070-NLR-NLR-V-13-SINNO-APPU-v.-ANDRIS-et-al.pdf
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Present: The Hon. Sir Joseph T, Hutchinson, Chief Justice,and Mr. Justice Middleton
Sept. 0,1910
SINNO APPU v. ANDRIS et al.
D. C. (Testamentary), Galle, 8,510.
Clerical error in judgment repeated in decree—Court kas power to amenddecree—Judgment of lower Court affirmed on appeal—SupremeCourt alone can alter clerical errors in its decree—Civil ProcedureCode, s. 189.
If a Courtissatisfied thatthereis aclerical error in its decree
it is bound to correct it, and the fact that there is the same clericalerror in the judgment upon which, the decree is founded cannotmake any difference, even though the result is that the decree. as amendedisat variancewiththejudgment. If the judgment
contains a mistake in addition, which mistake is repeated in thedecree, or if it contains a clerical error which is repeated in thedecree, the decree ought to be amended.
Where, however, a decree of a lower Court' is affirmed on appeal,the decree becomes a decree of the Supreme Court, and the lowerCourt has no jurisdiction to amend it.
T
HE facts of this case are fully set out in the judgment of theChief Justice as follows :—
This is an appeal by the plaintiff from an order amending thedecree. The plaintiff, in his plaint, asked for a declaration of his titleto half of seven thirty-second-parts of the soil of certain land and .to some trees and shares in trees, and for recovery of possession andfor .damages. He alleged that the defendants had forcibly and
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&4P*. 9,2910 unlawfully taken possession of the land; and he estimated hisSinno Appu damages at Rs. 75 a year, and the rights which he claimed at Rs. 400.
*>' An&ria The first defendant denied the plaintiffs title, and set up a claim byprescriptive possession. The second defendant disclaimed title anddenied the ouster, and said that he was in possession of some of thetrees under a lease from the first defendant. On February 2, 1909,issues were settled, and the Judge noted ** damages agreed upon atRs. 10 a month." The case was tried the same day, and on the4th judgment was given in favour of the plaintiff for one-third ofhalf of thirteen thirty-seconds of the soil and paraveni trees andthirty-five trees of the planter’s share, and damages at Rs. 10 amonth for two years; and the decree followed the judgment. Thedefendants appealed. The first objection put forward in theirpetition of appeal dated February 13, 1909, was that, as the Judgehad held that the alleged ouster was fictitious, no damages and costsshould have been awarded; they then set out- some reasons forholding that the Judge's finding on the facts was wrong; and thesecond defendant urged that he was in no way liable for damagesor costs. That appeal was dismissed on November 30, 1909. Thedefendants then applied to this Court for restitutio in integrum,supporting their application by reference to some documents whichhad not been put in evidence at the trial, but the application wasrefused on March 22, 1910. Then, on May 26, 1910, the firstdefendant's proctor applied to the District Court to amend thedecree of February 4, 1909, by substituting Rs^ 10 a year for Rs. 10a month. He alleged that the word " month " in the Judge’s note ofthe agreement as to damages on February 2, 1909, was a mistake for" year." The application was heard on June 2; no evidence wasgiven; the plaintiff’s proctor, who was not the proctor who hadappeared for him at the trial, said that his client was absent, andthat he could not admit that it was a pure mistake, and he contendedthat the Court had no power to alter the decree. The learned Judge,the same Judge who .had tried the case, thought that there was nodoubt that it was not the intention of the parties to agree to Rs. 10a month; that as the damages.claimed were only at the rate of Rs. 75a year, it was impossible that counsel could have agreed upondamages at Rs. 120 a year. He said that it was impossible to sayhow the error arose, but that it was probably a clerical error of hisown. He held that he had power to correct the error, and heaccordingly made the order now under appeal, amending the decreeby giving damages at the rate of Rs. 10 a year, instead of Rs. 10a month.
The plaintiff appealed.
A. St. V. Jayewardene, for the appellant.—The error, if’it be anerror, is in the judgment; it is not merely a clerical or arithmeticalerror in the decree. The decree in this case is in strict conformity
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with the judgment. Section 189, Civil Procedure Code, does not Sept. 9, 1910give the Court jurisdiction to correct errors in the judgment. The sinno Appucorresponding sections of the Indian Code give the Court power Andneto correct errors even in judgments. The District Court has nopower to amend a decree affirmed by his Court. Counsel citedRamasamy Pulle v. De Silva ,l Dab era v. Marikar,2 Tarsi Ram v.
Man singhfs Silva v. Silva.4,
Wadsworth, for the defendants, respondents.—Even if theDistrict Court had no power to amend the decree, the SupremeCourt may even now amend the decree, as the whole case is before it.
But as the judgment of the District Court was affirmed by thisCourt, it may be said that the decree which is now sought to beexecuted is the decree of the District Court. A Court may correcterrors even in a judgment, if the judgment does not correctly statewhat the Court actually decided and intended to decide (Ainsworthv. Wilding *). The Court has an inherent power to correct clericalerrors of this nature. The following authorities were also cited:
Thakoor v. Chuttoraj,6 Annual Practice 398.
A. St. V. Jayewardene, in reply.—Ainsworth v. Wilding turns onthe wording of Buies 11 and 12, Order 28. The Civil ProcedureCode does not contain similar provisions.
[After the argument was closed, Mr.. Jayewardene submittedfurther authority (Lai Brig Narain v. Bikram Bahadur 7).]
Cur. adv. vult.
September 9, 1910. Hutchinson C. J.—
His Lordship, after setting out the facts, continued: —
The Civil Procedure Code says nothing about the amendment of ajudgment, but section 189 enacts that if any clerical or arithmeticalerror is found in a decree, the Court shall amend the decree so as tocorrect the error. It seems to me, therefore, that if a Court is satisfiedthat there is a clerical error in its decree, it is bound to correct it,and the fact that there is the same clerical error in the judgmentupon which the decree is founded cannot make any difference, eventhough the result is that the decree as amended is at variancewith the judgment. If the judgment contains a mistake in addition,which mistake is repeated in the decree, or if it contains a clericalerror which is repeated in the decree, the decree ought to be amended.In the present case, however, the decree of the District Court hadbeen affirmed on appeal before this application was made; thedecree had become a decree of the Supreme Court; and the District
1 (1909) 12 N. L,. R. 298.4 (1910) 13 N. L. R. 87.
* (1892) 1 S. C. R. 210.8 (1896) 1 Ch. 673.
1 (1886) 8 AO. 492.• (1873) 21 W. R. 41.
7 (1910) “ Lawyer ” /or August, 36.
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Sept. 9,1910 Court had no jurisdiction to amend it (see Lai Brig Narain v.Hutchinson Bikram Bahadur 1). But I think that this Court, having the whole caseC. J. now before it, ought to deal with it as in revision and make the amend-Sinno Appu ment, if it is quite dear that there was an error; that is, if it is quitev. Andria clear that the parties did not at the settlement of issues intend toagree that the damages should be Bs. 10 a month, but that bothparties intended to say Es. 10 a year. The judgment of the DistrictCourt was pronounced in Court. The decree was signed by theplaintiff’s proctor. That proctor died at the end of 1909, so thatthere is no evidence as to what he thought about the agreement as todamages,, except so far as the fact of his having signed the decree issome evidence that he thought that it carried out the agreement.The decree is very short, and it does not seem likely that the clientsox their proctors should read it through without noticing the mistake,if it was a mistake. 7et both the proctors must have read boththe decree and the judgment many times in the course of the twoproceedings in the Supreme Court; and on the appeal the defend-ants, although they objected to the order to pay damages, neverhinted that there was a mistake in the amount. And on the presentapplication no evidence at all was offered. But surely the defend-ants and their proctor, or one. of them, can remember what thereal agreement was. The applicant ought to have given someevidence that his proctor said Bs. 10 a year, and that the plaintiff’sproctor agreed to Bs. 10 a year. I am not satisfied that bothparties agreed to Bs. 10 a year, but 1 think that it would be rightto give the defendants an opportunity of giving some evidencenow. The appeal may stand over for five weeks, with leave forthe respondents to file an affidavit or affidavits, copies of whichthey must deliver to the appellant’s proctor within fourteen days,mid the appellant will have fourteen days after such delivery tofile an affidavit or affidavits in reply, and to deliver copies to therespondents’ proctor.
Middleton J.—
I agree to the matter standing over for affidavits.
After reading the respondents’ affidavit the Supreme Court amended •the decree by substituting Rs. 10 a year for Rs. 10 a month.
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1 {1910) “ Lawyer "for Avgust, S6.