Gihir v Batten (Civil Case No. 1810 of 1953) [1954] EACA 84 (1 January 1954)

## ORIGINAL CIVIL

## Before CRAM, Ag. J.

#### NARATI GIHIR, Plaintiff

$\mathcal{V}.$

# G. F. BATTEN, Defendant

### Civil Case No. 1810 of 1953

Civil Procedure and Practice—Civil Procedure (Revised) Rules, 1948—Order 50, rule 3—Contents of Motion—Whether competent to amend—Costs.

The defendant applied under Order 9, rule 24 for an order to set aside "an *ex parte* judgment" whereas, in fact, a decree had been extracted. At the hearing, he applied for leave to amend the notice of motion. The respondent submitted that the Court had no discretion to give leave and that the proper course was to dismiss the motion, with liberty to re-apply.

Held $(7-10-54)$ .—(1) A motion may, in the discretion of the Court, be amended, by leave or, otherwise, by consent at the hearing, subject in a proper case, to payment of any costs thrown away.

(2) If need be, the Court will order a supplementary affidavit to be filed after adjournment subject to payment of costs thrown away.

Cases cited: In re King & Co.'s Trade Mark, (1892) 2 Ch. 462; National Timber<br>and Hardware Syndicate v. Arjan Singh, supra, p. 79 (1); National Provincial Bank v.<br>Gaunt, (1942) 2 A. E. R. 112; also Annual Practice, (1954) pa

Couldrey for applicant.

D. N. Khanna for respondent.

RULING.—The Court has ruled on a preliminary point that a motion brought under one rule in error may succeed under the correct rule, that being on the assumption that the terms of the motion and its supporting affidavit could be brought under the correct rule. The applicant now seeks to amend his motion. Both in the motion and in the affidavit the words " $ex$ parte judgment" are used. It appears that a decree has been extracted so that the proceedings have gone one step beyond judgment. The rule appropriate to decree seems to be Order 9, rule 24 and if the plaintiff wishes to amend, the proper amendment would seem to be "decree by default." If it is argued that the rule applies only to decrees ex parte, and if that means decrees proceeding upon judgment ex parte and these are distinguished from judgments by default at that stage, then the Court would give relief under its inherent powers.

The respondent has argued that there is no power to amend a motion; but, according to English practice, the contrary seems to be the case. I refer to the Annual Practice at p. 938 of the 1954 Edition where it appears to be settled practice that motions may be amended by leave or consent at the hearing. I have searched the law reports in this Colony but I have been unable to discover any rule of law or practice to the contrary. I refer also to the case of In re King & Co's Trade Mark, (1892) 2 Ch. 462 which ruled that if a notice of motion is amended a new notice need not be re-marked under Order 5, rule 9 and evidence filed prior to amendment may be used without leave. That case,

it is true, was in the Chancery Division and arose out of an originating motion, but there seems no difference in practice between originating and interlocutary motions. I consider that the Court has a discretion and that amendment might not be allowed if the whole substance of the motion was sought to be changed, so that some wholly new remedy was to be substituted for the old.

In the instant motion, the remedy is the same both before and after the amendment, that is to have a judgment of the Court set aside. It may be that there has been a decree issued, but that does not seem to me to alter the nature of the remedy prayed.

The respondent has also argued that, as a new remedy is sought amounting to a new cause of action, no amendment should be allowed, as the respondent would be prejudiced by the loss of a defence of limitation. If the motion falls to be dismissed, then he submits that Article 164 of the Indian Limitation Act, 1877, precludes the bringing of a fresh motion and, in that event, amendment would defeat his defence.

On looking at the execution which followed upon the decree, however, it is to be observed that the return of the court broker is that the attachment was returned unexecuted. The court has ruled in National Timber and Hardware Syndicate v. Arjan Singh, supra, p. 79 (1) that before article 164 can be invoked, 30 days must have elapsed after a valid execution of process. Where the defendant was merely served with an attachment of movable property which was returned by the court broker as unexecuted, there was no execution as comprehended by the Article and consequently no limitation. In that event the respondent has no defence of limitation under Article 164. The case he cites, therefore, of the National Provincial Bank v. Gaunt, (1942) 2 A. E. R. 112, however much in point were Article 164 applicable, cannot assist him.

I allow the applicant to amend his motion. He ought also to file a supplementary affidavit referring to the fact of decree. The amendment to be made and affidavit filed within 14 days. Costs of to-day, and of filing, and perusing the amendments, to be the respondent's in any event.