( 467 )
Present ; Bertram C.J. and Schneider JJSUBBAMANIAM CHETTY v; NAIDU.
Application for restitutio in integrum in'D.* G. Colombo, 12,037.
Warrant, of attorney to confess judgment—Application" for' restitution—
Fraud—Civil Procedure Code, s. $1.
Proceedings by way of restitutio in integrum will not be enter*fcained to set aside a judgment given in pursuance of a warrant ofattorney to confess judgment, except in the case of fraud or afundamental departure from the terms of section 31 of the CivilProcedure Code.
If a creditor acts unlawfully upon a warrant' of attorney to ■confess judgment, he does so at his peril, and it is open to the person'damnified to proceed against such creditor in an appropriate action.
X application by way of restitutio'in integrum to set'aside a%judgment entered in pursuance of a power of attorney to
confess judgment on two grounds, viz., first, that in the judgmentwhich was recovered on a mortgage bond it was not intended toinclude money advanced on a promissory note; and second, thatthe attorney to whom the warrant was issued consented to an orderfor sale at once, and waived the requirements of section 201 of theCivil Procedure that a date should be' fixed and an opportunity;given for redemption up to that date.*«
Keunemm, in support.
Drieberg, K.C., with Peri Sundcram; -contra.*-
( 468 )
‘August 4, 1924. Bertram C.J.—
There is a growing tendency to appeal to this Court and to invokethe special procedure of restitutio in integrum by persons againstwhom judgments have been entered up in pursuance of their ownwarrants of attorney. This is an encroachment which, in myopinion, should be definitely resisted- This special procedure wasnever intended to allow applications of this sort to be made.
In the present case the judgment-debtor challenges the proceed-ings on two grounds; judgment was recovered on the mortgagebond, and he contends, in the first place, that it was never intendedthat money advanced on a promissory note payable on demandshould be recoverable under the bond. The second point is that theattorney to whom the warrant of attorney was issued consented toan order for sale at once, and waived the requirements of section 201of the Civil Procedure Code that a date should be fixed and anopportunity afforded for redemption up to that date.
With regard to the first of these points, in our opinion it is quiteunsubstantial. We do not think that it was a condition precedentof the right to recover on the bond that the money had beenadvanced on a promissory note, and that that promissory note wasonly payable on a fixed date.
Wijh regard to the second of these, points, it may very well bethaifthe attorney in this case did what he ought not to have done;and it may yery well be that the person who gave him the warrantof attorney has some remedy against him. But it is intolerablethat on this procedure of this special nature we should be asked toentertain complaints with regard to defects in accounts pr imperfec-tions in the proceedings of the attorney, but more so, as the Codeitself, by virtue of Form No. 12 in the schedule, expressly empowersthe person who obtains judgments in this manner to obtain fromthe attorney a release in respect of defects and imperfections whichshall be binding upon the judgment-debtor. Further, when anapplication has been made to us on this special procedure allegingdefinite grounds for relief, we cannot allow an applicant to gooutside the grounds specified, and to raise large and importantpoints which require careful consideration and argument, and ofwhich those who came to justify the . judgment ought to havedefinite notice. Thus, in this case Mr. Keuneman seeks to raise afurther point that judgment can only be entered up on a warrant ofattorney of this nature for an ascertained fsum actually stated inthe warrant of attorney. I express no opinion on this point. I donot think that it can be raised on the present application. Theobject of warrants of attorney is to preclude such disputes as havebeen raised in this case from arising. Warrants of attorney areintended to tie the hands of debtors, and if debtors take the risk ofgiving these documents, they must consent to their hands being tied.
( 469 )
We should be frustrating a procedure authorized by law if weallowed parties, who give these documents, to raise any dispute bythe simple process of an application of this character. Warrants ofattorney, no doubt, must be strictly construed, and if a creditorunlawfully acts upon a warrant of attorney, or upon a faultywarrant of attorney, he does so at his peril. But that is a matterwhich must be pursued in other proceedings. If an applicationwas made to us on the ground of some gross definite fraud, and aprimd facie case of such fraud was established, no doubt we couldgrant relief. It may very well, too, be that we could grant reliefif it were shown th£t in the warrant of attorney in question there wassome fundamental departure from the terms of the Code, so that theproceedings could not be considered as being taken in pursuance ofsection 31 at all. • Such a question may be considered when itarises; but with regard to the present application, in my opinion,it should be dismissed with costs.
Schxeider J.—I agree.
SUBRAMANIAM CHETTY v. NAIDU