Present : Schneider and Garvin JJ.RAMAN ADEN CHETTY v. FERNANDO et al.161—D. C. Colombo, 15,416Failure of defendant to pay costs of the day before next date of trial—Agreement that judgment should be entered in plaintiff*s favourin failure of such payment.
The defendants failed to pay the costs of the day Rs. 76, anda further sum of Bs. 6.S0 t-o the plaintiffbefore the date of trial.**On the date of trial defendants tendered this sum, but plaintiffrefused to accept it, and claimed judgment in terms of the agree-ment. The District Judge held that defendants were under noobligation to carry out their part of the agreement, inasmuch asthe plaintiff’s proctor had failed to Ole a memorandum of the costof stamps, or render a bill to defendants.
Held, that plaintiff was entitled to judgment in terms of theagreement.
( 412 )
Hi) facts are set out as follows in the petition of appeal: —
Fernando On October 12, which was a trial date in the above case,tile defendant-respondents' proctor filed a motion applying for apostponement of the trial date, consenting to pay Bs. 75 asappellant’s costs of the day before the next date of trial, andagreeing to the entering of judgment in appellant’s favour infailure of such payment. The appellant consenting, the DistrictJudge made order postponing the trial to October 23, 1922, with thecondition that, if the respondent failed to pay Bs. 75 as appellant'scosts before the said postponed date of trial, judgment should beentered for plaintiff as prayed for, with costs.
On October 18 the respondent made another application for afurther postponement for the alleged reason that his counsel wasnot able to be present on October 23. The appellant opposed thesaid application, but the District Judge granted the applicationpostponing the date of trial to November 2, 1922, and withoutvacating the order for costs made on the previous date made thefurther order with the respondents’ consent that if the respondentsfailed to pay the costs of the previous date and any further stampsincurred before the said November 2, judgment should be enteredfor the plaintiff as prayed for, with costs.
The respondents failed to pay the Bs. 75 before October 23, or theBs. 75 and the further stamp costs before November 2, whereuponthe appellant on November 2 made the application that orderbe made for entry of judgment in favour of the appellant as agreed.
The respondent resisted the said application on the ground thatthe appellant had not given him previously to November 2 amemorandum showing the further stamp costs, and on the furtherground that he had brought the money for payment on that day.
The learned District Judge made order holding that the non-payment was due to the appellant's default, and made order onthe said November 2 disallowing the application of the appellant.
H. J. C. Pereira, K.C. (with him Rodrigo and H. V. Perera),for plaintiff, appellant.—The defendants agreed to pay Bs. 75 andcost of stamps before next date of trial. In default they consentedto judgment being entered against them. The defendants failedto pay the costs before the next date of trial. They tendered themonly a few minutes before the trial. They could have ascertainedthe cost of stamps by looking at the journal entries. The learnedDistrict Judge should have acted on the agreement and enteredjudgment against the defendants when they made default.
Crooe-Da Brer a, for defendants, respondents.—The parties under-stood the order to mean that the costs were to be paid before trial.The defendants were therefore within time. The plaintiff has
.himself made default in.not submitting a statement of costs incurred.It was his duty to do so. There is no section of the Code whichjustifies judgment being entered on a consent order such as this.Even if the defendants are to be bound down to such an order,it is submitted that the Court can grant equitable relief. Theconsent is something in the nature of a contract. A judgment isa contract of record. There is nothing to differentiate it from anordinary contract, and the parties are entitled to have recourse tothe usual equities. The consent to judgment is in the nature ofa penalty. The primary obligation is to pay a small sum onaccount of costs, and the penalty is harsh and' excessive as thejudgment is for Bs. 4,000. Under these circumstances the Courtscan always grant relief. The plaintiff is only entitled to actualdamages sustained-by the default.
Pebruary 7, 1923. Schneider J.—
The only point involved in this appeal is whether the plaintiff isto have judgment because the defendants failed to pay a sum ofBs. 75, and a further sum of Bs. 6.50 to the plaintiff as costs"before the date of trial." The trial .was fixed eventually forNovember 2, 1922. On that day the defendants tendered thissum, but the plaintiff refused to accept it and claimed judgmentin terms of the agreement of October 12, 1922, and October 18,1922.
The learned District Judge was of opinion that the defendantswere under no obligation to carry out their part/of that agreement,inasmuch as the plaintiff’s proctor had failed to file a memorandumof the cost of stamps, or render a bill to the defendants or theirproctor, stating the exact amount that had to be paid. It appearsto me that no such obligation lay upon the plaintiff’s proctor in thiscase. The sum of Bs. 75 was agreed upon as costs. The furthersum of Bs. 6.50 could have been ascertained by looking into therecord. Apart from this, it was the defendants’ duty to havetendered the money, and if they had done so the precise amountcould have been ascertained when the money was tendered.
I think the plaintiff is entitled to the benefit of the order con-senting to judgment in his favour. I would therefore set aside,the order of the learned District Judge appealed from, postponingthe case for trial sine die, and give judgment for the plaintiff asprayed for, with costs. Plaintiff is also entitled to costs of thisappeal.
Garvin J.—I agree.
RAMANADEN CHETTY v. FERNANDO et al