Mrs. M. NAVARATNAM, Appellant, and S. H. SOMAWATHIE SIRIWARENA and 2 others, Res

083-NLR-NLR-V-70-Mrs.-M.-NAVARATNAM-Appellant-and-S.-H.-SOMAWATHIE-SIRIWARENA-and-2-others-Res.pdf


Navaralnam v. Siriwardena
361
1968Present : H. N. G. Fernando, C.J., Tamblah, J.,and Siva Supramanlam, J.Mrs. M. NAVARATNAM, Appellant, and S. H. SOMAWATHIESIRIWARDENA and 2 others, Respondents
S. C. 170164—D. C. Anuradhapura, 6070JMB
Partition action—Erroneous interlocutory and final decrees—Power of Court toamend them subsequently—Finding in judgment that a share is subject to amortgage—Omission to reserve in the interlocutory and final decrees the rights ofthe mortgagee—Sale of the share prior to amendment of the decrees—Effect—Scope of final and conclusive effect of interlocutory and final decrees—CivilProcedure Code, ss. 5, 187, 188, 189—Partition Act (Cap. 69), as. 6 to 9, 26,36, 48 (1), 48 (3), 61, 79.
Held by Tambiah, J., and Siva Supramaniam, J. (H. N. G, Fernando, C. J.,dissenting) :—Where, in an action governed by the Partition Act, the decreewhich the Court purports to enter under s. 26 of the Act is not in accordancewith the findings in the judgment, such decree is not an interlocutory decreewhich has a final and conclusive effect under s. 48 (1). If the interlocutorydecree is not such a decree as the Judge is empowered to sign under s. 26, thefinal decree for partition entered in pursuance of that decree is also not a valid“ final decree under s. 36 ” having the final and conclusive effect under s. 48.In such a case the Court has the power, by virtue of the provisions of s. 189 ofthe Civil Procedure Code read with s. 79 of the Partition Act, to amend on asubsequent date the erroneous interlocutory and final decrees so as to bringthem into conformity with the findings in the judgment, even though a dividedshare as described erroneously in the unamended decrees has already beensold and the purchaser’s rights under the sale would be adversely affected bythe subsequent amendment of the decrees.
In partition action No. 4417 the trial Judge found in his judgment that anundivided one-half share of the corpus was subject to a mortgage bond executedon 30th November 1954. Nevertheless the rights of the mortgagee, who wasa party to the action, were not reserved either in the interlocutory decree or inthe final decree entered on 11th October 1956 and 11th September 1958respectively. Both decrees were registered. Thereafter, the person who wasallotted the mortgaged share sold it “free from any encumbrance ’* on 24thJune 1960. On 14th October 1960, upon the joint consent motion of the parties’Proctors seeking amendment of the decrees, the Court brought the decrees intoconformity with the finding in the judgment by declaring that the dividedshare that had been allotted in lieu of the mortgaged undivided half-share wassubject to the mortgage. The present action was subsequently broughtby the mortgagee to enforce her rights on the mortgage.
Held (H. N. G. Fernando, C.J., dissenting), that the interlocutory decree andthe final decree that were originally entered on 11th October 1956 and 11thSeptember 1958 respectively did not have the final and conclusive effectcontemplated in s. 48 of the Partition Act, and the Court had the power,under s. 189 of the Civil Procedure Code, to effect the amendments madesubsequently on 14th October 1960. Accordingly, the divided share which hadbeen sold on 24th June 1960 “ free from any encumbrance ” was subjectto the mortgage executed in favour of the present plaintiff on 30thNovember 1954. The plaintiff was, therefore, entitled to a hypothecary decree.
L XX—16
1*H 13548—2,ICC (5/68)
3G2
H. X. G. FERNANDO, C.J.—Navaratnam v. Siriwardena
.A.PPEAL from a judgment of the District Court, Anuradhapura.This case was referred to a Bench of three Judges in terms of section38 of the Courts Ordinance, owing to a difference of opinion betweenthe two Judges before whom it was previously argued.
C. Thiagalingam, Q.C., with T. Parathalingam, for the 3rd Defendant-Appellant.
H. W. Jayp.wardene, Q.C., with E. S. Amerasinghe and C. A. Amera-singhe, for the Plaintiff-Respondent.
Cur. adv. vult.
February 18, 1968. H. N. G. Fernando, C.J.—
I regret that I am unable to agree with the conclusion of law whichmy brothers have reached in this appeal. That conclusion, it seems tome, is based on a literal construction of s. 189 of the Code, and fails totake account of the intention of the Legislature expressed in that sectionand in the relevant provisions of the Partition Act.
Section 189 empowers a Court—
(а)to correct any clerical or arithmetical mistake in a judgment ;
(б)to correct any error arising from an accidental slip or omission in
a judgment ;
to make any amendment necessary to bring a decree into conformitywith a judgment.
In each of these cases, there will have been a fault on the part of theCourt resulting in prejudice to a party, and justice demands that theCourt corrects its wrongful act. Nevertheless I cannot agree that s. 189casts on the Court a peremptory duty to make the correction. Sucha peremptory duty would arise only if the section provided that theCourt shall make the correction or amendment. Instead the sectionhas only the word ce may ” which (save in exceptional cases) is merelyempowering and not compelling. The fact that the Court is not boundto exercise the power to correct or amend its own errors is brought outin the dictum of Lord Watson on which my brother Tambiah relies :—“ it is always within the competency of the Court, if nothing hasintervened which renders it inexpedient or inequitable to do so, to correctthe record ”. The words which I have italicized constitute in myopinion a just and necessary limitation of the power of correction.
It is not difficult to envisage cases in which it would be inexpedientor inequitable for a Court to amend a decree. Let me mention someexamples :
H. N. G. FERNANDO, C.J.—N avaratnam v. Siriwardena
363
(а)The judgment in a divorce action brought by a wife provides fora divorce and for alimony of Rs. 200 per month. But by a typing errorthe decree orders the payment of Rs. 400 per month. The parties donot notice the error, and the amount of Rs. 400 per month is regularlypaid for 2 years and received in good faith by the wife, and she spendsthe full amount for her maintenance. After two years, the formerhusband applies to the Court for amendment of the decree. If theusual amendment is made, that is, to take effect from the date of theoriginal decree, the consequence will be that the former ■wife musteither repay the Rs. 4,800 which was over-paid, or else set off thealimony for the next two years against the amount due from her.Re-payment is not possible, because the wife has no other propertyor income ; and if there is to be a set-off, then the wife will have nothingwith which to maintain herself for the next two years. Surely, insuch circumstances, it would be neither expedient nor equitable toamend the decree, except perhaps prospectively.
(б)A guardian files action for personal injuries, such as the loss ofa limb, sustained by a minor. The judgment awards Rs. 3,000 asdamages, but by error the decree orders payment of Rs. 5,000 asdamages. Rs. 5,000 is paid by the defendant, and is received in goodfaith by the guardian, who expends it for the medical treatment andeducation of the minor. The error is noticed after three years whenthe minor has still not attained majority. Will it be expedient orequitable for the Court now to amend the decree, with the consequencethat the minor will become a debtor in a sum of Rs. 2,000 1
In a partition action, to w'hich only two co-owners having equalshares are parties, the judgment allots Lot A to the Plaintiff and Lot Bto the Defendant. But by error, the decree allots Lot B to the Plain-tiff, and vice versa. Lot B, wrhich has on it a house which is subjectto Rent Control, is advertised To Let, and a prospective tenant isadvised by his lawyer, on the faith of the decree as registered, to takeLot B on rent. If the error in the decree is noticed two years later,is the Court to make an amendment of the decree, with the consequencethat the tenant becomes a trespasser on Lot B ? (I must add thatthere has been at least one error of the exact nature mentioned inthe first part of this paragraph. It was corrected in Revision in anApplication which I myself decided, but unfortunately I am not ableto cite the reference to the Application.)
A claims a right of cart-w'ay by necessity over B’s land on aroute marked X-X1 shown in a Plan PI filed with the plaint. Banswers that a different route, marked Y-Y1 on a fresh plan, is moreconvenient and less injurious to his land. The judgment upholdsB’s contention, but the decree by error declares A entitled to a cart-way“ over the route X-X1 as shown in the Plaintiff’s Plan PI Thedecree is duly registered, and A commences to use the route X-X1.Soon thereafter, B sella his land to C, who erects a building on the land,
3G4H. N. G. FERNANDO, C.J.—Navaratnam v. Siriicardena
part of which building covers the route Y—Y1. If A subsequently
discovers the error in the decree, is the Court bound at A’s instance to
amend the decree and thus compel C to demolish his building ?
Having regard to general considerations of equity and expediency,I am satisfied that the power conferred by s. 189 of the Code is purelydiscretionary, and that a Court is not bound to correct every error whichmight occur in its decrees. I must note also that in the present casewe are concerned only with the third limb of s. 189, namely, the correctionof a decree in order to bring it into conformity with the judgment.Consideration of relevant provisions of the Partition Act leads me to theconclusion that, in the case of Partition Decrees, the discretion toamend must be exercised with special caution.
Sections 6 to 8 of the Act impose on the Court the duty to cause thelis 'pendens of a partition action to be registered, and s. 9 requires adeclaration from a proctor certifying to his inspection of the appropriateregisters and containing a statement of the names of all persons found onsuch inspection to have interests or claims affecting the land. It isonly after these requirements are observed that the Court can order theissue of summons. In this way the Legislature has done all that ispossible to ensure that a partition action will not proceed to trial unlessall persons having interests in the land have notice of it through theCourt.
At this stage s. 67 comes into operation. By virtue of that section,the registration of the lis pendens becomes a warning to third partiesthat the law prohibits any dealings in the land prior to the finaldetermination of the Partition action. Even dealings in the interests tobe ultimately allotted in the Partition decree take effect only when thedecree is entered (Karunaratne v. Pererax). But once the decree isentered, all these restrictions cease to operate, and it is significant thatthey so cease in consequence of an act of the Court. For again, s. 51requires the Court to transmit a copy of the decree for registration.Where, as in the present case, the final decree is thus registered at theinstance of the Court, the public has notice through the register of thetermination of the action and of the interests allotted in a decree havingthe final and conclusive effect specified in s. 48.
The only qualifications of this final and conclusive effect of the decreeare those specified in sub-section (3) of s. 48, namely that the Courthad no jurisdiction and that the action had not been duly registered asa lis pendens. Hence a notary who examines title flowing from a partitiondecree wall have a duty to investigate these two matters, both of whichshould involve only a consideration of matters recorded in the registers.But I do not agree that a notary (except ex abundanti cautela) need inspectthe record of a partition action to search for defects in procedure, if any;for s. 48 does not provide that any such defects can qualify the final andconclusive effect conferred on a decree.
1 (1965) 67 N. L. R. 529.
H. N. Q. FERNANDO, C.J.—Navaralrutm v. Siriwardena
365
It cannot be denied that the power conferred by s. 189 of the Code toamend a decree conflicts with the provision in s. 48 of the Partition Actwhich renders a partition decree final and conclusive. Where such aconflict exists and it cannot be resolved otherwise, then the principlethat the later statute prevails over the earlier must apply. But it isnot necessary to go so far as to hold that s. 189 will not apply in the caseof partition decrees. The language of Lord Watson, which I havealready cited, propounds a test which will enable a Court to have regardto s. 48 in deciding whether or not to exercise its powers under s. 189 in thecase of a partition decree. By causing a partition decree to be registered,a Court in my opinion “ holds out ” to the public that the decreehas been entered and that it has the final and conclusive effect providedin s. 48. And if, on the faith of the registration of such a decree, a thirdparty acquires an interest in a land or share allotted by the decree, thenit will not be expedient or equitable to amend the decree in such manneras will deprive the third party of that interest.
In my opinion, therefore, the powers conferred by s. 189 cannot beexercised to amend a partition decree unless the Court first ascertainswhether or not interests allotted by the decree have been acquired bythird parties under duly registered instruments. If interests have beenso acquired, the question whether an amendment of the decree isexpedient and equitable will obviously arise for consideration by theCourt, and it seems to me that ordinarily a Court will not in such a caseallow an amendment which will defeat such interests.
The learned District Judge who tried the present case reached a findingof fact that the 3rd defendant purchased the land which is the subjectof this case with knowledge that there had been a prior mortgage to thepresent plaintiff, and that the mortgage was not specified in the earlierpartition decree through an omission on the part of the judge who enteredthat decree. It is not now necessary for me to state any agreement ordisagreement with this finding, because in my opinion such a finding wasnot relevant to the decision of the present case. If the matter of theknowledge, or else of the ignorance, of the 3rd defendant concerning theerror or omission in the partition decree was relevant at all, it was amatter which should have been decided by the Judge who entertainedthe application to amend the partition decree. The illegality which Ihold took place, namely, that that Judge amended the decree withouttaking proper and simple steps to ascertain whether the amendmentwould be expedient and equitable, cannot in my opinion be cured by afinding as to knowledge reached many years later by a different Judgein a different action.
My brother Tambiah’s observations in this case include the followingstatement concerning the provisions of ss. 26 and 48 of the PartitionAct:—
“ It is only a decree which is contemplated by s. 26 of the Partition
Act which is given the final and conclusive effect under s. 48 of the Act.
It is not any type of decree which does not reflect the findings of the
1 •*H 13548 (5/68)
."Ifi6H. N. G. FERNANDO, C.J.—Navaralnam v. Siriwardena
Judge which is given the final and conclusive effect. When a peremp-tory duty is cast on the Court, to enter a decree which is in accordancewith the findings of the Judge, it will be a monstrous proposition tostate that when a Judge does not follow the peremptory provisionsof the law and enters any type of decree, final and conclusive effectis given to such a decree.”
With much respect, my own opinion does not substantially differ fromthat expressed by my brother. I seek only to qualify his statement byintroducing the two words “ without exception ” after the word “ given ”in the last line of that statement. Section 189 of the Code provides forwhat I trust is the exceptional situation in which a Judge signs a decreewhich is not in accordance with the findings in his judgment. And Ido agree that if such an exceptional situation does arise in a partitionaction, s. 189 can be utilised by the Court to correct its own error. At thesame time, although I have just referred to the Court’s “ own error ”,the parties to an action must take the blame at least equally with theCourt for such errors, and particularly for that which occurred in this case,namely, that the decree did not specify the mortgage in favour of the presentplaintiff. I must decline to be blind to the inveterate practice of ourCourts, whereby in fact decrees are prepared by parties, and not by theCourt. Having regard to that practice, the present plaintiff’s proctor wasvery much to blame for his neglect to ensure that the decree which was sub-mitted for signature in the Partition action did not specify her mortgage,and for the consequence that a defective decree was subsequently regis-tered at the instance of the Court. That neglect on the proctor’s partwas in the circumstances the prime cause of the Court’s error, and weunfortunately are not unfamiliar with situations in Avhich clients haveto suffer for the neglect on the part of their proctors. If in such circum-stances, the Court signs an erroneous decree and causes it to be registered,and if a third party acquires rights on the faith of the decree as registered,it is not in my opinion “ monstrous ” for the Court to decline to exerciseits powers under s. 189 of the Code. On the contrary, it seems to mequite clearly “ monstrous ” that a Court should be bound by s. 189(which I repeat is an empowering and not a compelling provision) toamend errors in decrees which have misled third parties into transactionssuch as those I have envisaged in the examples lettered (c) and (d) inan earlier part of this judgment. In the case of a partition decree, thereis the additional consideration that third parties may act on the faithof a decree required by law to be registered at the instance of the Court. I
I must lastly express my fear that the majority decision in this appealmight be relied on in future even in situations different from that Avhicharise in the present case. The decision, it seems to me, has been muchinfluenced by the opinion that the third defendant’s proctor should havelooked into the record of the earlier partition action, and that such asearch by him would have revealed the error in the decree. But thequestion whether a decree is in conformity with a judgment of a Judge
TAMBIAH, J.—Navaratnam v. Siriwardena
367
may not always be readily capable of solution ; a notary applying reason-able skiU and judgment may advise his client that a proper decree hasbeen entered, and the client may yet have to suffer if another Judge issatisfied, after having the advantage of learned debate, that there hasbeen some lack of conformity between the judgment and the decree.Furthermore, a decision that there is a duty to compare a partition decreewith the judgment can well be relied on for the contention that thereis a duty also to examine various other matters, including the correctnessof the record of the action. I myself doubt very much whether theLegislature contemplated that such considerations can afford grounds fordenying to partition decrees the final and conclusive effect so clearlyconferred on such decrees by s. 48 of the Partition Act.
For these reasons I would hold that the partition decree was notlawfully amended and that the amendment was null and void. In theresult I would allow this appeal and dismiss, with costs in both Courts,the plaintiff’s action for a hypothecary decree in respect of the land ofthe third defendant.
Tambiah, J.—
I agree with the reasons set out by my brother Siva Supramaniam, J.it is common ground that the unamended decree did not preserve themortgage and is not in accordance with the judgment of the learnedDistrict Judge who decided the case. Counsel for the appellant con-tended that once the interlocutory decree is entered, although it may notbe in accordance with the findings of the Judge, when it is followed upby the final decree, both the decrees are final and conclusive in view ofthe provisions of section 48 of the Partition Act. He further urged thatalthough a Judge is given the power to amend an interlocutory decree,once the final decree is entered and the decree is sent up for registrationby the Judge under the provisions of the Partition Act (Cap. 69) and isregistered, he has no more power to amend the decrees however erroneousthey may be. There is nothing in the Partition Act (Cap. 69) to supportthe propositions advanced by the learned Counsel for the appellant.No where in this Act is it stated that once the decree is registered theCourt has no power to amend a decree which is not in conformity with thejudgment.
Section 189 of the Civil Procedure Code (Cap. 101), in its unamendedform, empowers a judge to correct clerical or arithmetical errors in enteringup a decree. But later by Ordinance 36 of 1936, the Court was alsoempowered to correct any accidental slip or omission in the decree so asto bring it into conformity with the judgment. The powers conferredon a court by section 189 of the Civil Procedure Code to bring the decreeinto conformity with the judgment are co-extensive with the powersvested in the English Courts by virtue of Order 28 Rule 11 of the Rules ofthe Supreme Court to correct decrees. Commenting on the English
368
TAMBIAH, J.—Navaratnam v. & inward ena
provisions Lord Watson said : (vide HcUlon v. Harris x) : “ When an errorof that kind has been committed, it is always within the competency ofthe Court, if nothing has intervened which renders it inexpedient orinequitable to do so, to correct the record in order to bring it into harmonywith the order which the judge obviously meant to pronounce.” Underour procedure, the court could correct any decree to bring it into con-formity with the judgment at any time, subject to the limitations set outin the dictum of Lord Watson (vide Thambipillai v. Muttukumaraswamy 2).
The Partition Act (Cap. 69) has a specific provision governing inter-locutory decrees. It enacts : “ At the conclusion of the trial of a partitionaction, or on such later date as the court may fix, the court shall pro-nounce the judgment in open court and the judgment shall be dated andsigned by the Judge at the time of pronouncing it. As soon as may beafter the judgment is pronounced, the court shall enter an interlocutorydecree in accordance with the findings in the judgment, and such decreeshall be signed by the Judge.” (vide section 26 (1) of Cap. 69) Aperemptory duty is cast on the Court to enter only a decree which is inaccordance with the findings in the judgment. It will be illegal for a Judgeto enter any other type of decree. It is only a decree which is contem-plated by section 26 of the Partition Act which is given the final andconclusive effect under section 48 of the Act. It is not any type of decreewhich does not reflect the findings of the Judge which is given the finaland conclusive effect. When a peremptory duty is cast on the Court,to enter a decree which is in accordance with the findings of the Judge,it will be a monstrous proposition to state that when a Judge does notfollow the peremptory provisions of the law and enters any type of decree,final and conclusive effect is given to such a decree.
In this case the learned District Judge made order in his judgmentstating that the decree will be entered accordingly. By that he meant,in accordance with the evidence which showed that the mortgage ispreserved. It will he a travesty of justice if the plaintiff is denied theright to bring this action on the mortgage bond because the Judge, onwhom the duty is cast by law, has failed to follow^ the provisions of section26 of the Partition Act. In view' of the far-reaching effect of section 48of the Partition Act which gives finality to a decree entered under section26, it became necessary for the Legislature to limit the finality andconclusive effect only to decrees which are entered in accordance withthe findings of the judgment as set out in section 26 of the Act.
Mr. Thiagalingam urged that once a court sends a decree for registration,even though the decree may not be in accordance with the judgment,title to property will be affected if wre adopt any other construction,since a bona fide purchaser may buy on the strength of the decree whichis registered. It is not possible for any injustice to be done to a bona fidepurchaser who is diligent. A proctor or notary employed by him should
{1955) 57 N. /,. R 97
1 (1892) A. C. 547 at 500.
2
SIVA SUPR AMANI AM, J.—NavarcUnam v. Siriwardena
369
not only see that the decree is registered but also that the decree is inaccordance with the findings of the Judge. If a decree is not inaccordance with the findings of a Judge, he cannot pass title. Thereforeno bona fide purchaser would in any way be affected. But if hebuys without diligence a property on an erroneous decree, then the rulecaveat emptor applies.
In view of section 79 of the Partition Act (Cap. 69), the provisions ofsection 189 of the Civil Procedure Code would apply empowering acourt to amend a decree in order to bring it into conformity with thejudgment.
After careful consideration of the evidence led in this case, I find noreason to interfere with the findings of facts in this case. The learnedDistrict Judge has held that no consideration has been paid on deedP3 by which the property was transferred to the second defendant.Sitting in appeal it is not possible for me to differ from this judgment.Therefore in this case, the second defendant is not a bona fide purchaser.
Finally, Mr. Thiagalingam submitted that a decree which is not inaccordance with a judgment, yet is final and conclusive in view of theprovisions of section 48 of the Partition Act which confers finality onsuch decrees despite errors or defects in procedure. He urged thatentering of a decree which is not in accordance with the judgment is anerror in procedure and therefore despite such errors finality is given tothe decree by section 48 of the Act. But as stated earlier, it is only adecree which is contemplated by section 26 of the Act which is givenfinality by section 48 despite omissions and errors in procedure or defectin proof of title. Such finality does not apply to decrees Avhich are enteredby Judges, not in accordance with the peremptory mandatory provisionsof section 26 of the Act which enjoins the Judge only to enter a decreein accordance with the judgment.
For these reasons I affirm the judgment of the learned District Judgeand dismiss the appeal with costs.
Siva Supramaniam, J.—
This appeal raises an important question in regard to the effect of anerroneous decree entered under s. 26 of the Partition Act, No. 16 of 1951,(Cap. 69) (hereinafter referred to as the Act) and the powers of a Court toamend such a decree.
The plaintiff instituted this action to enforce her rights on a mortgagebond No. 1372 dated 30th November (PI) granted by one LewishamyWeeramantri in her favour. One of the properties mortgaged was anundivided one-half share of a land called Haggemuwakele, describedas item 2 in the 1st schedule to the plaint. The mortgagor is now deadand the 1st defendant is the legal representative of his estate. Afterexecuting the mortgage bond PI Lewishamy Weeramantri, by deed
370SIVA SUPRAMANIAM, J.—Navaratnam v. Siriwardena
No. 1374 dated the same day (P3), transferred his half share of the saidland subject to the said mortgage to Dissanayake, the 2nd defendant.In April 1955 one Podinona who was entitled to the remaining half shareinstituted a Partition action (No. 4417 D. C. Anuradhapura) to partitionthe said land. Dissanayake and the plaintiff (the mortgagee ofDissanayake’s share) were made parties-defendants. The action wasnot contested by the defendants. Podinona gave evidence setting outthe title of herself and Dissanayake to the land and concluded herevidence as follows :—
“ The parties are each entitled to the land in the following shares :—Plaintiff to an undivided half share, the 1st defendant to an undividedhalf share. I have made the 2nd defendant a party inasmuch as sheis the mortgagee under deed No. 1372 of 30.11.54 attested by C. B.Kumarakulasinghe and I produce it marked P20. The 1st defendant’sinterests are also subject to an agreement to transfer liis J share to the2nd defendant as allotted after the final decree of this partition action.I produce deed No. 133 of30.11.54 attested by C. B. Kumarakulasinghe
marked P21 I pray that the land described in the schedule be
partitioned in terms of the provisions of the Partition Act, No. 16 of1951, that I be declared entitled to a divided specific lot in lieu ofmy undivided | share in the said land and that the 1st defendant bedeclared entitled similarly to a specified divided lot subject to themortgage and agreement mentioned above in P20 and P21respectively, that I be placed in possession of the divided lot awardedto me and for costs pro rata.”
At the conclusion of the aforesaid evidence, the trial Judge made orderas follows :—
“ Enter interlocutory decree for partition accordingly.”
He did not write a judgment setting out, inter alia, the points fordetermination and the decision thereon as required by s. 187 of theCivil Procedure Code.
It was common ground, however, between the parties at the hearingof this appeal that the aforesaid Order made by the trial Judge should beinterpreted to mean that he accepted the testimony of the witness Podi-nona, that his findings were in accordance with that testimony and thathis judgment was that interlocutory decree for partition should be enteredin accordance with those findings. The findings therefore includedthat the share of the 1st defendant was subject to a mortgage in favourof the 2nd defendant (the plaintiff in the instant case) under bondNo. 1332 of 30.11.54 (PI).
Interlocutory decree for partition (3D5) was entered on 11th October1956. Final decree for partition (3D6) was entered on 11th September1958 in terms of which the divided allotments described in the scheduleto the plaint in the instant case were allotted to Dissanayake in lieu of
SIVA SUPRAMANIAM, J.—NaoarcUnam v. Siriwardena
371
his undivided interests in the said land. There was, however, no reser-vation of the rights of the 2nd defendant (the plaintiff in the instant case)on mortgage bond PI in either the interlocutory decree or the finaldecree. Both decrees were sent to the Registrar of Lands for registrationin terms of s. 51 of the Act and were duly registered in January 1957and February 1959 respectively. On 24 th June 1960 by deed No.1867 (3D11) Dissanayake transferred to the 3rd defendant the dividedallotments to which he had become entitled upon the final decree3D6. The transfer was declared by the vendor to be free from anyencumbrance.
Thereafter, on 10.10.1960 the Proctor for the plaintiff in the partitionaction, with the consent of the Proctor for the defendants, moved theCourt to amend the interlocutory and final decrees that had been enteredto bring them into conformity with the judgment of the Court by settingout that the 1st defendant’s share of the land was subject to a mortgagein favour of the 2nd defendant and also to an agreement to sell the dividedshare to the 2nd defendant. The motion was allowed by the DistrictJudge. In accordance with the said Order an amended interlocutorydecree (P6) was entered on 14.10.1960, in terms of which the undividedshare of Dissanayake was declared to be subject , inter alia, to the mortgagein favour of the present plaintiff on bond PI. An amended final decree(P7) was also entered on the same date in terms of which the dividedblocks allotted to Dissanayake in lieu of his undivided share weredeclared to be subject to the same mortgage.
The principal question that arises for determination in this case iswhether the divided allotments transferred to the 3rd defendant by the2nd defendant under deed 3D11 on 24.6.1960 are subject to the rightsof the plaintiff under mortgage bond PI. The answer to this questiondepends on whether the interlocutory decree 3D5 and the final decree3D6 that were originally entered had the final and conclusive effectunder s. 48 (1) of the Act and, if so, whether the Court had the power toeffect the amendments made subsequently.
S. 48 of the Act (omitting parts not relevant for the point underconsideration) provides as follows :—
“(1) …. the interlocutory decree entered under s. 26 and the
final decree of partit ion entered under s. 36 shall, subject to the decisionon any appeal which may be preferred therefrom, be good and sufficientevidence of the title of any person as to any right, share or interestawarded therein to him and be final and conclusive for all purposesagainst all persons whomsoever, whatever right, title or interest theyhave or claim to have to or in the land to which such decrees relateand notwithstanding any omission or defect of procedure or in theproof of title adduced before the court or the fact that all persons
SIVA SUPRAMANIAM, J.—NavarcUnam v. Siriwardena
.172
concerned are not parties to the partition action ; and the right,share or interest awarded by any such decree shall be free from allencumbrances whatsoever other than those specified in that decree.
The interlocutory decree and the final decree of partition enteredin a partition action shall have the final and conclusive effect declaredby subsection (1) of this section notwithstanding the provisions ofsection 44 of the Evidence Ordinance and accordingly such provisionsshall not apply to such decrees.
”
It w’as argued that since s. 48 (1) does not limit the final and conclusiveeffect to interlocutory decrees “ duly ” entered under s. 26, even an erro-neous interlocutory decree that had been signed by the Judge is a “ decreeentered under s. 26 ” and should be final and conclusive under s. 48.The argument of counsel was somewhat as follows :—A court has juris-diction to sign a right decree or a wrong decree. A wrong decree isnevertheless a decree. The provisions of s. 26 of the Act are similar tothose contained in s. 188 of the Civil Procedure Code but in less stringentterms, since the latter requires that the decree should specify “ in precisewords the order which is made by the judgment ”. But s. 189 recogniseswhat is signed by the Judge under s. 188 as “ a decree ” even if it doesnot correctly specify the order made by the judgment, since it providesthat a Judge ” may make any amendment which is necessary to bring adeciee into conformity with the judgment”. Similarly, a decree enteredin pursuance of the provisions of s. 26 of the Act, whether it is in accord-ance with the findings in the judgment or not, is nevertheless a decreeentered under s. 26 of the Act ” and should, therefore, have the finaland conclusive effect under s. 48 (1).
The whole argument, in my view, is based on a fallacy that a court isentitled to enter a wrong decree. It is undoubtedly correct that inmatters where a court has to make a decision, it may decide wrong aswell as right and until and unless the decision is reversed by a superiorcourt it is valid and binding, however wrong it may be. This principle,however, does not mean that a Judge has jurisdiction to act in contra-vention of the express terms of a statute. In regard to decrees, boths. 188 of the Civil Procedure Code and s. 26 of the Act give a mandatorydirection to a Judge to sign a decree which is in accordance with thejudgment. I am unable to agree that a Judge has jurisdiction to signa decree in contravention of that direction or that a ce decree ” so signedis an effective decree. The fact that an erroneous decree signed by theJudge under s. 188 is referred to as “ a decree ” in s. 189 does not meanthat it is enforceable as a valid decree until it is brought into conformitywith the judgment.
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Counsel also sought to derive support for his argument from thejudgment of this court in Rasah v. Thambipittai 1 in which it was heldthat where an interlocutory decree had been entered in terms of a. 26of the Act, a person is not entitled to avail himself of the provisions ofs. 48 (3) in order to intervene subsequently and have the decree set asideon the ground of failure to register the action duly as a lis pendensunder the Registration of Documents Ordinance. Special emphasis waslaid by him on the following passage in the judgment of Sansoni C.J. atpage 147:—
“ Finally, Mr. Ranganathan who laid stress on the word “ under ”argued that an interlocutory decree entered under s. 26 and a finaldecree entered under s. 36 can only mean decrees which are regularin the sense that they have been entered after all the requirementsof the Act have been obeyed, and that they are valid not merely inform but in substance. This argument cannot be sustained in view ofthe very terms of s. 48 (1) which contemplate decrees entered despiteomissions or defects of procedure or inadequate proof of title, or non-joinder of parties who had an interest in the land. For the same reasonI would hold that registration of an action as a lis pendens under theRegistration of Documents Ordinance (as required by S. 13 (1) ) doesnot mean registration in accordance with all the provisions of theOrdinance, since due registration is not required by section 13 (1).”
An examination of the above passage makes it clear that the pointthat arose for decision in that case is widely different from the one underconsideration in this case. A defect in the registration of the actionas a lis pendens will fall within the category of “ an omission or defectof procedure ” which, subject to the provisions of s. 48 (3), does notaffect the final and conclusive nature of the decree. The case where adecree is not in conformity with the judgment is, however, not includedin the section among the circumstances notwithstanding which the decreewill be final and conclusive. A defect so fundamental cannot beregarded as falling within the description of “ any omission or defect ofprocedure ”.
S. 26 which relates to the entering of an interlocutory decree providesas follows :—
” At the conclusion of the trial of a partition action, or on such laterdate as the court may fix, the court shall pronounce judgment inopen court, and the judgment shall be dated and signed by the Judgeat the time of pronouncing it. As soon as may be after the judgmentis pronounced, the court shall enter an interlocutory decreein accordance with the findings in the judgment, and such decree shallbe signed by the Judge.” 1
1 (1965) 68 N. L. R. 145.
374SIVA SUPRAMANIAM, J.—Navaratnam v. Siriwardena
It will be seen that under this section the Court is directed to enter adecree which is in accordance with the findings in the judgment and itis only “ such decree ” that shall be signed by the Judge.
There can be no question but that it was the intention of the Legis-lature that an adjudication made by the court under the Act should,subject to any decision on appeal, be final and conclusive despite anydefect in procedure. A decree is “ the formal expression of an adjudi-cation ”—s. 5 of the Civil Procedure Code. Can it be said that it wasthe intention of the Legislature that “ the formal expression of theadjudication” should be “ final and conclusive for all purposes against allpersons whomsoever ” even though it erroneously sets out the terms of theadjudication ? The answer is to be found in s. 26 which, as stated earlier,directs that the decree which shall be signed by the Judge ” shall be“ in accordance with the findings in the judgment ”. A judge is notempowered to sign any other decree.
“ The interlocutory decree entered under s. 26 ” referred to in s. 48 (1)should therefore be “ such decree ” as is required to be signed by theJudge under that section, namely, a decree which is in accordance withthe findings in the judgment. I am of opinion, therefore, that a decreepurported to be entered under s. 26 which is not in accordance with thefindings in the judgment is not an interlocutory decree which has a finaland conclusive effect under s. 48 (1).
If the interlocutory decree was not such a decree as the Judge wasempowered to sign under s. 26, the final decree for partition entered inpursuance of that decree wras also not a valid “ final decree under s. 36 ”which had the final and conclusive effect under s. 48.
It was, however, urged that the Legislature passed the Act in view ofthe fact that the indefeasibility of the title under a final decree enteredunder s. 9 of the Partition Ordinance, No. 10 of 1863, “ had tended to beeaten away ” by reason of the decisions of this Court that the final decreewas final and conclusive only when the decree was entered in proceedingswhich strictly complied with the essential and imperative provisions ofthat Ordinance and consequently the whole scheme of the new Actwas designed to ensure finality to a decree entered thereunder. It wasalso urged that when a Court caused the interlocutory and final decreesto be registered in terms of s. 51 of the Act as instruments affecting theland, the Court itself held out to the world that the title under the decreeswas good and indefeasible and that any interpretation of s. 48 whichwould affect the conclusiveness of the title would seriously jeopardiseland tenure in this country and would cause undue hardship to innocentthird parties who may purchase a land relying on the validity of the titleas set out in the registered decrees.
I do not consider the above arguments to be sound. The final andconclusive effect given to a decree under s. 48 (1) is not absolute ; it issubject to the provisions contained in sub-section (1). Under thissub-section, decrees entered by a court without competent jurisdiction
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or in an action which had not been duly registered as a lis 'pendens donot have a final and conclusive effect under s. 48 (1) as against a personwho claims on an independent title and who had not been made a partyto the action. An innocent purchaser cannot therefore blindly rely onthe validity of the title under a registered decree. Although it isunnecessary that he should satisfy himself that all the provisions of thestatute had been complied w ith as in the case of a decree entered underOrdinance No. 10 of 1863, he has still to satisfy himself that the titleis not liable to attack by a person to whom s. 48 (3) applies. It cannot,therefore, be a hardship if he has also to satisfy himself that the registereddecree is in conformity w ith the judgment before he can rely on the validityof the title.
In any event, if it was the intention of the Legislature that evenerroneous decrees entered under s. 26 of the Act should be final andconclusive for the benefit of innocent purchasers, it should have madeexpress provision to that effect.
The next question that arises for consideration is whether the Courthad the power to amend an erroneous decree entered under s. 26 so asto attract the conclusive effect under s. 48. Although there is no specificprovision in the Act corresponding to s. 189 of the Civil Procedure Code,it was conceded in the course of the argument that in view of theprovisions of s. 79 of the Act, s. 189 of the Civil Procedure Code will beapplicable to proceedings under the Act, provided the application of thatsection will not be inconsistent with the provisions of the Act. In viewof the conclusion I have reached that an interlocutory decree which is notin accordance with the findings in the judgment is not an effective decreeunder s. 26 which has the final and conclusive character under s. 48,I am of opinion that it is not inconsistent with the provisions of the Actfor the Court, acting under s. 189 of the Civil Procedure Code, to amendthe interlocutory decree to bring it into conformity with the judgment.Since such an amendment will relate back to the date of the judgment,the Court has the power to make the corresponding amendment in thefinal decree under s. 36 as well. In the instant case, therefore, theamended decrees P6 and P7 are respectively the decrees under s. 26 ands. 36 which are final and conclusive under s. 48.
For the aforesaid reasons I am of opinion that the lands purchased bythe 3rd defendant on deed No. 1867 dated 24th June 1960 (3D11) weresubject to the mortgage in favour of the plaintiff on bond No. 1372 of30.11.1954 (PI) and the plaintiff is entitled to a hypothecary decree inthis case.
In view of the above conclusion, it is irrelevant to consider whether the3rd defendant paid the full purchase price mentioned on deed 3D11 tothe 2nd defendant or whether she was aware of the mortgage in favour
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Siriniyal v. The Queen
of the plaintiff at the time of her purchase. I would state, however,that the evidence on record is quite insufficient to support the findingof the trial Judge that the transaction embodied in the deed of purchase3D11 was fraudulent and collusive.
I dismiss the appeal with costs.
Appeal dismissed.