( 325 )
DODWELL et al. v. ROWTER et al.
D. C„ Colombo, Nos. 11,295 and 11,405.
Civil Procedure Code, a. 181—Certificate of requirements fulfilled under8. 42 of Courts Ordinance—Judgment against one person uponanswer filed by another person without authority—Motion forvacating such judgment—Petition for restitutio in integrum—Appeal to Her Majesty in Council.
Where, in an action against three persons said to be partners,summons was served only on the second defendant, and he filedanswer on behalf of himself and the first defendant withoutexhibiting any authority from the first defendant, and decree wassigned by the Supreme Court against the first defendant only ;and where that defendant applied for a reversal of such decreewith liberty to him to appear and defend himself—
Held, that the first defendant’s application was in the nature of apetition for restitutio in integrum, and that so long as anotherremedy was available, namely, to bring the judgment in questionin review within the time prescribed by the Code, the petition forrestitution could not be allowed.
Held further, per Withers, J., that in the circumstances of thecase the first defendant was entitled to a certificate under section 781of the Civil Procedure Code, so as to permit him to appeal to HerMajesty in Council against the order disallowing the petition forrestitution.
TN case No. 11,295, the plaintiff sued the defendants for therecovery of Rs. 1,594 as damages arising from a breach ofcontract, and Rs. 2,593 as debt due to the plaintiffs in respect ofcertain advances made to the defendants from time to time.Plaintiff prayed judgment for Rs. 4,187 with interest at 14 percent, on Rs. 2,593.
In another case, No. 11,406, plaintiffs sued the defendants fora sum of Rs. 7,000 due on a promissory note made by the seconddefendant as a partner of the first and third defendants, who wereall said to be carrying on business under the name and styleof Mana Thavanna.
No summons was served on the first and third defendants, butthe second defendant filed answer on behalf of himself and thefirst defendant without exhibiting any authority from the firstdefendant.to do so.
The case came on for trial before the Acting District Judge ofColombo, who on the 12th December, 1898, entered judgmentagainst the second defendant only, being of opinion that partner-ship had not been proved between the defendants.
On appeal by the plaintiff, the case came on for hearing beforeBonser, C.J., and Withers, J., who were agreed that seconddefendant acted as the agent of the first defendant, and that judg-ment should be entered against the first defendant. A decree tothat effect was entered on the 6th February, 1899.
( 326 )
1890. The first defendant thereupon applied to the Supreme CourtAvgust SB- that, as no Summons was served on the first defendant and for otherreasons stated in the affidavit filed with his petition of 10th Maroh,1899, the decree of the Supreme Court should be set aside andpermission given to him to appear and defend himself.
The Supreme Court disallowed this application on the 9th May,1899.
And now the first defendant, desirous of appealing to HerMajesty in Council against the order of the Supreme Court refus-ing to vacate its decree dated 5th February, 1899, petitioned theSupreme Court (1) for a certificate under section 781 of the CivilProcedure Code that, as regards the amount, value, and nature, thetwo cases against him fulfilled the requirements of section 42 ofThe Courts Ordinance, 1889, and that it was otherwise a fit one toappeal to Her Majesty in Council; (2) that the Court do determinethe amount and nature of the security to be given by the petitionerfor costs; and (3) that the case be heard in review and the decreeof the Court dated 6th February, 1899, be set aside, and thatpetitioner be allowed to defend the action. This application wasmade before Withers, J.
Layard A.-O. (H. Jayawardana with him), for petitioner.
Domhorst (Van Langenberg with him), for plaintiffs, respondent.
Cur. adv. vult.
25th August, 1899. Withers, J.—
This is an application under section 781 of the Civil ProcedureCode for our certificate, that the case—in which by our judgmeutwe dismissed the first defendant’s petition to this Court to set asideour judgment in the appeal taken from the judgment of the Courtbelow on the ground that it was founded on evidence amounting toperjury and fraud—as regards amount, value, or nature, fulfils therequirements of section 42 of The Courts Ordinance, 1889.
The case is a consolidated action, in which the would-be peti-tioner in review was adjudged to pay the plaintiff a principal sumin all of Rs. 6,781 • 76 with interest.
The petition to set aside our judgment in appeal we regarded asa petition for restitutio in integrum. We were asked in effect tohear evidence to satisfy us that the evidence on which we basedour judgment in appeal was perjured evidence, and given withintent to deceive the Court which received it. Had we heardfresh evidence on the point and had been satisfied that a propercase had been made out for a new trial, we might have sent backthe case to the District Court for a new trial. That petition wasdismissed for the reason that the would-be petitioner in reviewdid not, within the time limited by the provisions of the Code,bring up the judgment in review.
( 327 )
The Roman-Dutch Law does not allow the extraordinary remedyof a petition for a restitutio in integrum, if there is any other remedyavailable. Such a case as this has never occurred before thatI am aware of.
The procedure for obtaining the relief sought for by theAttorney-General has been rightly or wrongly taken over by nsfrom the Roman-Dutch procedure, as it appeared to us that theremedy was not inconsistent with the provisions of the CourtsOrdinance of 1889. I should certainly be glad if we could bedirected to hear further evidence in the interest of the .first defendant,the present petitioner, as he had no opportunity of meetingthe case put forward by the plaintiff in the Court below.
The matter is by no means free from difficulty, but I amprepared in the circumstances to grant the certificate asked for.
August 26.WlSBBBS, J.
DODWELL et al. v. ROWTER et al