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Colonial Cases

Deonis v. Missa Nona, 1911

[civil procedure]

Deonis v. Missa Nona

Court of Appeal, Ceylon
Lascelles C.J. and Middleton J., 15 November 1911
Source: Court of Appeal Cases of Ceylon (1911-1916)

 

DEONIS v. MISSI NONA.

Sanarsinghe - Intervenient.

No. 7931 D. C. Galle.

Present: Lascelles C.J. and Middleton J.

15th November 1911.

Judgment - Decree - Amendment after passing the seal of the Court. Sec. 189 Civil Procedure Code - Inherent Jurisdiction of the Supreme Court.

   A decree cannot be amended except as provided by section 189 of the Civil Procedure Code.  Apart from the provisions of the Civil Procedure code, the Supreme Court has power to amend its decrees so as to being them in accordance with its intention as expressed in the judgment.  But it has no power to supply an omission which has occurred through inadvertence dafter the decree has passed the seal.

   This action was one for partition of kind.  The present applicant intervened claiming a portion of the land sought to be partitioned, and prayed that it be excluded from the partition.  His claim was dismissed with costs.  On appeal the Supreme Court, on the 28th August 1911, varied the judgment of the District Judge by allowing the appellant's claim with the costs of appeal; but no order was made as to the costs of the contention in the lower Court.  Decree was thereafter duly drawn up in conformity with the judgment, stamped with the seal of the Supreme Court, and the record was returned to the District Court.  On the 8th November 1911, the appellant made the present application to amend the decree of the Supreme Court by inserting an order directing the respondent to pay the costs of the contention in the District Court.

   Bawa for appellant. - In all cases of appeal where the costs are not mentioned in the decree of the Supreme Court, the rule is that the appellant shall be entitled to recover his costs when the decree of the lower Court is entirely reversed.  I. Thomson 485.  When a decree is entered importing an order as to costs, it may be amended by adding such order. Sinappu v. Punchappu [(1892) I.S.C.R. 123]; Carlill & Co. v. Rawter [1899.] I Tamb 18].  This Court has inherent power to make the amendment asked for.  The order, as it stands now, is absurd, as the appellant has to pay the costs of a contention in which he has been successful.

... A. St. V. Jayewardene (Jayetilele with him) for respondent. - I. Thomason 485 refers only to costs of appeal when the judgment of the Supreme Court makes no order at all as to costs.  The judgment was pronounced in open Court as required by $774 of the Civil Procedure Code and that provision is intended to give parties an opportunity of pointing out any error or omission.  If no error or omission is then pointed out and the decree passes the deal; of the Court the Supreme Court cannot amend the decree except as provided by $189 of the Civil Procedure Code.  The Court, in adjusting the payment of costs, is influenced by various considerations, and it is difficult to recall at this distance of time what transpired at the argument of the appeal.  It may be, the Supreme Court thought the appellant who intervened several years after the institution of the action should pay the respondent's costs in the lower Court.  The headnote to Sinappu vs. Punchappu [I. S. C. R. 131] is misleading.  It is no authority for the proposition that a decree can be amended, but it only provides that a decree cannot be amended on an ex parte application.  The Supreme Court, as it now stands, was constituted by Ordinance No. 1 of 1889 and has the powers which are expressly or impliedly given to it by that stature and no other.  In the matter of the Election of a member of the local Board of Jaffna. [I. A. C. R. 128].

   Bawa in reply.

   Lascelles C.J. - This is a motion by the appellant to amend the decree of this Court by ordering the respondent to pay the appellant's costs of contention in the District Court.  In the District Court the appellant failed in his contention, and was ordered to pay the respondent's costs.  On appeal, however, the appellant succeeded in his contention and was allowed the costs of appeal, but the judgment and decree of this Court are both silent as to the costs in the Court below, with the result that the order of the District Court stands and the appellant is still liable to pay the respondent's costs in the Court below.

   There can, I think, be not doubt but that the omission to make the order with regard to the costs in the Court below was due to an oversight.

   Judgment was pronounced in open Court on the 28th August 1i911 at the close of the argument, man the present motion, if made on that date or at any time before the decree was perfected, would almost certainly have been successful.  The question for decision is whether the application can be allowed at this stage.

   Section 189 of the Civil Procedure Code empowers a Court to amend its decree on certain specified grounds, namely, if the decree is at variance with the judgment or on account of clerical and arithmetical errors, but obviously none of these grounds are available in the present case.

   The question, in substance, is whether it is competent to a Court to amend its decree on grounds other than those stated in section 189.

   The correction which is now sought for appears to be one which could have been made under the English Slip Order (O.  28 r. 11,) in re Budd [(1887) W. N. p. 251] but that order is wider in its scope than section 189 of the Civil Procedure Code, in as much as it provides for errors arising from accidental slips or omissions and is not limited to the correction of variations between the judgment and decree and clerical or arithmetical errors.

   The question then arises whether the Supreme Court possesses inherent power to make an amendment of this nature.  That this Court, quite apart from the provisions of the Civil Procedure Code, has power to amend its decrees so as to bring them in accordance with its intention as expressed in juts judgment, can hardly be doubted.  But it is another matter, after a decree has passed the seal, to supply an omission which has occurred through inadvertence.

   In India it has been held under the corresponding Sec. 206 of the Civil Procedure Code of 1882 that a Court should not amend except in accordance with the terms of the section, Abdul Hayai Khan v. Chunia Kuar -8 All. P. 377]and in England it has been held that a Court cannot correct a mistake of its own after the judgment had been perfected even though the error be apparent on the face of the judgment. [Charles Bright & Co., Ltd. v. Sellar, [(1904) I.K.B. p. 6.]

      In the face of these authorities and in the absence of any provision in the Courts Ordinance from which it can be implied that the Supreme Court possesses inherent power to make a correction of this nature, I am obliged to hold, with some reluctance, that we are unable at this stage, to accede to the motion.  The motion is dismissed with costs.

   Middleton J. I agree.

   Proctor for Appellant - W. E. Weerasooriya.

   Proctor for Respondent - Henry Gooneratne.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School