095-NLR-NLR-V-19-RAMANATHAN-v.-DO-CAROLIS.pdf
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1917.
Present: Shaw and De Sampavo JJ.
RAMANATHAN v. DON CAROLIS.
10—D. C. (Inty-) Colombo, 46,710.
Warrant of attorney to confess judgment addressed to Proctor A or to anyother procto.r—Consent to judgment hy a proctor other than A—Agreement between debtor and creditor subsequent to execution ofbond and warrant to confess judgment—Warrant to confess judg-ment not properly explained by debtor's proctor—Civil ProcedureCodes, ss. SI and 32.
Where a debtor executed a warrant to confess judgment addressedto Proctor A or to any other proctor, and Proctor S, purportingto act under the said warrant, confessed judgment,—
Held, that Proctor S had' authority to confess judgment, thoughhe was not specially named in the warrant.
Shaw J.—“ The object of the warrant is to enable the plaintiffto obtain judgment and to put the document in the hands of anyproctor for the purpose.*’
Effect of ' debtor’s proctor not properly explaining terms of the •'warrant of attorney to confess judgment and of an agreement .between debtor and creditor subsequent to the warrant considered.
fpHE facts are set out in the judgment.
Bawa, K. C. (with him A. St. V. Jayewardene), for appellant.
E. W. jayewardene (with him Bartholomeusz and Samarawick-reme), for respondent. •
Cut. adv. vult.
March 4, 1917. Shaw J.—
This is an appeal from an order of the District Judge setting asidea .decree, entered on December 13, 1913, against the defendant byconsent, and giving defendant leave to file a defence in the action. ■The learned Judge df<5es not say unijLer what provision in the. Codehe purports to act, and I know of none authorizing him to set asidehis own decree, except in the case of a decree nisi under chapter XI'I.
The consent to the decree against the defendant was given on his;,,behalf by a Mr. Y. L. S. Swan as his proctor. This gentleman,purported to act under a warrant to confess judgment on a bond,:which warrant was executed by the defendant on May 13, 1916,and given by him to the plaintiff.
The warrant follows form No. 12 in the second schedule of theCivil Procedure Code, which is authorized to be used by section 31,and was addressed, as the form provides, to Oliver G. de Alwis,Proctor of the Supreme Court, or “to any other proctor of the saidCourt or of the District Court of Colombo, *’ and authorized:“ You,
the proctor above-named, or any other proctor of the said Court, “.to appear, &c. The District Judge appears to have thought that,
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notwithstanding the express terms of the warrant, only Mr. de Alwis,an<fr no other proctor, could appear under it and confess judgment.
' . am unable to agree. The object of the warrant is to enable theplaintiff to obtain judgment and to put the document in the handsof any proctor for the purpose.
1$ was further contended, "for the respondent, that there was aVerbal condition, that the bond should only be entered undercertain circumstances that have not arisen, and that, therefore,the warrant to confess 'Judgment was given subject to a conditionwhich was hot written on it, as it prescribed by section 32 of theCode, and that it was, therefore, void under that section. Thiscontention appears to me quite unsound, for even if there was sucha stipulation with regard to the bond, there was none as to thewarrant to confess judgment.
•The judgment entered by consent appears to me to be authorized byth$ warrant, and to be regular on the face of it. The respondent mayha^e some other remedy if he can show there has been fraud or mis-take, but the District Judge had no power to set aside the judgment.
1917.
Shaw J.
Ramanathantf. DonCarolie
I would therefore allow the appeal with costs.
De Sampayo J.—
•This appeal raises an important point of procedure. The defend-ant, being largely indebted to plaintiff, executed on May 30, 1916,the bond No. 427, by which he agreed to pay to plaintiff on demandthe sum of Rs. 35,000, with interest thereon at 15 per cent., and assecurity for such payment he mortgaged a number of lands. Con-temporaneously with the bond the defendant executed a warrant ofattorney to confess judgment addressed to ** Mr. O. G. de Alwis,Proctor of the Supreme Court of Ceylon, or to any other proctor of'the said Court or of the District .Court of Colombo, ” whereby heauthorized Mr. Alwis or other proctor " to appear for me at anytime before the District Court of Colombo and to receive summonsfdif me in an action for Rs. 40,000 or any other sum that may become
doge on the mortgage bond No. 427 made by me in favour of (the
. plaintiff) —.. and thereupon to confess the said action or elsetp’ suffer judgment by default or otherwise to pass against me ofrecord in the said Court for the said sum, interest, and costs ofaction.” On December 13, 1916, the plaintiff sued on the mortgagebond in this action, stating that the defendant had paid Rs. 5,487.66on ■ account of principal and all interest due up to November 30,1916, and claiming Rs. 29,512.34 as balance principal, with interestthereon from December 1, 1916, and costs of action. At the same■ time as the filing of the plaint,. a written consent to judgment wassubmitted to Court from Mr. V. D. S. Swan, a "proctor practisingitu the District Court of Colombo, who, acting under the warrant ofattorney executed by the defendant, thereby confessed judgment onbejaalf of the defendant, and consented to judgment being- entered
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1917. for the' plaintiff as prayed lor in his plaint. The Court then enteredDjb Samfayo judgment for the plaintiff accordingly, and on the same day the pl'ain-tiff applied for and issued a writ of execution. On December 20, 1916,Ramanathan the defendant, appearing by a firm of proctors, filed an affidavit,v. Don and moved on grounds stated therein that the judgment be openedup and the writ recalled. On this motion certain evidence was heard,and the District Judge, by his order of December 21, 1916, upheldall the objections taken by the defendant and set aside the decreeand recalled the writ. The plaintiff has appealed from that order.
I shall deal witE the points upon which this appeal turns. Previousto the enactment of the Civil Procedure Code oiir Courts had tacitlyadopted the English practice of entering judgment upon confessionof judgment under a warrant of attorney. See Venaithirthan Chettyv. Jayatilleke Appuhamy ,l in which the practice was recognized, andit was held that plaintiff, who had a warrant of attorney to con-fess judgment, might file by the attorney the defendant’s admissionof his claim and have judgment entered up without notice tothe defendant, but that the Court before entering up judgment for* plaintiff should require some safeguards, analogous to those required 'in England, to prevent abuse of this extraordinary procedure. JThe desired safeguards have since been provided by sections 31 and82 of the Civil Procedure Code, which are taken from 32 and 83 Viet.,chapter 62, section 24 and section 26. All the requirements ofsection 31 with regard to safeguards were complied with in this case,and the warrant of attorney in question was in accordance withform 12 in the schedule, as required and authorized by thatsection. Under the English practice a judgment entered up onconfession of judgment by the attorney might be set aside on appli-cation to Court by the- defendant if the warrant of attorney hadbeen obtained by fraud or misrepresentation, or for an illegal debt,and on such like grounds. . As our District Courts have generally*:no power to set aside their own judgments, except in the casesprovided for in the Civil Procedure Code itself, it is at least doubtfulwhether the District Judge was able to open up the judgment in.the circumstances of this case, but the appeal may be disposed of’upon a consideration of the grounds on which the order appealed*from has been supported.
The first objection taken is that only Mr. 0. G. de Alwis, who is*specifically named in the warrant of attorney, could have acted for,the defendant, though the warrant was addressed to and authorized“ any other proctor of the Supreme Court or of the District Courtof Colombo, ” and that Mr. Swan’s consent was a mere nullity.Counsel for the defendant even went further, and contended that thewarrant itself was bad in so far as it purported to give authorityto any unnamed proctor, and the District Judge himself, on theevidence given by the defendant at the hearing of the motion, said
1 (1884) 6 S. C. c. 105.
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thaftfthe defendant intended to appoint a proctor of Xalutara, as 1917.Mr.iAlwis was, so that such proctor might communicate with the Djn saxtaxodefendant and act according to his instructions, and that Hr. Swan J.had no conception of his responsibilities as proctor, and had not?i it n
opmmunioated with the defendant, as he ought to have done, before v. Donlj^ Consented to judgment. The misconception appears to me to Carohe-eyds| elsewhere. The warrant of attorney in this case is in the formwinch is authorized by section 31, and is also in the form commonlyadopted in England. The objection is.based on the mistaken ideathat “the appointment of an attorney to confess judgment is for theconvenience of the defendant, and that the attorney may act orabstain from acting according as the defendant may desire. Onthe1*' contrary, a warrant of attorney is given as security for theplaintiff, and is delivered to him to use it as he wishes by getting thena&ed proctor or any other proctor of the Court to act under it.
The object of it will be effectively defeated if tbe named proctorrerases to act in the interests of the defendant or for any otherreason, unless the warrant is so framed as to enable the plaintiff toget another proctor to act. Mr. Swan might, of course, have refused•to act, but if he undertook to do so, he would not have performedhis. functions properly if he delayed or otherwise prejudiced theplaintiff by any reference to the defendant. When a debtor hasonce duly executed and delivered to the creditor a warrant of attorneyto' confess judgment, he has no longer any control over its oper-ation. There is no doubt a certain element of danger in this pro-cedure, but that is why the law provides, for the presence of a-.proctor to advise the debtor at the execution of the warrant. In thisconnection the defendant stated in his evidence that Mr. Abeyewar-dene, who was his proctor specially appointed by him for that pur-pose. did not explain to him the fact of any other proctor butMr: ‘Alwis was being authorized. But this does not invalidate thewarrant in the hands of the plaintiff, unless there was collusionbetween the plaintiff and Mr. Abeyewardene, of which there is nosuggestion (Haigh v. Pros;1 Cooper v. Grant2)
|P is next objected that, as the warrant of attorney authorizedthe proctor to appear for the defendant and to receive- summonsfor him, and “ thereupon ” to confess judgment, and as no summonswas served on Mr. Swan, he had no authority to confess judgment.There is no doubt that the terms of a warrant must be complied
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with. But a summons is intended to inform a party of the insti-tution of an action and of the nature of the claim. The writtenconsent of Mr. Swan shows that he had seen the actual plaint, whichisj even better for that purpose than – the summons, and I thinkthere is no substance in this objection.
most important ground of objection has reference to anotheragreement between the plaintiff and the defendant entered into on* J 7 Dotol. 748.* SI L. J. C. P. 197.
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the same day as the mortgage bond and the warrant of attorneyDx Samfato hut subsequent thereto. By that agrement the defendant agreedJ* to deliver to the plaintiff all the produce of the mortgaged lands forjttamanathan sale, and for appropriation of a certain proportion of the proceeds inGwwtiv respect of his indebtedness to the plaintiff. It was by the agree-ment expressly declared that nothing therein contained should inany manner prejudice or affect the right of the plaintiff to sue forand recover at any time the moneys'due on the mortgage bond,
“ provided, however that (the plaintiff) shall not put the said bondNo. 427 in suit so long as (the defendant) shall well and truly observeand perform all the obligations contained in this agreement. ” InOctober or November, 1916, certain differences arose between theplaintiff and the defendant, the plaintiff alleging that the defendanthad failed to consign all the produce to him and to fulfil certainother stipulations, and the defendant maintaining the contrary, andfurther alleging that the plaintiff had failed to render the monthlyaccounts as agreed. The plaintiff, as stated above, gave creditto the defendant for Rs. 5^487.86, but the defendant says thathe should have been given credit to a larger extent. The objectionfounded on this question of fact is that as the defendant, accordingto himself, had fulfilled all the obligations on the agreement, theplaintiff’s action was premature, and the confession of judgment isinoperative. In my opinion the objection cannot be sustained. Anyagreement qualifying the terms of the mortgage bond can, if atall, only be. regarded as a defeasance or condition, which shouldhave been written on the warrant of attorney, but was not. It iscontended for the defendant that it was for the plaintiff to see thatthe defeasance was so written. The law, however, is not so. Theomission should be attributed to the person who prepared thedocument, but constitutes no ground of avoiding the warrant ofattorney or the judgment entered thereupon (Partridge v. Fraser1).1Moreover, what section 32 of the Civil Procedure Code provides-is that if the warrant was given subject to any defeasance orcondition, the same shall be written on the same paper, and that*,otherwise the -warrant shall be void. The condition introduced,by the subsequent agreement has reference to the mortgage bond, and?was not a condition subject to which the warrant was given. I'may add that the agreement is of itself a complete and independentcontract, and contained a secondary mortgage of the very landsprimarily mortgaged to plaintiff by the bond, and that, as a matterof fact, it was sued upon by the defendant before the institution,of the present action by the plaintiff. It would be strange if theplaintiff were not able to sue on the mortgage bond, seeing that thedefendant would get in his own action all the credit to which he■rOttfroa to be entitled in connection with the delivery of produce.Where a warrant of attorney was given to confess judgment for a
1 7 Taunt. 307.
C 888 )cerijim sum, but it was understood that it was given to indemnifyplaintiff against his suretyship for a smaller sum, it was held thatt£rat was not such a defeasance as needed to be endorsed on thewarrant of attorney (Barber v. Barber*). So far from the warrant ofattorney in this case being subject to a condition postponing thee^efcise of it pending the currency of the subsequent agreement,the-; proctor was authorized to confess judgment at any time.Moreover, the currency of the agreement came to an end when thedefendant himself absolutely refused to consign any more produce-tu the plaintiff and brought an action theron. In these circum-stances, I am unable to hold that the plaintiff's action was premature.
In my opinion the order appealed from is erroneous. I wouldallpV the appeal with costs in both Courts, and would restore theoriginal decree in favour of the plaintiff.
Appeal allowed. *
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1017.
JXe
Saupavo J.
Ramanathanv.
Don Carolia