076-NLR-NLR-V-36-NEIYAPPA-CHETTIAR-v.-SEYDU-LEBBE-et-al.pdf
MACDONELL CJ.—Neiyappa Chettiar v. Seyadu Lebbe.
367
1934Present: Macdoneli C.J. and Drieberg J.
NEIYAPPA CHETTIAR v. SEYADU LEBBE et al.
23—D. C. Kandy, 43£36.
Money Lending Ordinance—Action on mortgage bond—Application for reliefafter decree—Power of Court—Ordinance No. 2 of 1918, s. 2 (I).
The power given to a Court to re-open a transaction under section2 (1) of the Money Lending Ordinance cannot be exercised after decreein the action.
^^PPEAL from an order of the District Judge of Kandy.
H. V. Per era, for first defendant, appellant.
Weerasooria, for respondent.
July 31, 1934. Macdonell C.J.—
This is an application for relief under section 2 (1) of the MoneyLending Ordinance, No. 2 of 1918. The outline of the case was this.The plaintiff having from the defendants a mortgage bond put the samein suit on December 13, 1932. Summons was served on the firstdefendant, who is the present appellant, on January 30, 1933. He thenobtained time to file proxy and answer on February 17. He obtainedvarious extensions of time for the filing of proxy and answer, and thereason he gave for not filing answer was that no summons had been yetserved on the second defendant and that he wanted to make a jointdefence with the second defendant, but it appeared later that the
1 35 N. L. R. 313.
368MACDONELL QtJ.—yNefyappa Chettiar v. Seyadu Lebbe.
second defendant professed t'ca have interest adverse to his. Eventuallyon August 14, 1933, fWafien proxy and answer were due, his proctorappeared in Court and said he had no instructions. The case was thenfixed for ex parte hearing and on September 7, 1933, the plaintiff obtaineddecree absolute. Then on October 6, 1933, the first defendant, thepresent appellant, moved for an accounting under the Money LendingOrdinance, No. 2 of 1918. The matter coming on before the learnedJudge he refused the petition in a considered judgment of December 14,1933. The section sought to be invoked, 2 (1) of Ordinance No. 2 of 1918,states that where proceedings are taken in any Court for the recoveryof any ihoney lent, and there is evidence which satisfies the Court ofthe existence of one or more of the mischiefs set out in sub-sections(a), (b), and (c), then the Court may “ re-open a transaction ”, andtake an accounting between the lender and the person sued. The sectionalso gives certain powers consequential thereto. But the scope of thesection clearly seems to refer to a stage in the action before the decreehas been obtained. It gives the Court power after action is brought tore-open the transaction but there does not seem to be anything in thesection to give the Court power to re-open a decree which it has madein a mortgage bond suit or on any other claim for money lent. In theabsence of any such power given by the section the District Court had nopower to interfere with its own decree. This is an appeal from a refusalof the District Court to interfere with its own decree, and it is sufficient tosay that that refusal was right, and if so, this appeal must be dismissedwith costs.
Drzeberg J.—I agree.
Appeal dismissed.
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