Hinnihamy Et Al., V. Carolis

1948 Present : Jayetileke and Wind bam JJ.
 
HINNIHAMY et al, Appellants, and CAROLIS,
Respondent.
 
S. C. 151-D. C. Galle, 2,257.

Civil Procedure Code-Amendment of decree-Settlement between parties-Consent order-Mistake made by Counsel in stating terms of settlement-Power of Court to amend-Section 189.
 
A Court has power, under section 189 of the Civil Procedure Code, to correct an error in an order made of consent between the parties which has been due to a slip on the part of Counsel in stating the terms of settlement to Court.
 
APPEAL from a judgment of the District Judge, Galle.
 
C. V. Ranawake, for the defendants, appellants.
 
H. W. Jayewardene, for the plaintiff, respondent.

Cur. adv. vult.

 April 5, 1948. JAYETILLAKE J.-
 
The plaintiff instituted this action against the defendants for a declaration of title to :-
 
(1) an undivided half share of Hettigoda Malaria Cumbura,
 
(2) an undivided half share of Hettigoda Mulanawatte,
 
(3) an undivided 1/12 share of Hettigoda Mulana.
 
He alleged that the 2nd defendant became entitled to the said shares on the death of her husband and that he purchased the same from her in 1926. He alleged further that the 2nd defendant and her soul the 1st defendant were in forcible possession of the said shares.
 
The defendants filed a joint answer in which they alleged that one Andiris was the original owner of the entirety of Hettigoda Mulana, eight kurunies of Hettigodawattaaddera Kebella and 10 cronies of Hettigodamulana Kumbura, and that he devised the said lands in equal shares to them by will. They alleged further that the plaintiff, alleging a division of the said lands, wrongfully claimed the entirety of the high lands. The 2nd defendant disclaimed title to any of the lands.
 
It seems to be fairly clear from the pleadings that the defendants did not dispute the plaintiff's title to the shares claimd by him and that the only question for the decision of the Court was whether the defendants wrongfully prevented the plaintiff from possessing the shares to which he was entitled.
 
The case came up for trial on August 28, 1946. Mr. Corea appeared for the plaintiff, and Advocate Panditagunawardene, instructed by Mr. Wikramanayake, appeared for the defendants. The case was settled and the following terms of settlement were recorded by the Court:-
 
" Of consent, plaintiff to be entitled to half share of premises described in schedule to plaint with damages fixed at Rs. 100.00.

Writ for damages not to issue for 3 months from today. Each party to bear his own costs. Enter decree accordingly. "
 
On September 8, 1946, Mr. Corea moved that the consent order be amended by deleting the words "half share" on the ground that a mistake had been made by defendants' Counsel in stating the terms of settlement that had been arranged by the parties. This matter came up for inquiry on October 30, 1946. At the inquiry Counsel for the defendants took the preliminary objection that the Court had no jurisdiction to review the consent order entered on August 28, 1946. The learned District Judge overruled the objection and proceeded to hear evidence. Advocate Panditagunawardene, who appeared for the defendants at the trial, was called by the plaintiff, and he stated that the settlement was that the plaintiff should be declared entitled to the share described in the schedule to the plaint, and that what he meant by " a half share " in stating the terms of settlement to Court was " the half share as set out in the schedule to the plaint and not to a half of half". No evidence was led by the defendants to the contrary.
 
The learned District Judge accepted Advocate Panditagunawardene's evidence and ordered the terms of settlement to he amended. The present appeal is against that order.
 
The only question that arises for decision in this appeal is whether the learned District Judge had the power under section 189 (1) of the Civi

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