144-NLR-NLR-V-23-NARAYAN-CHETTY-v.-AZEEZ.pdf
( 477 )
Present: Bertram C. J. and De' Sampayo J.NARAYAN CHESTY v. AZEEZ.
48—D. C. GaOe, 18,007.
1921.
Restitutio in integrum—Proctor consenting to judgment contrary toinstructions—Appeal.
If a litigant alleges 'that his proctor by mistake or negligencehas consented to a judgment contrary to his instructions, hisremedy is not by way of appeal, but by way of application to theSupreme Court for restitutio in integrum.
rJTELE facts are stated as follows in the petition of appeal:—
This was an action in realization of a mortgage executed by thefirst defendant-appellant and another in favour of the plaintiff-respond-ent for the recovery of a sum of Rs. 1,072*47 being balance principaland interest due in respect thereof by the appellant to respondent. 1
1 {1916)18 N. L,. R 168.
( 478 )
1921.
NarayanChtUy v.Azeez
The res|; ndent by an averment contained in the 4th paragraphof tho plaint filed by him, alleged that tin* first- and the second-namedproperties of those mortgaged with him by ajipellai.it had been releasedfrom the operation of the bond sued on.
The appellant- to the contrary contended that house No. 58 hadalso been released, and prayed for its exclusion from the operation ojany decree that might 1m* entered in plaint ilT's favour in this action. andpleaded deed of release No. .270 of January 12.1018, in support thereof.
The case came on for trial on Xovomh.-r i 7. on which date, in the
absenco of the first defendant-appellant (who had duly furnished bisproctor with a medical certificate obtained from the Judicial MedicalOfficer of Gallo with instructions to him to mow tor a postponement),the learned District- Judge, upon a statement made by th^ said proctor,based on a misapprehension that ho gave up the contest, entered judg-ment for the plaintiff-respondent ns prayed for ….
The application for a postponement mod'* by appellant's proctoron the certificate referred to above, filed of record, it is submitted, shouldhave been allowed.
Uni >rtnnately for appellant the Court has failed to make a recordof either tho fact of a certificate having been produced,, or of anyapplication made for a postponement to substantiate both, which factsthe appellant undertakes to furnish on affidavit at the hearing of theappeal.
It is submitted that if the postponement mov.ed for had beenallowed, the appellant would have been afforded the opportunity ofgiving accurate instructions oo his proctor and avoiding his acting on.the misapprehension he did in giving up the contest.
Abdul Cadet, for the appellant.
J. S. Jayawardene, for the respondent.
October 4, 1921. Bertram C.J.—
In this case the appellant, assuming he is right on his facts, liasmisconceived his remedy. It is now settled law (see Arumugam v.Seeni Mokamado1 and Sinnataniby v. NdUatamby*) that, if alitigant alleges that his proctor by mistake or negligence has con-sented to a judgment contrary to his instructions, his remedy isnot by way of appeal, but by way of application to this Court forrestitutio in integrum. In my opinion the appeal must be dismissed,with liberty to the appellant to apply to this Court in the mannerindicated.
The appeal should be dismissed, with costs.
Db Sampayo J.—I agree.
Appeal dismissed.
1 2 0*. L. h. IS.
M2904) 7N.L. R. 239.