( 21 )
PERERA v. EKANAIKE.
D. C., Chilaw, 24,352.Judgment obtained by fraud or passed by mistake—Setting it aside—Procedure to be adopted.
A judgment obtained by fraud or passed under a mistake maybe set aside either by a regular action or, possibly, by applicationby way of summary procedure as regulated by the Civil ProcedureCode. It cannqt be done by mere motion supported by affidavitswith notice to the decree-holder.
'J'HE facts of the case appear in the judgment of Withers, J.Ghitty, for appellant.
Domhorsl, for respondent.
9th September, 1897. Withers, J.—
This is an'action by one person for the recovery of a considerablesum of money against another person appointed under section642 of the Code to represent the estate of a deceased mortgagor.This official was appointed, under the chapter for the adminis-tration of estates, the administrator of all deceased’s property,including the premises in question. A writ was taken out inexecution of the judgment in this case, and under that writ dertain
( 22 )
September 9.Withers, J.
properties were seized as being part of the deceased mortgagor’sestate. The widow of the deceased mortgagor, who it seems hastaken possession of her husband’s estate, claimed before the Fiscalone-half of the property which came to her on the death of herhusband. The claim was referred to the Court, and the matter ofthe claim has not yet been decided. It was adjourned to give thedefendant an opportunity of having the judgment in executionset aside. Accordingly her proctor moved the Court to have thejudgment set aside on notice to the decree-holder, and he supportedthe application by an affidavit of his client. The affidavitstated the facts of the steps in this case in regard to theappointment of the official administrator, and contained statementsto the effect that after 1884, when the case was taken off the rollbecause it had become dormant, the matters in dispute were adjustedby the deceased mortgagor and the deceased plaintiff. Theadjustment, it is said, was effected by the transfer of property tothe original plaintiff which made up for any loss which theplaintiff might have sustained under the bond with the originaldefendant. Whether the widow of the late plaintiff knew of thissettlement of the case is not, I think, stated by the defendant in heraffidavit; but no mention of it was made to the Court either bythe substituted plaintiff or the widow, the defendant’s officialadministrator. It goes without saying that if the Court had beensatisfied that the original debt had been satisfied, that the originaldebt had been discharged, judgment would not have gone againstthe deceased mortgagor’s estate. This appears to us to be anattempt to set aside a judgment of consent between the presentplaintiff and the present defendant on the ground either that thejudgment was obtained by fraud—the fraud being that plaintiff,well knowing the facts of the settlement on or after 1884, concealedthat fact from the Court, and so obtained a judgment which other-wise she would never have obtained—or on the ground thatthese facts through ignorance of the present parties had been keptback from the Judge who passed the judgment under a mistake andin ignorance of facts which had he known he would not have passedthe judgment in question.
Now, I do not think that the proceedings taken out by theclaimant to set aside the judgment in this case were the rightproceedings. They certainly should have been taken, it seems tous, by action regular or summary. The more formal course wouldhave been by regular action. It may be possible to come into thecase by summary action, and if that is done, it must be done in themanner required by the Code. There must be a petition and anaffidavit. The petition must clearly set out facts which disclose
( 23 )
fraud on the parties plaintiff, or an ignorance of faots in oonse- 1897;quence of which there was mistake on the part of the Judge. That September 9.must be served on the opposite side, who would then have an Withers, J.opportunity, if so advised, of meeting that affidavit with a counteraffidavit. Then issues could be settled and decided ; hut that wasnot the course adopted by the would-be appellant; She attemptedto take much too short a cut to her end, and has failed. I donot wish to prejudge her case, but looking at it on the presentmaterials there is no ground for setting aside this judgment byreason of fraud or mistake. For anything less, such as anirregularity, if any there be, in the appointment of the defendantunder seotion 642 of the Code to defend this action, that judgmentmust stand until set aside in appeal or in revision; if set aside inrevision, it must be done by a proper application in this Court,supported by a proper affidavit on notice to the other side. Atleast we ought to require this here.
I think the Judge was right in refusing to set aside the order inthe case. The case will go back for the claim inquiry to be continuedand decided.
Browne, A.J.—I agree.
PERERA v. EKANAIKE