1948     Present: Dias and Gratiaen JJ.

DHARMADASA, Appellant, and MERAYA, Respondent

S. C. 389-D. C. Panadure, TK 525/25,438

Civil Procedure Code-Partition action-Amendment of final decree-Accidental slip or omission-Failure to notice reservation of life interest in deed-Jurisdiction to amend-Res judicata-Section 189.

A partition action proceeds on oral as well as documentary evidence and the failure to notice the reservation of a life interest in a deed is an accidental slip or omission which gives the Court jurisdiction to amend the decree under section 189 of the Civil Procedure Code. Where a decree is so amended with notice to the parties it is res judicata and cannot be attacked in a collateral action.

APPEAL from a judgment of the District Judge, Panadure.

E. B. Wikramanayake, K.C., with H. Wanigatunga, for plaintiff, appellant.

H. W. Jayewardene, for defendant, respondent. 

Cur. adv. vult. 

November 28, 1948. DIAS J.-

The plaintiff-appellant and his deceased wife owned an undivided share in a land called Koskandewatta or Batadombagahawatta. They by their deed P2 of 1927, reserving to themselves a life interest, donated that share to their three children including the defendant-respondent.

The main corpus was partitioned in D. C. Kalutara 20,286. In his plaint the appellant recited the deed P2 and disclosed the fact that he claimed a life interest over the share donated by that deed. When giving evidence regarding the devolution of title at the trial of the parti­tion case, the appellant produced the deed P2 (marked P7 in that case), but the record does not show that he made any mention of the life interest 

which was clearly reserved in that deed. The result was unfortunate; because neither the interlocutory decree D4, nor the final decree PS reserved to the appellant his life interest over the divided lot 7 which was allotted to his daughter the respondent (6th defendant in the partition action).

Within a month after the final decree was entered, however, the plaintiff with notice to the respondent applied to amend the decree. The respondent, though personally served with notice, failed to appear, and the Judge, who was not the Judge who tried the case, allowed the amend­ment which was incorporated in the final decree P3. No appeal was taken against the order allowing the amendment.

Three years later the respondent filed proxy and without any notice to the appellant, who was in possession of lot 7, obtained a writ of possession and ejected the appellant, who thereupon moved to be restored to possession. For some reason, which is not clear, the appellant's counsel did not press this application, which was, consequently, dismissed with­out costs. The appellant, thereupon, filed the present action against the respondent. The District Judge dismissed his action holding that the amendment of the final decree P3 was bad and made without juris-diction, and that the dismissal of the appellant's applicati