062-NLR-NLR-V-41-DE-SILVA-v.-WILLIAM-et-al.pdf
260
de Silva v. William.
1939
Present: Keuneman and Wijeyewardene JJ.
DE SILVA v. WILLIAM et al.
308—D C. Galle, 35,440.
Decree—Plea of res judicata—Power of Court to construe the decree withreference to judgment—Arithmetical error in decree.
Where a Court has to decide a question of res judicata in respect of theshares allotted to the parties in a previous partition action the decreealone need be considered.
But where the decree contains an arithmetical error, it may beconstrued with reference to the judgment.
1 (1933) 35 N. L. R. 57.= (1936) 38 S’. L. R. 96.
3 (1936) 38 S'. L. R. 271.
WIJEYEWARDENE J.—de Silva v. William.
261
^ PPEAL from an order of the District Judge of Galle.
L. A. Rajapakse (with him S. W. Jayasuriya and Senaratne), forplaintiff, appellant.
N. E. Weerasooria, K.C. (with him Kurukulasuriya and A. E. R. Corea),for first, third, seventh, and eighth defendants, respondents.
Cur. adv. vult.
April 3, 1939. Wijeyewardene J.—
The plaintiff-appellant filed this action for the partition of a land calledHimburanawatta claiming to be entitled to certain undivided shares inthe said land under deed No. 4,304 of October 4, 1934 (marked P 2)executed by one Gabriel de Silva.
There was an earlier partition case D. C. Galle, No. 26,256, in respect ofthe same land in which Gabriel de Silva, the plaintiff-appellant’s vendor,was the fifteenth defendant. The other parties in the two cases areidentical. Judgment was entered in that case on June 30, 1930. Inthat action Gabriel de Silva claimed the shares which he conveyed laterby P 2. The District Judge held that Gabriel de Silva was entitled to asmaller share than he claimed. The share allotted to Gabriel de Silva inthe judgment was represented in the decree by an arithmetical expressionwhich, if correctly interpreted, gave him a larger share. Gabriel de Silvaappealed against the preliminary decree and the appeal was dismissed bythis Court. Some time after the dismissal of the appeal the plaintiff in
C. Galle, No. 26,256, discovered the “ error ” in the preliminary decreeand applied to the District Court to amend the decree. On an objectiontaken by Gabriel de Silva the District Judge disallowed the applicationon the ground that he had no jurisdiction to amend the decree as it hadbecome a decree of the Supreme Court and made order on October 7, 1932,that the plaintiff should if so advised move the Supreme Court to amendthe decree. The plaintiff failed to take any steps after that order andthe District Judge on February 24, 1934, entered an order of abatementunder section 402 of the Civil Procedure Code, 1889. In December, 1937,the plaintiff’s proctor applied to the District Judge under section 403 ofthe Code for an order to set aside the order of abatement. Notice of theapplication was issued on the parties but owing to the non-service of thenotice on some of the parties the District Judge has not disposed of theapplication as yet.
The present action for a partition was filed in June, 1937. After theparties led evidence at the trial the District Judge heard argument on thelegal question which was formulated as follows:—“What is the effect ofthe preliminary decree in partition case No. 26,256 ? ” He held that thejudgment in D. C. Galle, No 26,256, and not the “ erronous ” decreeoperated as res judicata and that the shares of the parties in the presentaction should be determined by reference to the judgment and not thedecree in that case. The plaintiff-appellant has preferred the presentappeal against that judgment.
I find it difficult to assent to the proposition of law as stated by thelearned District Judge. Section 207 of the Civil Procedure Code states
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WIJEYEWARDENE J.—de Silva v. William..
in unambiguous terms that it is the decree passed by a Court that is finalbetween the parties. It is, no doubt, true that frequently the judgmentand even the pleadings in an action are examined in order to ascertainthe questions of fact and law that have become res judicata by the passingof the decree. This is done for the obvious reason that the decree whichstates only the relief granted does not show the various questions of factand law which were put in issue or could have been put in issue betweenthe parties. But when a court has to decide a question of res judicatain respect of the shares allotted to the parties in a previous partitionaction, the decree alone need be considered as it contains normally all thenecessary information with regard to the shares.
The preliminary decree entered in D. C. Galle, No. 26,256, however,does not admit of an intelligent interpretation. If the parties to thepresent action are declared entitled to the respective shares set out inthat preliminary decree, it will not be possible to effect a partition of theland as the aggregate of the several fractions representing the severalshares exceed unity. The decree, as it stands, is unintelligible. I think,therefore, that in the circumstances of the present case it is eminentlydesirable and even necessary that the judgment in D. C. Galle, No. 26,256,should be examined in order to construe the decree entered in that case.When the decree is read in the light of that judgment it becomes clearthat the draftsman responsible for the decree thought that the fraction987/5760 was correctly represented by the arithmetical expression i plus| of 141/720 and did not know that the correct way of writing the arith-metical equivalent of 987/5760 was (i plus -§) of 141/720 and not plus jjof 141/720. The learned District Judge has in the present action allottedto the plaintiff, in addition to some other interests, 987/5760 shares whichthe ^draftsman of the earlier decree sought to represent by plus I of141/720. I think, therefore, that the District Judge has given thecorrect share to the plaintiff. In reaching this decision I have regardedthe decree as the final judicial determination of the suit, but in view of thefact that certain arithmetical expressions used in the decree becomeunintelligible when read with the rest of the decree, I have construedthe decree with reference to the judgment. .
It was also argued before us by the Counsel for the respondent that P 2did not convey any title to the plaintiff as it was executed during thependency of D. C. Galle, No. 26,256. This deed, however, has beenexecuted after an order of abatement was entered in that case. Thatorder of abatement has not been set aside. This Court has held in Coorayv. Perera 1 and Bulner v. Rajapakse “ that a deed executed during theperiod intervening between an order of abatement and the setting asideof such an order is not obnoxious to the provisions of section 17 ofOrdinance No. 10 of 1863. I hold therefore that the deed P 2 is not void.
I dismiss the appeal but make no order as to the costs of the appeal.
Keuneman J.—I agree.
Appeal dismissed.
* 11926) 28 N. L. R. 260.
1 (1914) 17 N. L. R. 460.