024-NLR-NLR-V-57-S.-THAMBIPILLAI-et-al-Appellant-and-A.-MUTHUCUMARASWAMY-et-al-Respondent.pdf
Present: Grafiaen, J., and K. D. de Silva, J.8. Tli.V3ri5IPILT.AI cl a1., Appellants, and A.3rL'THUCLDrAliASWAMV r.f. a/., Respondents
.S'. C. Application 29S—D. C. Jaffna. 6,752
Civil Procedure Code—Section JS9—Amendment of judjments and decrees—“ .-Icct-rlcntal slip or omission
■Whore, in an appeal preferred by the contesting defendants in an action,the plaintiff’s claim was dismissed, but tho Supremo Court inadvertentlyomitted to muho a formal order that a decreo granting tho defendants’counterclaim for delivery of possession of tho property in dispute should boentered in addition to tho decreo for tho dismissal of the plaintiff’s claim—
Held, that as tho omission was on accidental one within tho moaning ofsoction ISO of tho Civil Procedure Code tho judgment and decreo could bo dulynmonded.
.^^.PPLICATIOX to amend a- judgment and decree of the SupremoCourt.
C. Thiagalingam, with .1. A'aycndra, for the 1st and 2nd defendant-appellants, petitioners.
II. 1I' Tambiah, with C. tihanmugunayaijatn. fur the plaintiiF-respondent.
.S'. Sharvananda. for tlie 5th defendant-respondent.
Cur. adv. vult.
October If, 1955, Gkatjtaex, J.—.
This is an application for the amendment in certain respects of thojudgment and decree of this Court dated 9th March, 1955.
A woman named’ ScHammah and her husband the 5th defendanthad by a deed P2 dated 1st February, 19-17, conveyed the land in disputeto the 1st and 2nd defendants. Sellammah died shortly thereafterleaving as her heirs the plaintiff and the 3rd, 4th, and 5th defendants.-The deed provided inter alia (1) that the 1st and 2nd defendants mustrceonvcy the property to SeJlammah and the 5th defendant on paymentof an agreed sum as consideration within a stipulated period and (2)that in the meantime the fight of the 1st and 2nd defendants to obtaindelivery of possession of the property should be postponed…..
Notwithstanding the expiry of- the stipulated period the-plaintiffsued the. 1st and 2nd defendants for a reconveyance. . The 1st arid 2nddefendants disputod their liability to part “with their title at that stageand counterclaimed (1) a declaration that they were the owners of theproperty; (2) accrued damages and continuing damages until they wereplaced in vacant possession as purchasers under the deed P2,
5Lvii
2J. X. n 50323-1,502 (11/55)
The learned trial Judgo held that the transaction was in reality a mort-gage, so that the right to a reconveyance was not barred by lapse of time.Accordingly, ho entered a decree in favour of the plaintiff (subjoct tocortain conditions which are no longer material) and dismissed the claimin roconvention. On appeal, however, the Court took a different viewof the transaction. In my judgment, with which Sansoni J. agreed,I hold that P 2 operated as an absolute sale of the property subject onlyto the conditions previously mentioned. Accordingly, the judgmentunder appeal was set aside and the plaintiff's action was dismissed withcosts in both Courts. A decree was passed in strict conformity with theterms of my judgment.
l't has now been brought to our notice that through inadvertence, andfor no other reason, my judgment, with which Sansoni J. cxjn-csscdconcurrence, had omitted to make any order in respect of the claim inreconvolition of tho 1st and 2nd defendants—that is to say, in respectof their prayer for a declaration of title and consequential relief on thebasis that, as alleged in paragraph 1 3 of tho answer, “ the plaintiff andthe 3rd, 4th, and oth defendants were in wrongful possession of thoproperty ”. It must niso be observed that, although the prayer to theanswer did not expressly ask for a writ of ejectment, certain issues hadby consent been raised at tho trial inviting a decision whether, in thecircumstances of tho case, tho 1st and 2nd defendants were entitled tothis relief as well. This disposes of Dr. Thambia-h’s argument that- thisCourt liad in any event no power on appeal to grant tho 1st and 2nddefendants anything more than a bare declaration of title and a decreefor accrued and continuing damages.
My judgment dated Oth March, 1035, with which .Sansoni J. agreed,expressly held that the 1st and 2nd defendants were the absolute ownersof tho property by right of purchase and also that their right to deliveryof possession (which had boen postponed by agreement for a periodof 21 years) had since accrued to them. Unfortunately, wc- ‘ acciden-tally ” omitted to make a formal order that a decree to this effect- shouldbe entered in addition to tho decree for the dismissal of the plaintiff’sclaim. IVe certainly did not intend to reserve the important questionof the 1st and 2nd defendants’ lights for determination in any otherproceedings. Sansoni J. has authorised me to con6nu that, in his casetoo, the “ omission ” or “ slip ” was “ accidental ”.
Dr. Thambiah has submitted that this Court has no power undersection 1S9 of the Civil Procedure Codo to grant tire relief askedfor. He relied on Dconis v. Samarasinghe but that judgment waspronounced at a time when the Court’s powers under section ISO (inits original form) were strictly limited to the correction of variationsbetween the judgment and tho decree and clerical and arithmeticalerrors. Indeed, it was to meet such a situation as has now arison thattho language of tho section was extended by Ordinance No. 26 of 1030to.easfts where an error in any judgment or order had arisen “from any.
* (ion) i j A", f – rt- so.
1 (1S92) A. C. 517, at 500.5 (1937) 7 C. L. IK. 134.
3 (1934) 41 X. L. It. 115.
accidental slip or omission Tho powers now invoked by tho 1stand 2nd defendants are co-extcnsivo with tkoso vested in tho Courtsin England by virtue of Order 2S Rule 11 of tho Rules of tho SupremoCourt- As Lord Watson explained in Hatton v. Harris 1 ;
“ "When an error of that kind has been committed, it is alwayswithin tho competency of the Court, if nothing has intervened whichrenders it inexpedient or inequitable to do so, to correct the recordin order to bring it into harmony with the order which the Judge obviouslymeant to pronounce. ”
With regard to tho decisions explaining the scope of soction 1S9 atterit was amended in 1930, Wanigasckara c. Kirihnnitj – merely decidedthat the soction cannot, after judgment, be invoked for the purpose ofgranting a party relief which through his own inadvertence he had omittedto claim at tho trial. In such a ease theie was clearly no slip or omissionon the part of the Court itself. Mapalalham v. Elayavan3 is equallyinapplicable, because there the Court had been misled into entering ajudgment which it did intend to enter, but which was later discovered tobe wrong in law. Section 139 does not empower a Court to correctmistakes of its own in law or otherwise, even though apparent on theface of the older. Bright v. SeUar *. The limited jurisdiction of a Judgeto correct decisions which he subsequently discovers to be wrong wasrecently explained in Harrison r. Harrison . Having pronouncedjudgment- he still retained control over tho ease until tho order givingeffect to his judgment is formally completed—i.e., until, in Ceylon, adecree or order has passed the seal of the Court . Roxburgh, J., accordinglywas held to have the power to recall an order which, before it was formallydrawn up, passed and entered, was discovered to be contrary to a decisionpronounced during the interval by the House of Lords. But that juris-diction is quite independent of section 1S9 or of Order 2S Rule 11.
Piyaratana Unnanse v. Waharchc Unnansc G is not material to thopresent problem ; in that ease- there was no variance in fret between theparticular decree and the judgment on which it was based. The JudicialCommittee was satisfied that the trial Judge had “ deliberately refrainedfrom deciding the title to a certain allotment of land ”.
In tho present case wc have tho power, and we are clearly under a duty,to grant tho first and second defendants relief against tho orror whichhas arisen from an accidental omission or slip for which I was primarilyresponsible. Tho judgment dated 9tli March, 1955, must now be correctedso as to bring it into harmony with tho order which Sansoui, J., and Iobviously intended to pronounco on the earlier Occasion. Accordingly,let tho judgment be amended so as
(1) to declare tho 1st and 2nd defendants entitled as against theplaintiff, anci tho 3rd, 4th, and oth defendants to tho landdescribed in tho .Schedule to tho plaint, and
(2) to oi'dor that tho plaintiff and the 3rd, 4th, and 5th defendants• bo ejected forthwith from tho said land, and that the 1st and2nd defondants "bo placed in vacant possession thereafter.
Let the decree dated 9th March, 1955, also he brought into conformitywith tho judgment so amended. Mr. Thiagalingam states that tho 1 st-and 2nd defendants do not pioss their counterclaim for damages providedthat their application for a writ of ejectment is allowed. I would there-fore make no ol der in respect of damages.
The plaintiff and tho 3rd, 4tli, and 5th defendants must pay to the1st and 2nd defendants tho costs of this application.
Swan, J.—I agree.
Application allowed.