Present : Bertram C.J. and De Sampayo J.  1920

SUPPIAH v. CROOS.

8-D. C. (Inty.) Colombo, 13,569.

Mortgage action-Discovery of the existence of a puisne incumbrancer after decree-Application to join puisne incumbrancer as party after decree-Civil Procedure Code, ss. 18 643.

The plaintiff in a mortgage action discovered, subsequently to the decree, the existence of a puisne encumbrancer, and then applied to Court to be allowed to join the puisne incumbrancer as a party.

Held, that he was not entitled to add him as a party at that stage of the action.

THE facts appear from the judgment.

A. St. V. Jayawardene, for plaintiff, appellant.-The plaintiff did not register his address, and, therefore, the decree obtained by him is not binding on the puisne incumbrancer. The plaintiff now applies to add him as a party in order to render the mortgage decree effectual. The application is made under section 18 of the Civil Procedure Code. Under this section the Court may " at any time " order a party to be joined, in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the action. The decree obtained by the plaintiff is useless. The plaintiff wants the property to be bound and executable in satisfaction of the amount due on the mortgage. This is the question involved in the suit, and to enable the Court to adjudicate upon it "effectually and completely" it can order a party to be joined under section 18. There is a similar provision in the English rules and orders. The Courts ha England have held that a party could be joined under this section even after decree is entered. (Campbell v. Holyland,1 Keith v. Butcher,2 The Duke of Buccleuch,3 Attorney-General v. Corporation of Birmingham.4) Section 18 is substantially the same as 32 of the old Indian Code, except that the words in our Code are " at any time." The Indian Courts have permitted parties to be added after amendment of decree. The words " at any time " have got a wider meaning than the words " at any stage of the proceedings " in the Indian Code.

Croos-Dabrera, for respondent (party noticed).-This is an attempt to get behind the decision of the Full Court in Suppramaniam Chetty v. Weeresekera.5 It was there held that a mortgagee, who had failed to register his address, was not to be permitted to

Foot Notes.

1 (1877) 7 Ch. D. 166.             3 (1892) Probate D. 201.
2 (1884) 25 Ch. D. 750.           4 (1880) 15 Ch. D. 423.
                        5 (1918) 20 N. L. R. 170.

bring a fresh action. To permit the plaintiff to join a puisne incumbrancer at this stage would be to help him to defeat the object of that decision. If plaintiff was negligent and did not register his address he must suffer for it. Section 18 contemplates the adding of parties before judgment. It allows the plaintiff or defendant to apply on or before the hearing "to add a party"; but it says that the Court may " at any time " order any party to be added. This means before final judgment. The words " at any time " occur in other sections of the Code, and contemplate a period of time before the decree. The interpretation suggested by the appellant's counsel is contrary to the whole spirit of the Code. If this application is allowed, fresh pleadings would have to be filed, the decree should be vacated, and a new trial ordered. There is no provision in the Code which permits a decree to be amended or vacated under these circumstances. A decree could be amended under section 189 on the ground of any clerical or arithmetical error. On no other ground can this be done. (Perera v. Ekanaike,1 Ramasamy Pulle v. De Silva,2 Silva v. Silva,3 Silva v. Silva.4) Sections 18 and 189 should be read together. It will serve no purpose if a party is added, unless a new decree is entered so as to bind him. If applications of this kind are allowed there will be no finality to litigation. Counsel a