Sinno Appu V. Andris Et Al.,

Present : The Hon. Sir Joseph T. Hutchinson, Chief Justice,
and Mr. Justice Middleton
 
SINNO APPU v. ANDRIS et al.

D. C. (Testamentary), Galle, 8,510.

Clerical error in judgment repeated in decree-Court has power to amend decree-Judgment of lower Court affirmed on appeal-Supreme Court alone can alter clerical errors in its decree-Civil Procedure Code, s. 189.

If a Court is satisfied that 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 judgment upon which the decree is founded cannot make any difference, even though the result is that the decree as amended is at variance with the judgment. If the judgment contains a mistake in addition, which mistake is repeated in the decree, or if it contains a clerical error which is repeated in the decree, 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 lower Court has no jurisdiction to amend it.

THE facts of this case are fully set out in the judgment of the Chief Justice as follows: -

This is an appeal by the plaintiff from an order amending the decree. The plaintiff, in his plaint, asked for a declaration of his title to 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 and for damages. He alleged that the defendants had forcibly and

Sept. 9,1910 unlawfully taken possession of the land; and he estimated his Appu damages at Rs. 75 a year, and the rights which he claimed at Rs. 400-v. Andria The first defendant denied the plaintiff's title, and set up a claim by prescriptive possession. The second defendant disclaimed title and denied the ouster, and said that he was in possession of some of the trees under a lease from the first defendant. On February 2, 1909, issues were settled, and the Judge noted "damages agreed upon at Rs. 10 a month." The case was tried the same day, and on the 4th judgment was given in favour of the plaintiff for one-third of half of thirteen thirty-seconds of the soil and paraveni trees and thirty-five trees of the planter's share, and damages at Rs. 10 a month for two years; and the decree followed the judgment. The defendants appealed. The first objection put forward in their petition of appeal dated February 13, 1909, was that, as the Judge had held that the alleged ouster was fictitious, no damages and costs should have been awarded; they then set out some reasons for holding that the Judge's finding on the facts was wrong; and the second defendant urged that he was in no way liable for damages or costs. That appeal was dismissed on November 30, 1909. The defendants then applied to this Court for restitutio in integrum, supporting their application by reference to some documents which had not been put in evidence at the trial, but the application was refused on March 22, 1910. Then, on May 26, 1910, the first defendant's proctor applied to the District Court to amend the decree of February 4, 1909, by substituting Rs. 10 a year for Rs. 10 a month. He alleged that the word " month " in the Judge's note of the agreement as to damages on February 2, 1909, was a mistake for " year." The application was heard on June 2; no evidence was given; the plaintiff's proctor, who was not the proctor who had appeared for him at the trial, said that his client was absent, and that he could not admit that it was a pure mistake, and he contended that the Court had no power to alter the decree. The learned Judge, the same Judge who had tried the case, thought that there was no doubt that it was not the intention of the parties to agree to Rs. 10 a month; that as the damages claimed were only at the rate of Rs. 75 a year, it was impossible that counsel could have agreed upon damages at Rs. 120 a year. He said that it was impo

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