrict Judge from inserting that word now, inasmuch as noquestion of hereditary succession was- really involved in the action ;that the application could not be brought under section 189,inasmuch as no “ judgment ” had been pronounced in the case;that the appellants, who had in 1909 obtained from the seconddefendant a deed appointing them to the managership of the temple,were in the position of third parties whose rights should not beprejudiced; that a devolution of an incumbency by inheritancemight involve the absurdity of a woman officiating as a Hindupriest; and, in the last place, that no amendment of the decreecould in any event be made until there was affirmative evidencethat reasonable notice of the application had been given to ’all theheirs of the original parties.
I do not think that any of these contentions is entitled tt^-preVail.It appears to me that the record shows that it was the intention ofthe District Judge that every part of the memorandum of consent,
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except the passages A and B, should be incorporated into thedecree of the Court. The omission of any reference to “ heirs ”in his running narrative of the proceedings before him, whichconstitutes the real “ judgment " in the case, must be consideredin the light of the context, and the retention of the word “ priests ”in the consent decree itself certainly does not indicate any intentionon the part of the Court to depart from the provisions of the memo-randum as to the devolution of the incumbency. The summarythat I have given above of the pleadings shows that the firstdefendant as well as the second relied upon hereditary title. More-over, I think that it would be very undesirable to construe thelanguage of section 408 of the Civil Procedure Code in a sense thatwould preclude the parties to litigations of this character fromsettling by consent, not merely the immediate issues in the case,but matters germane to those issues and directly involved in thepleadings. The record by the District Judge of what took placebefore him in 1891 is, in my opinion, a “judgment" within themeaning of section 5 of the Civil Procedure Code. It states thegrounds both of the exclusion of the passages A and B from theconsent decree, and, by necessary implication, of the readiness ofthe Court to allow the decree, quoad '■ultra, to be drawn up in termsof the memorandum of consent. The appellants are not really inthe position of third parties, in spite of the deed from the seconddefendant on which they rely. They come into the case as heirsof that defendant. There can be no doubt that it was the originalintention of all the parties to the action that the incumbency shouldbe hereditary. I do not think that they would have come to anarrangement of this kind if they had thought that it would involvegrotesque results. The case of Supramani Ayer v. Changarapillai 1shows that, under the Hindu ecclesiastical law, a priesthood may beheritable, and it may well-have been within the contemplation ofall the parties to the memorandum of consent that any question asto who were or were not the heirs of a particular priest should bedetermined by Hindu law or custom. It was held by Sir JohnBonser C.J. and Withers J., in Gooneratne v. Perera,2 that theword.* “pending the action,” as used in section 404 of the CivilProcedure Code, mean ” before final decree,” and that there couldbe no substitution under that section after final decree had beenentered up. It would no doubt be possible for this Court, undersection 4 of the Code of Civil Procedure, to make a special order soas to secure the presence of all the necessary parties before theCourt, prior to an amendment of a decree under section 189. ButI do not think that any such order is required, or could be justified,in the present case. The learned District Judge considered, andthe allegations of the respondents in the affidavit in support oftheir petition warranted him in so doing, that the parties affected
'(1896) 2 N.L. R. 30*
* 2896) 2 N. L. R. 18$.
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by the proposed amendment of the decree were sufficiently beforehim. The point that I am now considering was not one of thegrounds of objection to the amendment of the decree in the lowerCourt, nor was it urged upon us at the first argument of this appeal.
I would dismiss the appeal, with costs.
This is an appeal from an order of the Judge of the DistrictCourt of Jaffna amending a decree of that Court entered up onMarch 19, 1891.
The action was brought by one Murugar Nannitamby againsttwo defendants, Valayuther Vaytilingam and Vayramuttu Aru-mugam, claiming a declaration that he was entitled to hold theoffice of manager of a certain Hindu temple, for an injunctionrestraining the defendants from preventing him from exercisingthe functions of manager, and for damages.
The defendants filed answer alleging, inter alia, that the manager-ship of the temple was not heritable, and could not be transmittedin succession. The answer went on to allege that the temple hadbeen built by an ancestor of the second defendant, and that he hadbeen succeeded by his descendants, as set out in the answer, untilthe managership came to the second defendant, who claimed to beentitled to the managership by prescription. The answer furtheralleged that the first defendant’s father had been officiating priestfor forty years, and that he had been succeeded by the first defendant,who had officiated as priest for seventeen years, and claimed thatthe first defendant was entitled by prescription to the office ofpriest.
After some further pleadings, under the practice in force at thetime, which add' little to the respective claims of the parties, thecase came on for trial on March 19, 1891. On that day theparties came to an agreement for settlement, which was put intowriting and signed by them.
The agreement provided that the plaintiff and his heirs, and thesecond defendant and his heirs, should be declared joint managersof the temple. That a ceremony known as a flagstaff ceremonyshould be conducted in a certain manner. That the first defendantand his heirs should be declared to be officiating priests of the templeand should have certain rights and should perform certain duties,and it further provided that the parties should bear their own costs.
The following journal entry was made by the Judge on March19, 1891:“ And parties present with their advocates. A memo-
randum of terms of settlement duly signed by parties filed (markedX). Counsel for parties ask that the Court enter a decree in termsof this agreement. The Court intimates that it cannot well incor-porate in the decree that portion referring to a particular ceremonyconnected with the flagstaff festival. Nor can it declare the first
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defendant to be entitled to the custody and possession of all thetemple property, movable and immovable, and decreeing that hemust furnish accounts. These points do not arise for adjudicationin the pleadings. The Court is ready to enter a decree adjudgingthe plaintiff and the second defendant to be joint managers of thetemple, and the first defendant to be officiating priest thereof.Counsel state that they are quite satisfied with this; they only, askthat the memorandum be filed. Let a decree be entered in termsof the memorandum, omitting the portions marked A and B asagreed on. Each party will pay their own costs.”
On the same day the decree was drawn up and signed by theJudge. It omitted the paragraphs A and B of the memorandumrelating to the flagstaff ceremony and the rights and duties of thepriest, and it also omitted the words “and his heirs ” in thedeclaration that the plaintiff and the second defendant should bedeclared managers, and in the declaration that the first defendantshould be declared officiating priest.
No objection was taken by the parties to the terms of the decreeas drawn up, which remained unchallenged for twenty-five years.
On November 7, 1916, all the parties to the action being thendead, the respondents, who claim to be the sons of the first defendant,and to be entitled to officiate as priests of the temple, petitionedthe District Judge to amend the decree of March 19, 1891, by addingthe words “ and his heirs ” 4n the various places where they had beenomitted in the decree, on the ground that the words had beenomitted in the decree by a clerical error. They made the son ofthe plaintiff and the two sons of the second defendant respondentsto the petition.
The District Judge has amended the decree in accordance withthe prayer of the petition, and from his order the present appealis brought.
I am of opinion that the order is wrong, and that the appealshould be allowed.
The amendment purports to be made under section 189 of theCivil Procedure Code. That section provides as follows:“ If the
decree is found to be at variance with the judgment, or if anyclerical or arithmetical error be found in the decree, the Court shall,of its own motion, or on that of any of the parties, amend thedecree so as to bring it into conformity with the judgment, or tocorrect such error. Provided that reasonable notice has been givento the parties or their proctors of the proposed amendment.”
That this is not a “ clerical error ” in the decree appears to bequite obvious. The words “ and his heirs have been omitted inno less than three places after the names of the various parties.Moreover, the words “ he is ” instead of "they are” have beeninserted, in the declaration of the second defendant's right to beofficiating priest. It seems to me to be impossible to imagine that
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so many variances with the terms of the memorandum, all of themmaking sense and consistent with one another, could have occurredthrough clerical errors, and I feel driven to the irresistible conclusionthat the alterations from the terms of the memorandum were madeby design. Neither does it appear to me that the decree is “ atvariance with the judgment, ” which is the other ground for theamendment of a decree under section 189.
In the first place, there does not appear to me to have heen any“ judgment ” at all in the case. “ Judgment " is defined bysection 5 of the Code to mean the statement given by the Judgeof the grounds of his decree or order. ” The only grounds givenby the Judge are that the parties have settled the case, and that hecannot incorporate in the decree anything about the flagstaff festivalor the rights of the priest.
What took place on March 19, 1891, appears to me to have beennot a judgment of the Court under section 189, which seems torefer to a judgment after hearing under the preceding sections 184to 188, but an assent of the Court to a compromise under section 408.Nor does there seem to me to be any mistake whatsoever in thedecree as drawn up, or any variance with what the Judge expressedhis willingness to decree. He expressly told the parties that hewas willing to adjudge the plaintiff and second defendant jointmanagers and the first defendant to be officiating priest, and saidnothing whatever about “ heirs, " and he declined to put anythingin the decree about certain other matters that did not arise in thepleadings. When he finally directed decree to be entered in termsof the memorandum, _ omitting the portions marked A and B, Iconsider he meant in so far as it was consistent with what he hadalready said that he would consent to.
The addition of the words relating to the heirs of the partieswould have been open to the same objection as the clauses relatingto the flagstaff ceremony and the rights and duties of the priest,,for neither the first nor second defendants suggested in the pleadingsthat either the management or the priesthood were hereditary, butboth claimed by prescription, and in fact denied in the answerthat the management was heritable, and any declaration that theirheirs were entitled to the offices would have been going beyond thepower to enter a consent decree, “ so far as it relates to the action,conferred by section 408 of the Code.
The Judge also probably saw that it was not within his power tomake a decree declaring the rights of persons not in existence orbefore the Court, and also that it would be going beyond the scopeof his jurisdiction to declare that the “ heirs 19 of some personshould be entitled to officiate as priests of a temple. In a decree,the word “ heirs M would have to be construed in its legal sense, andit would amount to a declaration that persons who might perhapsbe the widow and daughters of the priest were entitled to officiate.
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I feel no doubt that the words were never Intended by the Judgeto be inserted in the decree, and their omission was in accordancewith his expressed intention, and was no mistake or clerical error.
There are two other' objections to the order of the Judge, on bothof which the appeal is, in my opinion, entitled to succeed, namely,that the persons who moved to amend the decree are not “ partiesto the action, and that notice has not been given to the “ partiesof the proposed amendment (see Peris v. Mudalihamy *). As I amof opinion that the appeal should succeed on the merits, I do notthink it necessary to deal with these objections at length.
De Sampayo J.—
In this action, which was instituted in June, 1888, the plaintiffclaimed to be the manager of the Hindu temple called “ BsuraVenayager Kail, ” at Sulipuram, .and traced his title to such officeby descent from the alleged original founder of the temple, . andstated that the office of manager was so transmitted from one tothe other of the persons mentioned in the plaint, including .theplaintiff, in conformity with local usage. As such manager heclaimed to be entitled to have charge of the property of the temple,movable and immovable, to superintend the due observance of itsreligious rites, and specially to have the sole conduct of the chieffestival of the temple on the first day thereof. He complainedthat the two defendants had hindered him in the exercise of hisrights as manager, and had interfered with his custody of theproperty of the temple; and he prayed for a declaration that hewas entitled to hold the office of manager and to exercise the rightsclaimed, and for an injunction and damages. The defendantsdenied the plaintiff’s claim, and pleaded that " the right to themanagement of the temple is not heritable, and cannot be trans-mitted in succession, ” though they themselves proceeded to statethat the temple was founded by the second defendant’s ancestor,that the managership was held by the descendants and relatives ofthat founder, and that the second defendant, on the death of hisfather in 1886, succeeded to the management of the temple. Thefirst defendant was a priest, and the defendants stated as regardshim that his late father was officiating priest of this temple for fortyyears, and on his death, about seventeen years before the action,he was succeeded by his son, the first defendant, who further claimedto be entitled to the office of officiating priest by prescription.The plaintiff filed a replication, in which, while admitting thatthe first defendant occasionally performed ceremonies under theplaintiff’s authority, the plaintiff denied that the first defendantever was officiating priest. On these pleadings the case ultimatelycame on for trial on March 19, 1891, when the parties stated tothe Court they had settled the case, and submitted a written
1 (1916) 2 C. L. R. 71.
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memorandum of the terms of settlement, and asked the Court toenter a decree in those terms. The terms in substance were thatthe plaintiff and his heirs, and the second defendant and his heirs,should be declared to be the joint managers of the temple, and thatthe first defendant and his heirs should be declared to be theofficiating priests of the temple. There were two other termsrelating to what was called the flagstaff festival, and giving thecustody of the property to the first defendant with the obligationof rendering accounts. But the District Judge considered he couldnot embody these latter terms in the decree, as those points did notarise for adjudication in the action, and he made order for enteringa decree in terms of the memorandum, omitting the portionsmarked A and B, which contained the terms to be excluded. Adecree was accordingly entered, but the expression “ and his heirs,which in the memorandum follows after the designation of each ofthe parties, does not appear in the decree as entered. The plaintiffand the defendants have since died, and the parties to this appealare respectively the sons of the plaintiff and the defendants. The■ first two respondents, who are the sons of the first defendant an'lare de facto officiating priests of the temple, applied that the decreebe amended by inserting the words “ and his heirs ” in the relevantplaces, on the ground that the same were omitted in the decree byan error; and this appeal is taken by two of the respondents tothe application, who are the sons of the original second defendant,from an order of the District Judge allowing the amendment.
The first question arising for decision is whether the omissionwas intentional orflu^to inadvertence. The appellants place greatreliance on a passage,, in the District Judge’s order, where, afterstating that the two terms above referred to could not be embodiedin the decree, he said: " The Court is ready to enter a decreeadjudging the plaintiff and the second defendant to be joint managersof the temple, and the first defendant the officiating priest thereof,and it is contended that the District Judge did not intend to includethe heirs of the parties in the declaration. To my mind it isclear from the context that this passage merely emphasizes anddistinguishes the terms to be excluded, and is not intended to limitthe agreement of the parties still further by omitting their heirs,and when the District Judge concluded his order thus: “ Let adecree be entered in terms of the memorandum, omitting theportions there marked A and B, ” there is hardly room for anydoubt as to the intention of the District Judge to embody in thedecree, all the terms agreed upon, save the terms marked A and B.Consequently, I think the omission of the words " and his heirs ”was due to an error on the part of the draftsman of the decree,and was unnoticed by the District Judge when he signed the decree.Nor do I think, as was argued before us, that the District Judgemust b« taken to have intended to omit the words, because the
i ■•• >
Du 8amtayo JT.Natmitamby
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03B SAMPA'rO J.
case concerned the immediate parties, and no declaration wasasked for, and could be made in favour of their successors. I haveabove reproduced the substance of the pleadings, in order to show' that the rival ela-ims of the plaintiff and the second defendantto be managers of the temple were based on descent from a remoteancestor, and that the claim of the first defendant to be officiatingpriest was practically similar. It seems to me that the agreementwas intended once for all to settle the nature of the tenure of thoseoffices, and to have it recorded that it was regulated, not by suchmodes as appointment or selection, but by descent. . I do not findany insuperable difficulty in the use of the word 11 heirs M to expressthis idea. The usual meaning of the term no doubt is “ heirs abintestato, ” but I believe the Tamil equivalent of the term is muchwider, and includes relationship by blood, and sometimes even bymarriage. The word may in a sense be indefinite, but the partiesmust be taken to have understood whom they meant by “ heirs, ”and to have referred to the local usage mentioned in the' plaintfor determining them. Hereditary title to both lay and priestlyincumbencies of temples is well known in Jaffna. Questions mayhereafter arise between individual claimants who seek to come inas heirs of the parties to the action, but such possible questionsshould not, I think, be in the way of giving effect to the actualagreement of the parties:
Another point taken in connection with the same objection isthat the succession to these offices was not. involved in the action,and as under section 408 of the Civil Procedure Code the Court canpass a decree in accordance with an agreement only “ so far as itrelates to the action, ” the District Judge must be taken to haverefused to include “ heirs M in the declaration. As I have en-deavoured to show, the question of the hereditary right by whichthe parties claimed to be entitled to these offices was involved inthe action, and I think that any agreement on that point, whichmust necessarily have regard also to the tenure of the offices whenone or more of the parties shall have died, relates to the subject-matter of the action. A compromise to be recorded and embodiedin a decree need not necessarily be confined to the relief originallyprayed for. Section 375 of the old Indian Code and Order 23,rule 3, of the present Code correspond to section 408 of our Code,and it has been held in India that the language of the section iswide and general, and does not preclude parties from settling theirdisputes on such lawful terms as they might agree to, without beingrestricted to such relief as one only of the parties had chosen' toclaim in the plaint; and so where the plaintiff sued on certain bondsand prayed for a money decree, and where by compromise he wasgiven judgment for a specified sun} payable in instalments, and acharge was created on certain immovable property of the defendants,the High Court of Madras held that the agreement as regards the
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charge was not only lawful, but “ related to the suit, ” so as to beembodied in the decree (Joti Kuruvetappa v. Izari Sirusappa‘).The learned authors of “ Civil Procedure in British India, ” in theircommentary on Order 23, rule 3, say generally: “ The decree passedon a compromise cannot be regarded as ultra vires, simply becausdit goes beyond the subject matter of the suit and contains otherconditions. ” The vsubject-matter of the present action is the layand ecclesiastical incumbency of the temple, and the compromisesettling the rule of succession appears to me to “ relate to theaction.” I think, therefore, that the argument on this point isuntenable.
. The next point to be considered is as to the power of the Courtto make the amendment. Section 189 provides for the amendmentof a decree which is “at variance with the judgment, ” or contains” any clerical or arithmetical error. ” It was said that there wasin this case no “ judgment ” with which the decree was to bebrought into conformity. In my opinion the order of the DistrictJudge, in which he discusses the terms of settlement submitted tohim, and gives his reasons for excluding some and adopting others,,is for this purpose a judgment. Apart from that, I think theomission in the decree is a “ clerical error, ” which may be correctedunder the above section, even if there be no “ judgment. ” Somedifficulty, however, arises from the fact that the original parties arenow dead. Section 189 provides for notice of the proposed amend-ment being given to the parties or their proctors. But it is notdisputed that if the parties in any case are dead, the applicationfor an amendment may be made by, and notice thereof given to,their legal representatives, and, in a proper case, by or to all theirheirs. The applicants in their affidavit, with which the DistrictJudge was satisfied, sufficiently stated the representative characterof themselves and of the respondents to their application, and noquestion on that point was raised in the Court below, and in thesecircumstances I am not disposed to interfere on a technical objectionof this kind. As Hatton v. Harris,2 cited by Mr. Hayley, shows,the lapse of time since the entry of the decree is not of itself anobjection to its amendment now.
In my opinion the appeal fails and should be dismissed, withcosts.
1 (1907) I. L. R. SO Mad. 478.
* (1892) A. O. 547.
NANNITAMBY v. VAYTILINGAM et al