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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Wood Benton.
RAMASAMY PULLE v. DE SILVA.D. C., Colombo, 2,310.
District Court—Irregular or improper order—No inherent power to setaside- its ovm order—Civil Procedure Code., s. 189.
A Court has no jurisdiction (except as provided by section 189of the Ci vil Procedure Code) to vacate or alter an order after it hasbeen passed.
Preston Banking Co. v. Allsup tfc Sons1 and Ainsworth v. Wilding.afollowed.
Mohide.cn v. Coder » over-ruled.
PPEAL from an order of the Additional District Judge (H. A.
Loos, Esq.). The facts and arguments sufficiently appearin the judgment of Wood Benton J.
H. A. Jayewardene, for the appellant.
Sampayo, K.C. ( F. M. de Saram with him), for the respondent.
Cur. adv. wit.
October 27, 1909. Wood Renton J.—
The respondent was adjudicated insolvent in the District Courtof Colombo on July 13,1908. On October 15 a deed of compositionwas filed on his behalf. The first and second sittings were closed,and a special meeting of creditors to accept the deed of compositionwas fixed for November 12. On that day no creditors appeared. Asthe deed had been signed by nine-tenths in number and value ofthe respondent’s creditors, it was accepted ; and on November 14an order was made annulling the adjudication and dismissing thesequestration. On May 10, 1909, the respondent’s proctors movedthat the order of November 14, 1908, should be vacated on theground that section 140 of Ordinance No. 7 of 1853 requires thattwo meetings, after twenty-one days’ notice of each has been givenin tire Government Gazette, should be held before a deed of composi-tion can be accepted and tire adjudication annulled ; whereas inthese proceedings there had only been one meeting. Notice of thismotion was Issued to the creditors, who had not signed the deed ofcomposition. The present appellant, who is one of such creditor's,
1 (1895) 1 Ch. 141.* (1890) 1 Cli. 073.
9 (1893) 3 C. L R. 13.
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appeared and opposed the motion. But on July 26 last the DistrictJudge allowed it, and set the order of November 14, 1908, aside.This appeal is against the order of July 26, 1909.
In my opinion that order is wrong. Neither under OrdinanceNo. 7 of 1863 nor under the Civil Procedure Code had the DistrictJudge any power to make it. Ordinance No. 7 of 1853 containsno provision bearing on the point at all. Section 189 of the (jodeenables the Court making a decree to amend it, on reasonable noticeof the proposed amendment to the parties or their proctors, wherethe decree is found to be at variance with the judgment, or containssome clerical or arithmetical error. It lias, indeed, been held byWithers J. in Mohideen v. Coder1 that a Court lias an inherentright to vacate an order or decree into which it has been surprisedby fraud, collusion, or mistake of fact. But the case of Davenportv. Stafford,2 on which Withers J. relies in support of his ruling, hasbeen explained in Preston Banking Co. v. AUswp ds Sons 3 as turning(if it can be upheld at all) on the former inherent power of the Courtof Chancery to re-hear cases after the drawing up and passing ofdecrees, and the modem English decisions (see Preston Banking Co.v. AUswp and Sons ; 3 Ainsworth v. Wilding 4) negative the existenceof any such inherent power as has been exercised by the learnedDistrict Judge in this case even when a decree has been obtained byfraud (Flower v. Lloyd6). I think that Mohideen v. Coder1 shouldbe over-ruled.
I would set aside the order of July 26, 1909. The appellant-should have his costs of opposition to the motion of May 10, 1909,and of this appeal.
Hutchinson C.J.—I concur.
(1893) 3 C. L. R. 13.'(1895) 1 Gh
(7AV5) 5 Beov. 503- 522.4 (1896) 1 Gh.
8 (1877) 6 Gh. 297,
RAMASAMY PULLE v. DE SILVA