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Present: Lascelles C.J. and Middleton J.
DEONIS v. SAMAEASINGHE et al.
218—D. G. Galle, 7,931.
Costs—Judgment end decree of Supreme Court silent as to costs in thelowerCourt—SupremeCourt hasnopower to – emenddecree after
it had passed theseed—CivilProcedure Code, s.189—Inherent
power of Court*
Where the Supreme Court set aside the judgment appealedagainst and awarded costs of appeal to the appellants, and wherethe judgment and- decree of the Supreme Court were silent ae to thecosts in .the tower Court—
Held, that the Supreme Court had no power after the decree hadpassed the seal to supply the omission.
It isnot competentto a Courttoamend its. decreeon- grounds
other than those stated in section 189 of the Civil Procedure Code.
IiASCBLLEs C.J.—Quite apart from the provisions of the CivilProcedure Code, the Supreme Court has power to amend its decreesso as to bring them in accordance with its intention as expressedin itsjudgment. Butit is .anothermatter, after adecree haft
passed the seal, to supply an omission which has occurredthrough inadvertence.
(J1 HE facts are fully set out in the judgment of the Chief Justice.
Bawa, for the added defendants, appellants.—As the decree nowstands the appellants have to pay the costs of a contention inwhich they succeeded. It is clear that the omission to make an orderas to the costs in the lower Court was due to an oversight. TheSupreme Court has the power to supply the omission. See Shmappuv. Punchappu;l Carlill & Go. v. Rawther;2 Pereira's Institutes, vol.I., pp. 150 and 306.
Where the decree is silent as to costs, the successful appellant isentitled to recover his costs. (I Thom. 485.)
A.- St. V. Jayewardene (with him Jayatileke), for the respondent.—The judgment was pronounced in open Court, and no objection wastaken at the time. It is now too late, as the decree has passedthe seal, and as the present application does not come under section189 of the Civil Procedure Code. It is not possible to recall allthe considerations that influenced the Supreme Court to makethis order.
i (1892) 1 8* C. R. 121.2 (1899) 1 Tam. 18.
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The passage in Thomson refers to a case where no order at all ismade as to costs, which is not the case here. The powers of theSupreme Court are defined by Ordinances. See In re Local Boardof Jaffna.1 Counsel also cited Thomatherar v. Hensan.2
Bawa, in reply.
November 15, 1911. Lascelles C.J.—
Cur. adv. vult.
This is a motion by the appellants to amend the decree of thisCourt by ordering the respondent to pay the appellants’ costs ofcontention in the District Court.
In the District Court the appellants had failed in their contention,and were ordered to pay the respondent’s costs. On appeal, how-ever, the appellants succeeded in their contention, and were allowedthe costs of appeal, but the judgment and decree of this Court' areboth, silent as to the costs in the Court below; with the result that theorder of the District Court stands, and the appellants are still liableto pay the respondent’s costs in the Court below. There can, Ithink, be no doubt but that the omission to make order with regardto the costs in the Court below was due to an oversight.
Judgment was pronounced in open Court on August 28, 1911, atthe close of the argument, and the present motion, if made on thatdate, or at any time before the decree was perfected, would almostcertainly have been successful. TEe question for decision is whetherthe application can be allowed at this stage. Section 189 of theCivil Procedure Code empowers a Court to amend its decree oncertain specified grounds, namely, if the decree is at variance withthe judgment, or on account of clerical or arithmetical errors, butobviously none of these grounds are available in the present case.The question, in substance, is whether it is competent to a Court toamend its decree on grounds other than those stated in section 189.The correction which is now sought for appears to be one whichcould have been made under the English Slip Order (0. 28, r. ll),In re Rudd,1 but that order is wider in its scope than section 189 ofthe Civil Procedure Code, inasmuch as it provides for errors arisingfrom accidental slips or omissions, and is not limited to the correc-tion of variations between the judgment and decree and clerical orarithmetical errors.
The question then arises whether the Supreme Court possessesinherent power to make an amendment of this nature. That thisCourt, quite apart from the provisions of the Civil Procedure Code,has power to amend its decrees so as to bring them in accordancewith its intention as expressed in its judgment can hardly • bedoubted. But it is another matter, after a decree has passed theseal, to supply an omission which has occurred through inadvertence.
i (1907) 1 A. C. R. 1-28.2 (1908) 4 Bal. 68.
» W. N. (1887) 251.
In India it has Been Eel9, under the corresponding section (206) ofthe Civil Procedure Code of 1882, that a Court should not amendexcept in accordance with the terms of the section (Abdul HayaiKhan v. Chunia Knar1), and in England it has been held that aCourt cannot correct a mistake of its own after the judgment hasbeen perfected, even though the error be apparent on the face of thejudgment (Charles Bright & Co., Ltd. v. Sellar 2).
In the face of these authorities, and in the absence of any provisionin the* Courts Ordinance from which it can be implied that theSupreme Court possesses inherent power to make a correction ofthis nature, I am obliged to hold, with some reluctance, that we areunable, at this stage, to accede to this motion.
The motion is dismissed with costs.
Middleton J.—I agree.
DEONIS v. SAMARASINGHE et al