047-NLR-NLR-V-71-PAULE.-DE-COSTA-SONS-Petitioners-and-S.-GUNARATNE-Respondent.pdf
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MAN ICAVASAGAR, J.—Paul E. de Cotta Sons v. Ounaratne
1967 Present:Manlcavasagar, J., and Samerawlckrame, J.
PAUL E. DE COSTA & SONS, Petitioners, and S. OUNARATNE,
Respondent
S.G. 404/66—Application in Revision in D. C. Colombo, 57252jM.
Revision—Decree of Supreme Court not in conformity with judgment—Power of
Supreme Court to amend the decree—Courts Ordinance (Cap. 6), e. 37—Civil
Procedure Code, s. 189.
Where a decree entered by a District Court and affirmed in appeal by theSupreme Court is not in conformity with the judgment, the Supreme Courtcan subsequently amend the decree not only under section 189 of the CivilProcedure Code but also by virtue of its own inherent power.
The petitioners carried on business under the name of “ Paul E. de Costaand Sons A decree of the District Court, which was affirmed by the SupremeCourt in appeal, was entered against them to pay a sum of Rs. 60,009 from theirpersonal and private assets. According to the judgment, however, the sumwas payable out of the firm’s'me ney and not out of the personal property of thepartners.
Held, that the decree should be amended by the addition of the stipulationthat “ the said sum of Rs. 60,000 and interest shall not be recoverable from thepersonal and private assets of the pjtitioners save and except to the extent oftheir interests in the said firm of Paul E. de Costa and Sons
APPLICATION to amend a decree of the District Court, Colombo,which was affirmed by the Supreme Court in appeal.
C. Ranganathan, Q.C., with B. J. Fernando, for the defendants-petitioners.
E. R. 8. R. Coomaraswamy, with G. D. 8. Siriioardene and G. Chakra-daran, for the plaintiff-respondent.
Cur. adv. vull.
MANICAVASAGAR, J.—Patti E. de Costa <fc Sons'vr Qunaratne
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March 13, 1967. Manicavasag ab, J.—
This is an application by way of revision under Section 37 of the CourtsOrdinance (Cap. 6 Vol. I of the Legislative Enactments of Ceylon, 1956Edition) by the petitioners who are in business under the name of PaulE. de Costa and Sons, in which they pray that the decree of the DistrictCourt, which was affirmed in appeal, be altered and' varied,by theaddition of the stipulation that “ the said sum of Rs. 60,060 and interest,shall not be recoverable from the personal and private assets of thepetitioners.”
Mr. Cocmaraswamy for the respondent took the objection in limine tothis application on the ground that the Court cannot under Section 37revise its own decree, for the power to revise is confined to corrections oferrors of fact or law committed by the Courts in the first instance, or bya Judge of the Supreme Court sitting alone. We agree with this sub-mission, but this does not conclude this matter: for Mr. Ronganathansubmitted at the hearing that the Court has the power under Section189 of the Civil Procedure Code, at any rime, either of its own motion orthat of any of the parties to correct any error in any judgment or order -due to an accidental slip or omission. There is no doubt that theprovisions of this section are wide enough to grant the application,having regard to the circumstances that have been brought to ournotice : but this power is not confined to Section 189 alone: the Courthas the innerent power, if the judgment does not correctly state whatit actually decided and intended, to vary its judgment so as to carry outits manifest intention. The law on this point was stated by Lord Watsonin the case of Hatton v. Harris1 and it supports the proposition I havejust stated:
'* When an error of that kind has been committed, it is alwayswithin the competency of the Court, if nothing has intervened whichwould render it inexpedient or inequitable to do so, to correct therecord in order to bring it into harmony with the order which the -Judge obviously meant to pronounce.”
i
The question before us is whether the error in the judgment anddecree of the District Court, which was affirmed in appeal without anyvariation, is one to which the principle I have stated applies. It isnecessary to briefly relate the facts. By a deed of composition (exhibit X).entered into between the petitioners and the respondent, the latteragreed to accept Rs. 80,000 in lieu of the sum of Re. 105,000 due to him ;the agreement provided that this sum be paid as follows :—Rs. 18,000 onthe day the deed was executed, Rs. 2,000 on or before 30th November,1961, and the balance Rs. 60,000 within 5 years from the date of the deed,in convenient monthly instalments—the quantum of instalments wasspecified. The petitioners paid the Rs. 20,000 but defaulted to pay themonthly instalments. The deed stipulated the further terms—
.» [1892) A. C. 647 at. p. 560.
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MANIC AV AS AGAR, J.—Paul E. de Costa <Sc Sons v. Ounaratne
“ that the said amount of Rs. 60,000 shall be paid out of the businessprofits of the said firm ‘Paul E. de Costa and Sons ’; the personal andprivate assets of the partners of the said debtor-firm save and exceptto the extent of these interests in the said firm of Paul E. de Costa andSons shall not be followed for the recovery of such sum or any partthereof. ”
The respondent sued the petitioners to enforce the agreement, whichwas pleaded as part and parcel of the plaint, and prayed for judgmentin the sum of Rs. 60,000 and legal interest from date of decree. Therespondents prayed that the action be dismissed ; they specificallypleaded the terms of the agreement I have quoted, and stated th%t thefirm had no business profits, and therefore they are not liable underthe agreement to pay. This plea was an issue between the partieswhich the trial Judge had to determine, and he in his judgmentconstrued the aforesaid term as follows : he said—
“ it is not a condition of the agreement that the Rs. 60,000 shall bepaid out of the business profits of the firm. The clear construction isthat it should be paid out of the firm money and not the personalproperty of the partners.”
Having made this decision he gave judgment for the respondent asprayed for, but the decree did not state that the personal property of thepetitioners was not liable to execution. The petitioners are before uspraying that the decree of the District Court, affirmed in appeal, bevaried and altered to embody that part of the Judge’s finding that thepersonal property of the petitioners is not liable for the payment of thedecretal amount.
We are of the opinion that the omission to include that part of theJudge’s finding in the decree is accide ntal and Section 189 is applicableto this case : but as I said even if this Section has no application, this isa case where the principle I have stated applies and the petitioner’sapplication should be granted.
Mr. Coomaraswamy submitted that no issue was raised at the trialin regard to the question before us : we think there was no need to raisean issue, for the question that recovery of the- decretal amount wasrestricted only to the profits of the firm was not an issue on thepleadings.
The application is allowed but the amendment to the decree will be interms of agreement (X) and will read “ the said sum of Rs. 60,000 andinterest shall not be recoverable from the personal and private assets ofthe petitioners save and except to the extent of their interests in the saidfirm of Paid E. de Costa and Sons ”. The petitioners will have thecosts of this application.
Samerawickbamb, J.—I agree.
Application allowed.