157-NLR-NLR-V-23-JAYASURIYA-v.-KOTALAWALA-et-al.pdf
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Pr&ent: Bertram C. J. and Schneider J.JAYASUBIYA c. KOTALAWALA et al.17—D. C. (Inty.) Kalviara, 6,373.
Defendant in prison—Default of appearance due to being deceived byplaintiff—Application to re-open judgment—Civil Procedure•Code, e. 37—" Misfortune
The defendant ■was in prison when he was sued on a bond.Being deceived by plaintiff he made no effort to appear in theaction, and judgment was entered for plaintiff. He moved tore-open judgment.
Held, that his proper remedy was either to apply for restitutio inintegrum or to seek damages for the fraud.
“ The reason why the defendant did not appear in the actionwas not that he was prevented by misfortune, but that he wasdeceived and defrauded …. The fact that a man isdeceived by fraudulent representations cannot be construed as amisfortune preventing him from appearing to show cause.”
r 11HE facte appear from the judgment.J. 8. Jayawardme, for the appellant.
Wijematme, for the respondents.
March 30,1922. Bertram C.J.—
This is a case in which the learned Judge refused an applicationthat notice should issue upon the plaintiff in a mortgage action,who had recovered judgment in that action and was seeking toissue execution, to show cause why the judgment and decree shouldnot be re-opened, and why the present appellant shouIcTfrct beallowed to file answer. It appears from a statement of the facts
1922.
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1922.made to ns by Mr. J. 8. Jayawawlene in this case that the appellant
was in prison, and that while in prison he exetatted a mortgage!aj> bond, and while still in 'prison made default in appetence inai£fayamriya *?ti6n on that bond. Th&reason why H^ zOade default was that he«. was deceived either byjftie plaintiff or by his son, and being soKotalawdla deceived he mad© no effort to appear in the action, though he might
Mr. Jay&wardene wiahesus to say that these facts are withinsection 87 of the Civil Procedure Code, and that on these fycts itought to be held that his client was prevented from appearing toshow oause in the District Court by reason of an accident ormisfortime. It is no doubt the case that at the time in questionthe appellant was suffering from misfortune. It is also no doubtthe case that that misfortune facilitated his beyig deceived. Butthe reason why he did not appear in the action was hot that he wasprevented by misfortune, but that he was deceived and defraudedby thf person referred to. It does not appear to me that the factscome within the section, and I think that the learned Judge wasperfectly right in ruling that the present appellant 1ms misconceivedhis remedy. ' I will assume in the appellant’s favour that, althoughthe delay was considerable, there, is a reasonable explanation forthe delay, But that is hot the real point on which the case turns.The fact that a man is deceived. by fraudulent representationscannot be construed as a misfortune preventing him from appearingto show cause. His proper remedy is to apply either for restitutioin integrum or to seek damages for the fraud. Mr. Jay&wardene*asks us tg say that the Court has an inherent power to set aside adecree issued ex paste. That may be so where the. person againstwhom decree is entered has had no notice of the action. It doesnot apply where judgment is entered by default.
In my opinion the appeal must be dismissed, with costs.
Sohnucdur J.—I agree.
Appeal dismissed.
JS, S, COTTLE, GOVERNMENT FRENZBB, COLOMBO, CEYLON.