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Present : Lascelles C. J. and Wood Benton J.
NATCHIA et al. v. NATCHLA et al.
66—D.C. Galle, 8,138
Amendment of final decree in partition action—Final decree—“ At anytime "—Cioil Procedure Code, s. 189.
There is nothing in section 189 of the Civil Procedure Code which limitsthe time within which a decree can be rectified.
|p HE facts are fully set out in the judgment.
Bawa, K.C., for the plaintiffs, appellants.
A. St. V. Tayewardene, for the defendants, respondents.
Cur. adv. vult.
June 26, .'912. Lascelles C.J.—
This is an appeal from an order of the District Judge refusingto amend the final decree dated December 5, 1907, in a partitionaction. The motion to amend the decree was. made by the plaintiff,under section 189 of the Civil Procedure Code, on the ground ofclerical error. The error is admitted. The first defendant, who wasintended to get lot 3 of 5$ perches, was awarded lot 4 of 22 perches,and the fourth defendant, who was intended to get lot 4 of 22 perches,was awarded lot 3 of 5$ perches, the mistake being due to a clericalerror on the part of the Commissioner who framed the scheme ofpartition. No exception can, I think, be taken to the learnedJudge’s ruling that he had power to correct the error, for though thewords " at any time ” which appear in the corresponding English“ Slip Orders ” (0. 28, r. 11). are not to be found in section 189,there is nothing in the section which limits the time within whichthe decree can be rectified. The substantial question is whetherthe refusal of the District Judge to amend the decree is justifiableon grounds of expediency and convenience. There have beendealings with both lots. The first and fourth defendants have soldlot 3 (5| perches) in 1910, and the first and second defendants havesold lot 4 (22 perches) in the same year. But the deeds show thatthe first and fourth defendants have been content to possess thelots according to the shares to which they aire really entitled (;.e.,as shown in plan 73b), though the decree entitles them to lots 4 and3 as shown in plan 73a. As the learned District Judge has pointedout, the error cannot be completely rectified on account of tbe deeds
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which have been subsequently executed. An amendment of thedecree will necessitate corrections in both deeds if they are toharmonize with the decree, and this rectification cannot be madewithout expense, and probably not without litigation. But on thewhole, I think that the balance of convenience is in favour ofamending the decree so as to agree with the expressed intention ofthe Court. That disputes will arise with regard to the lots is almostcertain.- The not very reasonable objection of the respondents tothe amendment is an indication of what may be expected. It maybe that litigation with regard to the deeds containing the mis-descriptions of the lots is inevitable; but if the decree is amendedso as to show clearly the partition which was intended, the litigationwill be short-lived. The amended decree will furnish a decisiveanswer to any future claim based on the error in the original decree.I would set aside the order of the District Court and amend thedecree as prayed for, and would give the appellant his costs hereand in the Court below.
Wood Renton J.—I agree.
NATCHIA et al. v. NATCHIA et al