MUTTU RAMAN CHETTY et al. v. MOHAMMADU et al

025-NLR-NLR-V-22-MUTTU-RAMAN-CHETTY-et-al.-v.-MOHAMMADU-et-al.pdf


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Present: De Sampayo J. and Schneider A.J.
1M&
MUTTU BAMAN CHETTY et oi. v. MOHAMMADE et al.
144—£). 0. Knrunegala, 1,998.
Subsequent order—Civil Procedure Code, s. 337—Amendment of decree—Mortgage decree is decree for payment of money.
The “ subsequent order" contemplated in section 337 (6) of theCivil Procedure Code is one which may be made’ under the provi-sions of sections 320, 322, 33d, and 335 of the Code for the recovery*»y execution of a sum of money as damages in default of compliancewith the substantial decree either to deliver movable property or to do orabstain from doing some specified act.
A Court has no jurisdiction to amend or alter its decree, except inconformity with section 189, Civil Procedure Code.
A mortgage decree is a decree for the payment of money withinthe meaning of section 337, Civil Procedure Code.
rjiHE facts appear from the judgment.
A. Drieberg, for defendants, appellants.
Samarawickreme, for plaintiffs, respondents.
Cur. adv. vult.
March 17, 1919. Schnbidbb A.J.—
In this case, on December 15, 1902, a mortgage decree was enteredin favour of the plaintiffs. The decree directed that the defendantsshould jointly and severally pay a sum of money, and in default ofsuch payment that the mortgaged property should be sold by theFiscal in satisfaction of the decree, and if the proceeds of such saleshould be insufficient, that the balance was to be recovered byexecution levied upon ,any other property of the defendants; – This 'is the usual form of decree, except, perhaps, for the direction thatthe sale was to be held by the Fiscal. Apparently no steps weretaken under the decree till January, 1911, at which date mostof the original parties were dead. Application on behalf of theplaintiffs was then made by petition for substitution of parties inplace of those deceased. Inter alia, the applicants prayed that thesecond defendant should be substituted as the legal representativeof the deceased first defendant, alleging that he was the brotherand heir of the deceased, whose share of the property mortgagedwas below Bs. 1,000 in value, and that he was in possession of theproperty of the deceased. They also prayed that execution shouldissue against the second defendant personally, and also as such legal
1920.
Suppxahv, CroQ8
( «* )bring a fresh action. To permit the plaintiff to join a puisne incum-branoersat this'stage would, bo to help him to defeat the object of'that decision. If plaintiff was negligent and did not register hisaddress he must suffer for it. Section 18 contemplates the addingof parties before judgment. It allows the plaintiff or defendant toapply on or before the hearing “ to add a party ”; but it says thatthe Court may “ at any time ” order any party to be added. Thismeahs before final judgment. The words “ at any time 99 occur inother sections of the Code, and contemplate a period of time beforethe decree. The interpretation suggested by the appellant’s counselis contrary to the whole spirit of the Code.' If this application iaallowed, fresh pleadings would have to be filed, the decree should bevaoated, and a new trial ordered. There is no provision in the Codewhich* permits a decree to be amended or vacated under thesecircumstances. A decree could be amended under section 189on the ground of any clerical or arithmetical error. On no otherground can this be done. (Perera v. Ekanaike,1 Bamasamy Pulle v. DeSilva,2 Silva v. Silva 2 Silva v. Silva.*) Sections 18 and 1£9 should beread together. It will serve no purpose if a party is aefted, unlessa new decree is entered so as to bind him. If applications of thiskind are allowed there will be no finality to litigation. Counselalso cited Oxley v. Link2 Suppramanian Chetty v. Fernando,e andDeonis v. SamarasingheP
A. St. V. Jayawardene, in reply.
July 14,1920. Bertram C.J.—
This is an attempt to avoid the inconveniences that are said toresult from'the decision of the Full Bench of this Court in Suppra-maniam Chetty v. Weerexekera* The plaintiff in a mortgage actiondiscovered, subsequently to the decree, the existence of a puisneincumbrancer in the shape of a' donee of the property mortgaged.As a result of the decision to which I have referred, it is now impos-sible for him to bring a further action against this donee. He,therefore, seeks by an application to Court to be allowed to jointhis puisne incumbrancer as a party after judgment, and he claimsto be entitled to do this under section 18 of the Ciiil Procedure Code.
Mr. Jayawardene appeals to our sympathy in the matter. Hecontends that we have a discretion, and urges us to exercise it on; behalf of his client. It is unnecessary for us to discuss whether ornot the circumstances of the <£ase appeal to our sympathy for thepurpose of the exercise of a judicial discretion, because on a veryoareful consideration of the law we have come to the conclusionthat we have no power to accede to the application in any event.
(1897) 3 N. L. B. 21.*(1999) 12 N. £:*B. 298.
(2910) 13 N. L. B. 87.*(1912) 16 N. L. B. 146.
5 {1914) 2 K. B. 734 C. A.
(1917) 4 C. W. B. 33. •
7 (1911) 25 N. L. B. 39.
(1918) 20 N. L. B. 170.
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Section 18 is very closely modelled upon a role of the Englishpractioe—order XVI, rule 11—and the various English decisions to.which Mr. Jayawardene has drawn our attention, will be found onexamination not to support his case. Campbell v. Holyland1 will,he found to turn upon a special equitable principle which, underthe English law, is applicable to foreclosure decrees, and whichpermits them to be re-opened if the circumstances justify it for the .purpose of allowing redemption. Another case which Mr. Jaya-wardene strongly pressed upon us, Keith v. Butcher? is dearly. based upon the circumstance that, though the judgment in thatcase had been delivered, it had not been drawn up and entered.That was the plea raised in the argument, and to that plea theCourt mustjiave assented, as appears by the reference to that case,in a subsequent case, namely, The Duke of Buedeuch? to which Iwill presently refer. There is a further case, namely, Attorney-General v. Corporation of Birmingham,4 in which a very eminentEnglish Judge, Jessel in commenting on this rule, says: “ Itwas never intended to allow an amendment of the pleadings tointroduce fresh parties after final judgment,’9 and again, “ a state-ment of claim or bill cannot be amended after final judgment.”There is, finally, the case of The Duke of Buccleuch,3 where an amend-ment introducing'a party was allowed after the decree filing liabilityin a collision casq but before the case had been remitted to the.-merchants for the estimation of the damages. That case will befound to have turned very largely upon the special procedure of theAdmiralty Division in datters of that kind. In any case, the Courtof Appeal Judges based their, judgment upon the fact that therewas something still to be done in the case. Lord Esher M.P. said ;“The decree fixing the liability in the Admiralty Court is not a finaljudgment. The proceedings are not over,” and Fry L.J. observed,
“ It has been argued that the rules do not apply after final judgment.They apply, in my opinion, as long as anything remains to be donein the case. In this case there remains the assessment of damages.33
It would appear, therefore, that the English cases are againstMr. Jayawardene. But he seeks to distinguish them by reason ofthe fact that the terms of our section are broader than those of theEnglish rule, and that under our section, which follows the corre-sponding Indian section, it is declared that the Court may “at anytime ” make the order asked for, whereas under the English rulethe words are “ at any stage of the proceedings.3’ Mr. Jayawardenestrongly pressed upon us that these words give us an unlimiteddiscretion, and he cited an. Indian case in which there is a dictumto the effect that section 32, which is the corresponding Indiansection, may very well give a discretionary power to the Court toadd a party at any stage of the suit, even after judgment and before 1
1 (1877) 7 Oh. Z>. 166.3 (1892) Probate Dl 201.
* (1884) 26 Ch; J>. 760,4 (1*80) 16 Ch, D. 426,
1980. '■Bertbam
aj.
Suppiahv. Crooe
1920.
Bebtbam
O.J.
Suppiah
V. OT008
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final execution. I do not feel able, even if I wished it, to give tothe words relied upon the full interpretation that Mr. Jayawardenecontends for.
It appears to me that these words have to be read with the^othersections of the Code. If the Court makes an order under section 18,it would follow that under section 21 it would have to direct thatthe plaint should be amended, unless special direction was otherwisegiven. This might involve an, amendment of the answer, and itappears from section 93 that amendments of the pleadings can onlybe made.after final judgment. It might no doubt be possible toavoid this'difficulty with regard to the plaint by alleging that section21 expressly authorizes an amendment of the plaint. But thatcannot authorize any possible consequential amendment of theanfr^er.^. Further, not only would an amendment of the plaint be-necessary, but there would further be required an amendment ofthe. decree, and Mr. Croos-Dabrera has very forcibly pointedout, by areference to the terms of the Code ah*d the various decisions of ourCourt, that the only method of altering a decree which our CoderebOgnize's is the method prescribed by section 189. In the circum-stances, I-have-come to the conclusion that the appeal must bedismissed, with costs.
Dti Sampavo J.—I agree.
Appeal dismissed ,