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Present : Bertram C.J. and Garvin A.J.
LUCYHAMY v. ATAVIS et al.
9—D. C. (Inttj.) Colombo, 7.191
Judgment obtained by fraud—Application for stay ' of safe—Power ofCourt to grant application till defendant applies for restitutio inintegrum—Civil Procedure Code, s. 343—Second action whileearlier action tees pcnding^-Power of Court to enter order of abate-ment in first action.
Where a defendant, against whom judgment has been entered,alleges that the judgment has been obtained by fraud, the Courtmay stay the execution of the decree and give him time, to applyfor restitutio in integrum.
Where a second action is instituted, pending an earlier actionon the subject-matter, the Court may enter an order ofabatement of the earlier action if it is stale.
HE plaintiff, appellant, sued the defendants, respondents, inthis action for the recovery of a sum of Bs. 800 and interest
due on a mortgage bond.
Summons was served on the defendants on January 27, 1923,'and decree nisi on May 19, 1923, but the defendants failed toappear, and decree was made absolute on September 13, 1923, andthe sale of the mortgaged premises fixed for November 9, 1923.
On November 8, 1923, the defendant made an application tostay the said sale in the absence of the plaintiff, and on the sameday the said application was allowed.
On the same day the plaintiff moved for inquiry into the defend-ant’s application.
On December 3, 1923, the learned District Judge inquired intothe allegations in defendants’ affidavit, and made order directing thatthe said sale be stayed and divided costs.
The defendants1 affidavit was as follows:—
% The plaintiff in this action claims a sum of Rs. 800 with interestat 90 per centum per annum on a mortgage bond executed by us onJuly 3, 1914. This bond was executed by us to accommodate withsome money one D. John Silva of Grandpass who was living with theplaintiff.
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An action bearing No. 1,900 was instituted in this Court by theplaintiff against my wife and * me on this same bond on or about Sep*tember 15, 1920, bnt the action was settled, and no farther steps weretaken in the action since November, 1921.
1 received the summons in this action about the end of December,1922, when I appeared before this Court in person, obtained a dateto tile answer, and saw the plaintiff, who agreed to withdraw thisaction. I believed she would do so, and took no steps to tile answer,bnt I And she continued the action and obtained judgment withoutserving decree iii*i on me and my wife.
It was only about the 30th ultimo that my attention was drawnto this development of this action, and that by the sight of a notice of
• sale posted at the premises mortgaged by the said bond.
C. For the reasons and under the circumstances aforesaid, I amadvised and verily believe we have a good and valid defence on themerits of the above case.
8. No decree nin was ever served on me or my wife.
if, V. Percra, for the appellant.
Boertsz, for the respondents.
March 6, 1924. Bertram C.J.—
This is an appeal against an order confirming an order made exparte for the stay of the sale in an action in which a decree absolutehad been entered. The ground of the application was fraud, thatis to say, it was alleged that the defendants had been fraudulentlyprevented from defending the action by the representation of theplaintiff. The learned Judge, however, does not appear to havebased his order upon that ground. He appears to have beenconcerned with the fact that an earlier action on the same subject-matter was still pending in his Court. His judgment is mainlyoccupied with the question of this duplicity of actions, and he saysnothing about the alleged fraud. So far as the duplicity of actionsis concerned, it happens that the first action is so stale that it isliable to be abated, and this circumstance could be cured by anorder of abatement, and I am unable to see that such an orderwould affect the rights of the parties in the subsequent action.The real question is as to the right of the District Court to makean order for a stay of execution in a case in which it has alreadyentered a decree absolute. The District Court has, of course, nopower to set aside its own decree, and it could not order a stay ofthe sale pending an application for this purpose. The proper
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remedy in a case of this sort—assuming the allegations to be true,is elsewhere by proceedings for restitutio in integrum, or by a separteaction altogether. I think we may treat this case as though thelearned Judge had stayed the execution with a view to allow thedefendant to seek his proper remedy.
Mr. H. V. Perera contests the power of the District Court so toact. I think myself that the words of section 848 of the CivilProcedure Code are wide enough to allow a defendant againstwhom judgment has been entered, and who alleges that thejudgment has been obtained by fraud, to apply to the Court forstay of the sale in order to allow him to pursue his proper remedy.I think that such a cause would be a just cause within the meaningof the section. It may be that the defendants’ only possible wayof securing justice is to take this step. The difficulty is that thelearned Judge not having considered this aspect of the oase hasnot fixed a termination to the order of stay,
I would vary his order by limiting the duration of it to a fortnightfrom this date. In the event of the proper steps being taken,I think that the costs of this appeal should abide the event of suchproceedings as may be taken. If no proper proceedings are takenwithin the fortnight, then I think that this appeal should standallowed, with costs.
Gabvin A.J.—I agree.
LUCYHAMY v. ALWIS et al