080-NLR-NLR-V-05-SIDORIS-SILVA-v.-PALANIAPPA-CHETTY.pdf
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SIDOIUS SILVA v. PALANIAPPA (’HETTY.1902.
February IT.
P. C., Kalutara, 1,710.
Drawing up of formal decree—Civil Procedure Code, s. 186—Power of judge tosign decree according to judgment, pronounced by his predecessor.
Nothing in section 188 of the Civil Procedure Code disqualifies .a»|iulgo of a District Court to draw up and sign a decree according tojudgment pronounced by his predecessor in office.
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X this action plaintiff prayed for a release of the seizure ofcertain lands made under writ No. 1.545. The issue agreed
to was ” whether plaintiff at date of seizure was in possession of“ three-tenths of Addaragewatte and house thereon, .one-t-welfth“ of Bulugahawatta, and the entirety of Oduwarugewatta. ”
By consent of parties, plaintiff was allowed on the trial day(24th April. 1897) to confine his evidence to Oduwaragewatta.
The District Judge (Mr. -J. D. Mason) found in favour of plain-tiff as regards his title to Oduwaragewatta and the house thereon.
And ordered their release from seizure. He fixed a day for trialas regards the other two lands.
The case was then heard by Mr. Mason's successor, Mr. S. G.Boosirialecocq, who, by his judgment dated 27th February. 1900.dismissed the plaintiff’s action “ so far as it concerns the seizure ofthe lands called Addaragewatte and Bulugahawatta. " He refusedto enter a decree in plaintiff’s favour as to Oduwaragewatta and■the house thereon, because he thought that section 188 of theCivil Procedure Code, which enacted that “ a formal decree bearing" the same date as the judgment shall be drawn up as soon as may■“ be after the judgment is pronounced,” did not permit him toenter a decree in terms of Mr. Mason’s judgment delivered on3rd May, 1897.
Plaintiff appealed.
H. Jayawardene, for appellant.
Dornhorst and T’an Langenberg, for respondent.
17th February, 1902. Bonser, C.J.—
This is an action under section 247 of the Civil Procedure Code,in which an unsuccessful claimant in the execution proceedingsis the plaintiff, and the judgment-creditor is defendant. Thejudgment-creditor sought to make out that a garden called Odu-waragewatta and a house were the property of the plaintiff’s
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]£02. brother Sadris. The plaintiff also complained that certainFebruary 17. ian(js jn whi6h he held shares had been seized, and as regardsBonser, C.J. this last matter. I think the District Judge was right in holdingthat there was no cause of action, because what was seized leftenough to satisfy the shares claimed by plaintiff. But theDistrict Judge dismissed the plaintiff’s action altogether.
It appears that this case came on originally before Mr. Mason,who was then District Judge, and he tried one of the issuesfirst, viz., the issue as to the title to the garden, and the result ofthis trial, in the opinion of Mr. Mason, was that the plaintiff hadmade out his case, and he accordingly gave judgment in *hisfavour, and adjourned the hearing of the other issues to anotherday. Before that day arrived he ceased to be District Judge, andwas succeeded by Mr. Roosmalecocq. Mr. Roosmalecocq foundthat the plaintiff was clearly entitled to the house, but declinedto enter up a decree in .accordance with his predecessor’s judg-ment as to the garden, on the ground that “ if Mr. Mason failed“ to have a decree entered according to the judgment, he alone was“ responsible.”
It seems to me that he took an erroneous view of hisduty. The drawing up of a decree is a ministerial act, not ajudicial act. It is merely stating in legal language the judgmentalready delivered, and that that judgment was delivered by hispredecessor makes no difference. The decree can be drawn up byany person who for the time being was holding the office ofDistrict Judge.
AVe think, therefore, that the appeal should be allowedand a decree entered up in respect of the garden and thehouse. Mr. Dornhorst, who appeared for respondent, did notattempt to contest the plaintiff’s right to the house, but he didattempt to contest Mr. Mason’s finding as to the ownership of thegarden. We see no reason for holding that Mr. Mason came to awrong conclusion. The decree will be reversed as to- the gardenand the house, and plaintiff will have his costs in: the Courtbelow, and he will have no costs jn this Court..
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