Present : The Hon. Sir Joseph T. Hutchinson, Chief Justice,
Mr. Justice Middleton, and Mr. Justice
Wood Renton.

SILVA v, SILVA et al.

D. C, Galle, 7,879.

Preliminary decree in a partition action-Binding on parties to the action- Res judicata-Third parties may intervene before final decree.
A preliminary decree made in a partition action in accordance with the judgment is binding on the parties to it, subject to an appeal, and the power given by section 189, Civil Procedure Code, to correct or modify any clerical or arithmetical error. The Judge who made the preliminary decree or his successor in office has no power to modify the preliminary decree, even if he be of opinion that the former decision was mistaken in fact or law.

But before the final decree is made, persons who were not parties to the preliminary decree can come in and have their claims adjudicated upon, as the preliminary decree would not bind such persons.

APPEAL from a judgment of the District Judge of Galle (W. E. A Thorpe, Esq.). In this case Mr. McLeod, District Judge, by his judgment of January 13, 1908, held that the added defendant (respondent) was not entitled to a one-sixteenth share which he claimed, and that the plaintiff (appellant) was entitled to it, and preliminary decree was entered accordingly. There was no appeal against the decree. Subsequently, in August, 1909, when the Commissioner's report came for consideration, the added defendant re-asserted his claim. Mr. W. E. Thorpe, District Judge (who succeeded Mr. McLeod), held that the one-sixteenth share had been

Mm. 22,1910 erroneously awarded to the plaintiff. He made an order amending the Preliminary decree by taking away the one-sixteenth share from the plaintiff, and adding it to the added defendant's share.

The plaintiff appealed. Bawa, for appellant-Van Langenberg, for respondent.

Cur. adv. vult.

March 22, 1910. HUTCHINSON C.J.-

In this partition action the District Judge gave judgment on January 13, 1908, and the preliminary decree for partition was drawn up in accordance with the judgment. One of the points decided in the judgment was that the present respondent was not entitled to a one-sixteenth share which he claimed, but that the appellant was entitled to it; and the decree allotted that share to the appellant. There was no appeal against the decree.

In pursuance of the decree a commission was issued; the Commissioner made his return, and the case came on for hearing before another Judge on an application to confirm the return. The application was heard in August, 1909, when the present respondent re-asserted the claim which had been decided against him; and on August 4, 1909, the Judge allowed the claim. He held that he had power to correct a clear error in his predecessor's judgment and decree; he found that there was such an error; and he made an order amending the preliminary decree by taking away the one-sixteenth from the appellant, and adding it to the respondent's share. This is an appeal against that order; and we are asked to hold that there was no power to make that order.

The preliminary decree was in accordance with the judgment and carried out the intention of the Judge, and the error alleged was not an arithmetical or clerical error. It was alleged that the Judge made an error in deciding that the appellant had proved that the share in question had devolved on him, overlooking the fact that the appellant's title to it was really only that of an usufructuary mortgagee and not an absolute title, which fact the Judge who made the order of August, 1909, says is absolutely plain, so that the preliminary decree ought to have allotted that share to the appellant as mortgagee merely.

The final decree in a partition action is binding on every one, whether party to the action or not. Unless there is some authority to the contrary which we must follow, I would