DRIEBERG- J.—Ibrahim v. Seyadu Mohamadu.
1931Present : Drieberg and Akbar JJ.IBRAHIM v. SETAD.U MOHAMADU.
396—D. C. Puttalanv, -1,180.
Warrant of attorney to confess judgment—Authority to confesss on mortgage bond—Conditions of bond not included in the warrant—Is the warrant valid?
A creditor to whom a warrant of attorney to confess jadgment is givenby a debtor cannot be prevented from obtaining judgment on the warranton the ground that certain conditions of the mortgage bond, on whichthe right of recovery depended, have not been fulfilled, unless thoseconditions were included in the warrant itself.
Y a mortgage bond, D, the appellant became liable to the respondentin a sum of Rs. 66,854 to be paid by instalments. On the same
day the appellant granted to Mr. Strong, a proctor, a warrant of attorneyto confess judgment.
The bond provided that, if default was made in payment of an instal-ment, the appellant was to be given one month’s time for payment beforebringing an action on the bond. The appellant made default in the firstinstalment whioh was payable on June 3, 1930, and the respondent gavenotice that if appellant did not pay by July 3, 1930, he would sue on thebond.
On July 2 the appellant brought this action to have the warrant ofattorney declared null and void.
The appeal is from the order of the District Judge dismissing theaction.
Keuneman, for plaintiff, appellant.—The bond D is subject to acondition, this condition is not incorporated in the warrant of attorneyand the warrant is therefore null and void.
The condition set out in the bond must be regarded as a conditionsubject to which the warrant was given (section 32, Civil ProcedureCode). The warrant must be used to confess judgment only for theprecise amount shown on the 'face of it as due and payable. The sumset out in the warrant is not the correct sum due.
H. V. Perera, for respondent.—This warrant is based on the form givenin Volume II., Key and Elphinstone, p. 196.
The condition referred to- in section 32, Civil Procedure Code, is onesubject to which the warrant itself is given.
A debtor can assent to judgment though he may- have grounds on whichto defend the action and by the warrant he can give the attorney thesame power.
A-debtor has no control over the warrant once it is duly executed anddelivered to the creditor (Bamanathan v. Don Carolis1).
October 22, 1931. Dbiebebg J.—
By a mortgage bond, Dl, of December 3, 1929, the appellant becameliable to the respondent in a sum of Rs. 66,854, which was to be repaid
1 (.1917) 19 N. L. B. 378.
DBIEBERG J.—Ibrahim t. Seyadu Mohamadu.
by instalments; on .the same day the appellant granted to Mr. Strongra proctor, a warrant of attorney to confess judgment in any action filed,on the bond.
The bond provided that, if default was. made in payment of an instal-ment, the appellant was to be given one month's time for payment beforebringing action on the bond. The appellant made default in the firstinstalment which was payable on June 3, 1930, and the respondent gavethe' appellant notice that if he did not pay by July 3, he would sue onthe bond.
On July 2 the appellant brought this action to have the warrant ofattorney declared null and void and for an injunction restraining therespondent, while this action was pending, from using the warrant forthe purpose of obtaining judgment on the bond.
During the pendency of these proceedings the respondent on July 11^1930, filed action on the bond Dl, but the matter has not, I understand-,been, proceeded with beyond the presentation of the plaint.
One ground was that the terms of the warrant had not been fullyexplained to him in accordance with section 31 of the Civil Procedure’Code. The learned District Judge, in dismissing the action, has heldagainst the appellant on this point, and in my opinion rightly.
The other, grounds advanced by the appellant were that the warrantwas subject to a condition or defeasance, that this was not embodied in thewarrant, and that the warrant was for that reason null and void. It wasalso said that the warrant was fraudulently obtained to secure a confessionof judgment for a larger sum than was due and, further, that the sumactually due was not correctly set out in the warrant..
I shall deal with the question of the defeasance later. The objectionsrelating to the amount stated in. the bond are connected with the con-sideration for which the bond was granted.
At the date of the execution of the bond Dl the appellant owed the*respondent a sum of Rs. 35,635.25 on a judgment against him and beowed Muttiah Chetty and another Rs. 31,218.75 on a mortgage bondNo. 5,828 of August 26, 1927, of certain leasehold interests; this sumrepresented the principal and interest up to the date of the bond Dl.Dl was for Rs. 66,854, the aggregate of these sums, the respondent agreeingto pay to the creditors on bond No. 5,828 the amount due to them andredeem the mortgage. By Dl the appellant gave the respondent amortgage, described as a primary one, of the property mortgaged underbond No. 5,828. It is admitted that the respondent has paid the creditorson bond No. 5,828 a sum of Rs. 10,000 only. The warrant, D2, authorizedMr. Strong to receive summons for “me in any action for Rs. 133,692
There is no substance in the objection that the warrant is made outfor the sum of Rs. 133,692. It was clearly intended to enter in thewarrant the maximum sum the respondent could recover on the bond,the principal and interest not exceeding the principal. The warranttherefore could have been for Rs. 133,708.
As regards the failure of the respondent to pay the whole of the amountdue on bond No. 5,828 and redeem it Mr. Keuneman contends that this
DRIEBERG J.—Ibrahim v. Seyadu Mohamadu.
was a condition on whch the appellant's liability on the bond dependedand was a condition to which the warrant of attorney was subject andas i.t was not stated in it; the warrant was null and void.
Unless the failure of the respondent to pay the creditors on bondNo. 5,828 is a condition to which the warrant is subject, it is a matterwith which the Court is not concerned in this action. It would, at themost, if the appellant were sued in the usual way, enable him to pleadthat he had not received the full consideration on the bond, but theappellant cannot ask that the warrant be declared null and void on theground that the respondent intends to use it to obtain a larger sum thanis due. But there is no substance in this objection. It appears fromthe affidavit of the respondent that he recognizes his obligation to paythe creditors on bond No. 5,828 and in his own interests he must do sofor his mortgage is subject to theirs; nor can the appellant be prejudiced,,for if he can pay the amount of the respondent's bond, he can pay itinto Court and have, what is necessary set apart for the creditors on bondNo. 5,828. He can protect himself as well if the properties are- sold inexecution and the proceeds of sale are in Court, or when the respondentmakes application for execution.
It is contended for the appellant that the conditions oh which hisliability to be sued depended must be regarded as conditions subject towhich the warrant was granted.
It is said that the provision in the bond that if the appellant madedefault in the payment of an instalment he should be allowed a monthwithin which to pay it was a condition on which the respondent’s rightto sue depended and as such it was a condition of the warrant and shouldhave been entered in it. A similar argument is advanced as regardsthe undertaking by the respondent to pay the creditors on bondNo. 5,828.
The condition or defeasance referred to in section 32 of the Civil Pro-cedure Code is one subject to which the warrant is given; it might be acondition that no action should be taken on the judgment unless certainconditions were satisfied. An example of such a condition is to be foundin the form No. 13 in the second schedule of the Civil Procedure Code;the Code itself contains no reference to this form which is based onthat given on page 198 of Volume I/., of Key and. Klphinstone’s Precedentsof Conveyancing (6th ed.). Or it may be ‘ agreed that the warrantshould not be used until some condition was satisfied. But the conditionsof the bond on which the liability of the debtor depends are not neces-sarily the conditions to which the warrant is subject unless it is so expresslyagreed and the trial Judge has found that it was not given subject to anycondition or defeasance.
But it is contended that the warrant must necessarily be regarded asgiven subject to all the conditions contained in the bond on which theright to sue depends; but this is not so, for it would defeat the wholeobject and purpose of this procedure. A debtor- can consent to judgmentthough there may be grounds such as these on which he can defend theaction, and by the warrant he gives the attorney the same power of
MACDONELL C.J.—Wijeeuriya u. Lye.
consenting .to it. When a debtor has duly executed and delivered to thecreditor a warrant of attorney to confess judgment he has no longer anycontrol over its operation (Eamanathan v. Don Garolis1).
If the creditor were to obtain judgment for a sum not due or for alarger sum than is due he renders himself liable to a prosecution undersection 207 of the Penal Code; but he cannot be prevented from gettingjudgment for the amount due to him on the ground that certain conditionsof the bond on which the right of recovery depended have not beensatisfied unless the warrant of attorney was given subject to thoseconditions.
The appeal is dismissed with costs.
Akbar J.—I agree.
IBRAHIM v. SEYADU MAHAMADU