106-NLR-NLR-V-40-PALANIAPPA-CHETTIAR-v.-HASSEN-LEBBE–et-al.pdf
Palaniappa Chettiar v. Hassen Lebbe.
408
1939
Present: Soertsz and de Kretser J'J.
PALANIAPPA CHETTIAR v. HASSEN LEBBE et al.
95—D. C. (Inty.) Colombo, 8,310.
(With application for Restitutio in Integrum.)
Warrant of attorney to confess judgment—Warrant in favour of a person, hisheirs, executors, and assigns—Validity of warrant—Civil ProcedureCode, ss. 31 and 32.
A warrant of attorney given to confess judgment in favour of a person,his heirs, executors, administrators, and assigns is invalid.
The warrant must be restricted to the form prescribed in section 31of the Civil Procedure Code.
HIS was an action by the assignee of a mortgage bond against
-L the mortgagor who had given a warrant of attorney to confessjudgment to the mortgagee, his heirs, executors, administrators, and
The question argued in appeal was whether the warrant' in favour ofthe creditor and his assigns was valid.
H. V. Perera, K.C. (with him N. E. Weerasooria, K.C., and U. A.Jay asundere), for defendants, appellants and petitioners.—The warrantof attorney to confess judgment is in a form which is not authorizedby the' Civil Procedure Code. Warrants of attorney to confess judgmentare extraordinary in their nature and owe their origin to English practice.They find no place in the Indian Code.
The warrant in question in the present case goes'beyond the scope ofthe warrant provided for in'section 31 of our Code. The sections dealingwith power of attorney to confess judgment have to be strictly construed.Section 31, by expressly mentioning form 12, gives statutory force to it.It is not possible to extend the form to a case not covered by it, e.g.,to an assignee, as has been attempted in this case. Except for defeasance,the English form is similar. The English form appears in Vol. VIII ofthe Encyclopedia of Forms and Precedents, p. 905 (1905 ed.). It may bepossible to give a warrant restricting the form mentioned in section 31of our Code, e.g., omitting executors and administrators. (Henshall v.Matthewl.)
N. Nadarajah (with him E. B. Wikremanayake), for plaintiff, respond-ent.—The parties have consented to the decree appealed from. A,District Court has no jurisdiction to set aside its own decree entered ofconsent, in pursuance of a warrant of attorney to confess judgment.(Van Twest v. GoonewardeneValiappa Chettiar v. Suppiah Pillai ’.)
A warrant of attorney to confess judgment need not be confined tocreditors and their executors and administrators only. A documentsimilar to the one in question was discussed in Vengadasalam Chetty v.Ana Fernando ‘.
' (1831) 7 Biru,ham’s Reports, 337.3 (1938) 10 C. L. W. 119.
s (V>30 33 K. L. B. 930.1 (1938) 38 V. L. R. 93.
T
assigns.
410
DE KRET5ER J.—Palaniappa Chettiar v. Hassen Lebbe.
If a creditor acts unlawfully upon a warrant, it is open to the persondamnified to proceed against him in an appropriate action. (SubramaniamChetty v. Naidu) So far as the present case is concerned, the consentof the parties is binding.
H. V. Perera, K.C., in reply.—In Vengadasalam Chetty v. Ana Fernando(supra) the question whether a warrant similar to the one under considera-tion now could be acted upon was not challenged. A warrant is voidwhich does not conform to the provisions of sections 31 and 32 of theCode. (Ramanathan v. Don Carolis “.)
Cur. adv. vult.
April 3, 1939. de Kretser J.—
These two matters were argued together as the appeal and the applica-tion were ancillary to each other and meant to prevent any possibletechnical objection to the hearing of the grievance which the appellanthad.
The point of law involved is whether a warrant of attorney to confessjudgment must be restricted to the form prescribed in section 31 of the’ Civil Procedure Code and cannot go beyond it though it may be lessextensive.
Warrants of attorney to confess judgment have now become obsoletein England. In view of certain matters which gave rise to the feelingthat they were being improperly used, provision was made by statutethat the debtor should always have independent legal assistance beforehe sighs such a warrant, and that it should be filed in a public officewithin 21 days of its execution, also that every defeasance or conditionshould be written on the same paper before the filing of the warrant in thepublic office.
Except for these matters warrants of attorney seem to have beenevolved in the course of practice. They find no place in the IndianCivil Procedure Code from which we borrow our Code, but they wereintroduced into Ceylon in the course of adopting the English practice,and in 1880 the Full Court of this Island recqgnized such warrants. Areference to this fact will be found in Venaithirthan Chetty v. SondeperuneArajichige Don Migel Jayatilleke Appuhamy *, where it was pointed outthat there should be limitation provided for in Ceylon similar to thoseprovided in England and the provision in the Civil Procedure Codefollowed shortly afterwards.
It had been the practice in England to scrutinize the authority veryclosely and to limit the use of the warrant. It is unnecessary to quotethe references and it is sufficient to say that a warrant of attorney handedto a creditor and empowering the attorney to confess judgment in a casebrought by him was not extended to a case brought by his personalrepresentatives. But when the warrant made provision for an actionbeing brought by the creditor or his personal representatives, then itwas held to be valid when used in such an action.
Curiously enough there is no instance of *a warrant enabling its usein an action by the creditor’s assigns.
» (1924) 26 N. L. It. 467.- (1917) 19 Y. it. 378.
e s. c. c. in.i.
411
DE KRETSER J.—Palaniappa Chettiar v. Hassen Lebbe.
A warrant of attorney to confess judgment, as far as I can see, seems tohave been regarded as a personal matter. It ended with the death of thedebtor; when once used it ended with the death of the particular attorneyor of one of them when it was in favour of two. (Garvin v. Abeya-wardene'.)
It could not be given by an agent on behalf of his principal even thoughspecifically authorized to do so. (National Bank of India, Ltd. v. GeorgeGOT.)
Therefore, the absence of any instances where such warrant was usedby assigns is not without significance, nor is the fact that in the formprovided for in our Code there is no contemplation of such a situation.
It is useless to speculate as to the reason for such a restriction. It maybe as Mr. Perera suggested that the debtor could trust the creditor andhis personal representatives, but should not be called upon to put himselfwithin the power of soma absolute stranger.
A warrant of attorney to confess judgment is in the nature of a security.In .this particular case, while the mortgage bond has been assigned to theplaintiffs, there has been no assignment of the warrant of attorney,and even assuming that a warrant of attorney may be used for the benefitof assigns, this can only be on the benefit being transferred to them.Here the assignment authorized the demand of the money and the grantof releases and discharges, but not the use of the warrant of attorney.On this ground too the use of it would be invalid.
But the main objection taken was that the only authority for the use ofsuch war rants was to be found in section 31 and 32 of the Code, and section31 having prescribed a form, nothing in excess of that form .could berecognized. I think that this argument is sound.
The District Judge was of opinion that the use of the word “ may ”in section 31 enabled a creditor to obtain a warrant in a form other thanthe one given in the Code. If the position had been that the Code was ■merely recognizing the validity of warrants of attorney, Which otherwiseby implication might be held to have been repealed by the Code, then ofcourse it may be argued that the form of the warrant was of no conse-quence, but if that were the position, the language used in section 31is inapt..'
I think that the section merely says that a warrant of attorney may ormay not be given, but if given, it should be in the form 12 in the Schedule.
In drawing up the form, the legislators probably had in view the utmostlimits to which the form had been extended in England, and they sawno reason to extend it any further in Ceylon. The combination of thewords “ executors, administrators and assigns " is so common that it ishardly likely they would have omitted the last word but for good reason.
It will be noted that the form is invoked in the section itself. Otherforms are given in the Schedule, as for example forms 10 and 11 to be usedin cases falling under sections 28 and 30, but these forms are not referredto in those sections. I think therefore that the form given in the section
must be substantially adhered to.
1 £4 N. L. R. 382.
J 32 K. L. R. 15.
412
Dunuwilla v. Poo la.
For the respondent it was contended that the judgment in Vengada-salam Chetty v. Ana Fernando1 recognized the validity o£ a warrant ofattorney such as the one we are now dealing with. I do not think that issound nor did my brother Soertsz who was one of the Bench which decidedthe case. Dalton A.C.J. introduced his remarks with the words “ it issufficient to say ” and he went on to hold that the particular warrant wasbad. He did not apply his mind to the question whether the form givenin the Code could be added to, nor does the reported argument of Counselindicate that the arguments proceeded on such a footing.
In my opinion all proceedings subsequent to the filing of the plaintshould be set aside and the case sent back to be proceeded with from thatstage if the plaintiff be so inclined.
As the power prima facie justified the attorney in confessing judgmentand the Court in acting on such confession, it seems to me that theremedy by way of restitutio in integrum is the proper one to adopt, butthis question was scarcely alluded to as this Court has been approachedby way of appeal also.
In the circumstances there should be no costs in this Court, but thedefendant is entitled to costs in the District Court.
Soertsz J.—I agree.
Appeal allowed.