084-NLR-NLR-V-38-KUMARIHAMY-v.-PUNCHI-MENIKA.pdf
ABRAHAMS C.J.—Kumarihamy v. Punchi Menika.
385
1936Present: Abrahams C.J. and Koch J.
KUMARIHAMY v. PUNCHI MENIKA.
165—D. C. Ratnapura, 5,727.
Decree entered of consent against attorney—Power of attorney not valid—Application to set aside—Decree—Irregularity not fatal—Civil ProcedureCode, s. 25 (b).
Where judgment was entered of consent against a defendant, whoappeared by an attorney whose power of attorney was found to beinvalid,—
Held, that the irregularity did not vitiate the proceedings unless theirregularity affected the merits of the case or the jurisdiction of theCourt.
^^PPEAL from a judgment of the District Judge of Ratnapura.
N. E. Weerasooria (with him Pandita Gunawardene), for appellant,defendant.
H. V. Perera, for respondent.
July 23, 1936. Abrahams C.J.—
The appellant was the defendant in the Court below and the summonsin the action was served upon her. She had given a general powe(r of_,
ISJ. H. B 82999 (1/M)
386KOCH J.—Kumarihamy v. Punchi Menika.
attorney to her husband which, had she complied with the provisionsof section 25 (b) of the Civil Procedure Code, would have constitutedhim her recognized agent for the purposes of the action. In the circum-stances it failed to have that effect. The husband gave a proxy to aproctor who, when the case was called, consented to judgment. Afterthe consequential decree, the appellant’s property was ordered to besold and was sold, but before confirmation the appellant unsuccessfullyapplied to have the decree and sale set aside.
It is argued for the appellant that as the power of attorney did notin law constitute the appellant’s husband her recognized agent, theproxy was invalid, the consent to judgment was invalid and the conse-quential decrees were void. It is an astonishing submission that theappellant makes. She does not complain that the learned DistrictJudge has done anything to her prejudice on the motion of the oppositeparty or suo proprio motu, she complains apparently that he had actedin the belief that she had succeeded in doing in law what she hadendeavoured to do, or in other words she complains that, he ought notto have accepted the representations made to him at the appellant’s owninstance.
Fortunately for the better administration of justice the appellant’scontention is defeated by the exposure of the fallacy upon which it rests.In my opinion the decree is not void. The learned District Judgewhether he was misled in some way into, believing that the appellant’shusband was her recognized agent, or whether in the circumstances hetook it for granted, had jurisdiction in respect of the defendant and thesubject-matter of the action, and had therefore power to make thedecree. It has not been argued that the decree apart from the technicaldefect in question, was an improper one to make, its invalidity aloneis relied upon. I am of the opinion that the appellant’s submissionfails and that the appeal should be dismissed with costs.
Koch J.—
The appeal is from an order of the District Judge dismissing the appli-cation of the appellant to have a decree entered against her vacated andproceedings held thereunder declared null and void. This decree wasrecorded on November 9, 1932, in favour of the plaintiff. In the journalthe entry of that day reads thus, “ Defendant present. Defendantconsents to judgment ”. If this is an accurate entry of fact, the defendantwill have no grievance but the defendant in her affidavit, which shepresented in support of her application made 2£ years later, has ratherdisguisedly sought to take up the position that she was not present inCourt on the day this decree was entered. The particular paragraphthat refers to this is paragraph 2. It runs thus :—“ On the 9th day ofNovember, 1932, judgment has been entered against the petitioner in herabsence consequent -upon consent given by the attorney ”. It will beseen that the defendant does not definitely state that she was notpersonally present that day in Court, and that the entry made by theDistrict Judge was, in point of fact, inaccurate. She would rather appearto suggest that absence on her. part should be inferred, because on Sept-ember 19, 1932, the day fixed for the ex parte trial, Mr. Proctor Delgoda
KOCH J.—Kumarihamy v. Punchi Menika.
387
filed a proxy from her husband and attorney, and moved to file answer,and on the day fixed for the filing of answer moved for an extension. Tomake matters worse for her she did not dare at this inquiry to enter thewitness box and affirmatively deny her presence in Court on the daydecree was entered against her. Her husband was the only witnesscalled. He did not impress the District Judge and on this evidence thelearned Judge was not prepared, and, rightly so, to hold that the defendantwas not personally present in Court. We therefore have a solemn entry inthe record made 2£ years earlier that the defendant was present, consentedto a decree being entered against her on the one hand, and no laterfinding on the other hand that this was an. inaccurate entry. Thedefendant cannot complain of the way the inquiring Judge expressedhimself, as she was solely to blame for not being present at the inquiryand helping the Court to arrive at a definite finding as to her presence orabsence on the date in question. This being the position, the entry onSeptember 9 must stand as its accuracy has not been successfully chal-lenged. It follows that the decree entered is in order and the proceedingstaken thereunder good and valid.
I would wish however to state in addition that the evidence of thedefendant’s husband forfeits defendant’s claim to sympathetic considera-tion. The bond sued upon in the case was executed by her husband whoacted on a power of attorney granted to him. She was admittedly servedwith summons but did not appear. She permitted and authorized herhusband to appear for her and obtain leave to file answer. She author-ized her husband to apply for and obtain time to discharge the decree.She authorized her husband to apply for and obtain stay of sale inexecution on several occasions. She allowed her husband to make partpayments on the decree which, she was aware, was entered against her.After obtaining concessions right through this period of 2£ years shenow seeks to upset all steps that followed on the decree, on the groundthat the power of attorney granted to her husband was a general one,and that he was not therefore her recognized agent in law to appearfor her under section 25 (2) of the Civil Procedure Code. It would bemonstrous in my opinion to permit her in these circumstances to takeadvantage of this irregularity to the prejudice of the plaintiff and thepurchasers of property sold under the decree, the validity of which isquestioned at this late date.
I see no reason why the opinion expressed in Segu Mohamadu v. Govin-den Kangany1 should not apply. There Wood Renton C.J. approved ofthe finding in Bisandas Valad Majmnan v. Lakmichand KisamchandJ,which was to the effect that an irregularity of this nature should not bepermitted to vitiate the proceedings unless such irregularity affected themerits of the case or the jurisdiction of the Court. In the case before us,the Court clearly had jurisdiction and the defendant having receivedsummons was made amenable to that jurisdiction. She failed to answerher summons and thereby placed herself in default. The point raised inthis appeal is devoid of merit and the appeal must be dismissed with costs.
Appeal dismissed.
* 6 Bombay High Court Reports. 159.
* 2 Leader 61.