MULCHAND JHOOMER Vs. GRMARTINDALE

JUDGEMENT

(1.) This is an application to vary an order after it has been passed by the Registrar of this Court and entered. In a matter of this kind I think the practice in this country is the same as if is in England namely as laid down by Lord Justice Cotton in the case of In re : Swire Mellor v. Swire [1885] 30 Ch. D. 239 at p. 242, where the learned Lord Justice says: The regular course is this that when an order is settled any party who desired to object to the terms of it as settled should intimate to the Registrar that he intends to give a notice of motion to vary the order. He must state what variation he desires and then he must move the Court, at the risk of costs, to have that variation made. It is the duty of the Registrar at once to pass and enter the order when settled, unless some of the parties-state that they intend to move to vary it. It would cause delay in the Registrar's office it any one, by simply saying "I object to that form of order" without giving notice to vary it, could prevent the Registrar from going on to pass and enter it.

(2.) Then the learned Lord Justice goes to say; but although that is the regular course, and it is only in special circumstances that the Court will interfere with an order which has been passed and entered, except in oases of a mere slip or verbal inaccuracy yet in my opinion the Court has jurisdiction over its own records, and if it finds that the order as passed and entered contains an adjudication upon that which the Court in fact has never adjudicated upon, then, in my opinion, it has jurisdiction which it will in a proper case exercise to correct its record, that it may be in accordance with the order really pronounced.

(3.) I entirely agree with the observations, of the learned Lord Justice and as I have said I think that is the correct statement of the law as applicable in this Court as well as the Courts in England. The whole question, therefore, which I have to determine is whether or not in the circumstances of this case I ought to interfere with the order which has been passed and entered, because ibis clear and it is not disputed that in the present instance the ordinary course was followed and the Registrar sent to the solicitors of the parties the draft form of order and each of these solicitors returned these drafts to the Registrar with certain alterations and signed it as being approved by him subject to such alterations; the notice of motion in the present case is to the effect that the defendant asks for an order that an order made by me on 12 December 1927, be amended by the deletion of the words "all account books, papers, memoranda and writings relating thereto." The notice also says that the defendant will ask for an order that he is entitled to the possession and delivery to him of all the books and documents whatsoever relating to his business. The draft forms of order which were sent to the parties contained the clause which is now objected to. It is as follows: And ft is further ordered that the plaintiff firm and all parsons claiming under thorn do deliver up quiet possession of the said goods together with all account books, papers, memoranda and writings relating thereto to the said Receivers.