CAEPEN CHETTY v. MAJID'U.
D. 0., Galle, 4,913.
Decree—Amendment of, in terms of judgment—Power of Courts to amend—Civil Procedure Code, s. 189.
Where the judgment ofCourt declared the title of the plaintiff to
be superior to that of the defendant and directed a declaration of titleto be entered in plaintiff’s favour, and the decree following thereonmerely declared the plaintiff’s title, but did not. direct the placing of theplaintiff in possession,—**
Held, it was open to the Court to amend the decree by inserting anorder for the ejectment of the defendant and for the placing of theplaintiff in possession of the property decreed.*
HE plaintiff and the third defendant held mutually exclusivetransfers of a iand from *the same source.
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1908. The District Judge (Mr. F. J. de Livetra) found in favour of theSeptember JO, plaintiff in a judgment running as follows: —
“ I consider the plaintiff’s title superior to that of the third defen-dant because plaintiff’s transfer was registered’ before the transferin favour of the third defendant. Let a declaration of title beentered in plaintiff’s favour for the 13th perches extent of land andhouse conveyed to them by Fiscal’s transfer No. 7,270; dated 8thMarch, 1895; third defendant will pay plaintiff’s costs. ”
The decree founded thereon contained no order directing theejectment of the third defendant or the placing of the plaintiffsin possession.
The third defendant took advantage of the omission to resist theplaintiffs when they tried to take possession. After various otherunsuccessful steps, the plaintiff applied to the District Court on0th April, 1903, for amendment of the decree by adding an orderfor the ejectment of the third defendant and the placing of theplaintiff in possession.
The third defendant resisted the application on the ground thatthe decree was not at variance with the judgment (section 189,Civil Procedure Code) and that it came under the head (g) ofsection 217, and that the Court had no power to vary the judgment.
The District Judge (Mr. Ct. A. Baumgartner) over-ruled theobjection and allowed the amendment on the ground that theright of possession was consequential on the exclusive title beingin plaintiffs, and that section 207, Civil Procedure Code, woulddebar the plaintiff from obtaining any remedy by separate action,so that the relief they were obviously entitled to must of necessitybe granted to them on the present application (Voet 4?, 7. 27).
The third defendant appealed.
Bawa, for appellant.
Van Langenberg, for respondent.
The Supreme Court dismissed the appeal on the 10th September..1903.
10th September, 1903. Wendt, J.—
JThen, there is a mbre substantial objection, that the
District Court h^s under the circumstances no power to amend itsdecree, because its powers in that respect are strictly limited bysection 189 of the Ciyil Procedure Code. It is said that this decreeis not “ at variance with the judgment, ” and that the alleged erroris not a “ clerical or arithmetical^ error. ” * I, however, regard thejudgment of the District Judge as< not intended to define, and notdefining, all the relief which the plaintiffs were to receive as a
( 147 )
.consequence of the decision of the Court: as the District -Judge 1903.who made the order now under appeal has pointed out. the judg- September 10.ment merely directed judgment to be entered for the plaintiffs ;yE(fI>Tj j.and apportioned the costs of the action.
X think, in the ordinary course, it would have been proper forthe officer of the .Court drawing up the decree to have includedin it the further relief prayed for by the plaintiffs, viz., a restora-tion to possession, without which the judgment was absolutelyvalueless; and had he done so, I think it would have beendifficult for the third defendant to persuade the Appellate Courtthat the decree was at variance with the judgment-. If this viewhie correct, the decree as drawn up was at variance with thejudgment in omitting to include something which the judgment-intended to grant, and therefore the present application wouldcome within the strict reading of section 189.
Middleton, J —Agreed.
CARPEN CHETTY v. MAJIDU