067-NLR-NLR-V-28-DE-SILVA-v.-VADUGANATHAN-CHETTY-et-al.pdf
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Present; Dalton .T. and Jayewanlene A.J.
DE SILVA r. VADUGANATHAN OHETTY et ^
D. C- Colombo, 18,001, •Restitutio in integrum—Warrant of ailofury lo coiifrsh jtultfincul onmortgage bond—Money decree—‘Sum in excess of amount inwarrant-irregularity.
A warrant of attorney to confess judgment on u mortgagebond include^ authority to consent lo a money decree beingentered on the bond.
Consenting to judgment on a warrant of attorney for a largersum than is mentioned in the warrant does not render the judg-ment a nullity. It is only an irregularity that- is capable ol'amendment.
Where judgment was entered for a sum in excess of the amountgiven in the warrant and it appeared that that sum was justly due.the Supreme Court refused to entertain an application for restitutioife integrum to amend the decree.
A
PPLICATION by way of restitutio in integrum to set asidethe decree entered in the case.
The facts appear from the judgment.
De Zoysa, in support.
If. F. Perera, oontra.March 29, 1926. Daltox J.—
This is an application by way of restitutio in integrum to setaside a decree entered in this case, recalling the writ issued, anddeclaring that the petitioner be allowed to defend the action.
The facts are as follows: the petitioner/(defendant in the action)mortgaged on October 19, 1925, certain property to VaduganathanChetfcy and Letchiman Chetty, binding himself tjo pay to them allsums of money advanced not exceeding Bs. 3,500. On the same,day he executed a warrant to confess judgment for that sum infavour of a proctor named therein.*
On October 31, 1925, the mortgagees filed a claim againstthe petitioner, alleging that the sum of Bs. 3,519.38 together withinterest was due to them on the bond. The reason they give forbringing the action so soon after the execution of the bond is thatthey had received information that petitioner was not the lawfulowner of the property he had mortgaged to them.
1926.
1886.
Daitost J.
DeS&vo*.Vadugana-than Oheihj
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On the same date the proctor for the plaintiffs, mortgagees,filed a minute of consent purporting to be signed by the defendant’sproctor, filing warrant of attorney to confess judgment, and con-senting to judgment as prayed for in the plaint. Judgment wasentered accordingly on the same day, plaintiffs obtaining a moneydecree and not a hypothecary decree.
In support of the application Mr. de Zoysa has urged threegrounds, the first being that an hypothecary decree only shouldhave been granted. There is nothing in the warrant of attorneywhich would limit the powers of the attorney in this way. Itis admitted that in the ordinary course in an action on a mortgagebond the successful plaintiff is entitled to both decrees if he asksfor them, and I can see nothing in this case to take it out of thegeneral rule. It is well to recall here the words of Bertram C: J.in Subramattiam Chetty v. Naidul: —
“ Warrants of attorney axe intended to tie the hands of debtors,and if the debtors take the risk of giving these documentsthey must consent to their hands being tied.”
He also points out that the Code expressly empowers the personwho obtains judgment in this manner to obtain from the attorneya release in respect of defects and imperfection^ which shall bebinding upon the judgment debtor.
The second point refers to the terms of the power, which authorizethe attorney ” to appear for me …. and to receive summonsfor me in an action for Rs. 3,500.” Nip summons was receivedhere, and hence it is argued the act of the Attorney was bad.This same point was taken in Rammuithan v. Don Cardlis,2 and asthere, so here, there is no substance in the objection. In thatcase de Sampayo J. says: —
"It is next objected that, as the warrant of attorney authorizedthe proctor to appear (for the defendant and to receivesummons for him and therefore to confess judgment,and as no summons was served on Mr. Swan (defendant'sproctor) he had no authority of confess judgment. Thereis no doubt that the terms of a warrant must be compliedwith. But a summons is intended to inform a party ofthe institution of an action and of the nature of the claim.The written consent of Mr. Swan shows that he hadseen the actual plaint, which is even better for thatpurpose that the summons, and I think there is nosubstance in this objection.”
– Lastly, it was urged that as the warrant authorized the attorneyto confess judgment in the sum of Rs. 8,500 only, he has in confess-ing judgment for Rs. 3,519.38 acted beyond his authority, and
1 26'. R. 467.* 10 .V. /.. R. 378.
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his act is wholly bad, and this Court has no power to alter thedecree, the judgment being void. There is authority governingthis point also in the case of Stop fort v. Fritzgrrahl,l where itwas held that signing judgment on a warrant of attorney for asum larger than that mentioned in the warrant is only an irregu-larity, and the judgment is not a nullity but can be amended.
Under the circumstances here, as there is no suggestion tlmtthe whole sum of Bs. 3,519.38 is not due by the defendant, butit is admitted, although not on the bond, having regard to thefact that there is also a small sum in interest due on the Es. 3,500,and lastly, having regard to the nature of the remedy sought,based upon natural equity and the injustice of respondent’s case(Voet IV. tit. 1 s. 1), I am of opinion this Court should leave thejudgment as it stands and dismiss the application, with costs.
Jayewardexe A..J.—I agree.
1926.
Dalton J,
JJe Silva v.Vadugana-than Ghetoj
Application refused.