( 411 )
Present: Pereira J. aud Ennis J.
PERERA et al. v. WIJEWICKREME ct at.
C. Colombo, 33,559.
Restitutio iu integrum—Remedy not open to persons who were not partiesto the legal proceedings sought to be ' opened up—Remedy does notlie when any other remedy is available.
Restitutio in integrum is not granted in Ceylon if the applicant hasany other remedy equally effectual open to him.
The remedy can be availed of only by those who were actuallyparties to the contracts or legal proceedings in respect of whichrestitution is desired.
Wherethe heirsofanintestatealleged thatthe administratrix
had, infraudulentcollusionwith theplaintiff ina case in which
she was sued in her capacity as administratrix, allowed decree to beenteredin favouroftheplaintiffand appliedfor restitutio in
Held, that the heirs were not entitled to restitution, as they werenot parties to thecase;theheirs might bring anaction against the
administratrix and the plaintiff.
i 1 s. C. C- 69.s 9 N. L. R. 131.
( 412 )
1912.Pereiba J.— Quasre^ whether the Koman-Dotchlaw remedy of
Perera v restitutio in integrum' has not been impliedly abrogated by theWijewick- provisions of the Civil Procedure Code?
rem*Assuming that the Supreme Court has still the power to allow
this remedy, it is a power which should be most cautiously andsparingly exercised, considering-' especially that our information isvery limited ' as to the exact -procedure to be adopted in investiga-tion^ necessary to give effect to the remedy,fjl HE facts are set out in tEe judgment of Pereira J.
A. St. V. Jayewardene, for applicants.
Bawa, K.G., for second respondent.
Weinman, for first respondent.
Cur. adv. null.
September 26, 1912. Pebeiba J.—
The appheants describe themselves as “ the heirs at law of oneLiyanage Aron Perera, who died intestate on or about JanuaryS, 1911. ” They complain that the first respondent, who is thewidow and administratrix of the estate of Aron Perera, in fraudulentcollusion with the second respondent, allowed, in case No. 37,559of the District Cpurt of Colombo, judgment to go in favour of thesecond respondent against her (the first respondent) as administra-trix of the estate of the deceased Aron; and the applicants praythat they may be allowed to intervene in the action referred toabove, and that, after the necessary proceedings, the parties to theaction be restored to their rights existing prior to the decree in it.In other words, their prayer, as they themselves state in the headingof their application, is for the well-known remedy under the Boman-Dutch law of restitutio in integrum. This was an extraordinaryremedy, even under the Boman-Dutch law, allowed for good grounds,which, in the case of contracts, were limited to fear, violence, fraud,minority, absence, excusable error, and prejudice in above half thevalue of a thing alienated, and to such equitable grounds as justifiedthe reduction of cancellation of the contract (Voet 4, 1, 26; V. d. L.1, 18, 10). It was also allowed in the case of certain incidents of asuit, as, for instance, when circumstances showed that the- applicantshould be permitted a fresh opportunity of proof or to bring newfacts to the notice of the Court (Voet 4, 1, 34), and it was not grantedunless no other remedy was available to the applicant or unlessrestitution was the more effectual remedy (Voet 4, 1, 13, 14).
The remedy was nearly the same as rescission in English law. Ithas been held .that direct application may be made to the SupremeCourt for this remedy, and that it is within the power of the SupremeCourt to grant it, and, to enable it to do so, to refer applications to
( )tile lower courts for inquiry and report. I am not ‘sure that thisremedy has not been impliedly abrogated by the Civil' ProcedureCode, which allows a regular action to be brought in the properCourt in respect of almost every conceivable act or omission resulting,inter alia, in the denial of a right, the refusal to fulfil an obligation,the neglect to perform a duty, or the infliction of an affirmativeinjury; and, moreover section 753 of the Civil Procedure Codegives the Supreme Court'ihe most extensive powers of revision by,either mero motu sup or otherwise, calling for, examining, anddealing with, as in appeal, the record of any case in any Court atany stage.
Assuming, however, that the Supreme Court has still the powerto allow the remedy of restitutio in integrum, it is a power which,in my opinion, should be most cautiously and sparingly exercised,considering especially that our information is very limited as tothe exact procedure to be adopted in investigations necessary togive effect to it. Anyway, as shown above, this antiquated remedyis not to be allowed where there is a remedy equally effectual opento the applicants. In the present case the applicants complain thatthey have been, or are likely to b.e, damnified owing to fraudulentlycollusive action on the part of the administratrix and the secondrespondent. If so, it is manifest that the applicant has a mosteffectual remedy by regular action in the District Court.
I am, further of opinion that the remedy of restitutio in integrumcan only be availed of by one who is actually a party to the contractor legal proceeding in respect of which restitution is desired.I asked Mr. Jayewardene whether he could cite authority to showthat the remedy was available to one who was no party to the"contract or legal proceeding, but who, possibly, might only beinjured by it. Since the argument in Court he has invited myattention in chambers to a passage in Voet’s Commentaries (4, lt 9).In that passage it.is no doubt laid down: “All who have beeninjured or prejudiced and have a Just cause of restitution can claimit, ” non constat that they may be strangers to the contract or legalproceeding in respect of which restitution is claimed. From whatVoet says earlier (4, I, 3), it appears to me that when restitutionis sought in respect of a legal proceeding, the applicant shouldbe somebody who already has had direct connection with thatproceeding.
For the reasons given above, I would disallow the present.application with costs.
This is an application for restitutio in integrum. It appears clearthat such an application is not granted in Ceylon if any other remedyis available.
( 414 )
In this case the applicants set up fraud and collusion against theadministratrix and her assignee. On these grounds an action isavailable against the administratrix and the assignee. Moreover,restitution of the case will only have the effect of putting the partiesin the position they were in before judgment was given, and theapplicants here were not parties in the case.
I would dismiss the application.
PERERA et al. v. WIJEWICKREME et al