003-NLR-NLR-V-41-VALIAPPA-CHETTIAR-v.-SUPPIAH-PILLAI-et-al.pdf
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Valiappa Chettiar v. Suppiah Pillai.
1939
Present: Keuneman and Wijeyewardene JJ.
VALIAPPA CHETTIAR v. SUPPIAH PILLAI et al.
210—D. C. Kandy, 48,531.
Power of attorney to confess judgment—Action on mortgage bond—Warrantattested by creditors’ proctor at his request—No proctor attending atreauest of debtor—Warrant invalid—Civil Procedure Code, s. 31.
Where judgment was obtained on a mortgage bond on a warrant ofattorney to coniess judgment which was granted by the mortgagorat the request of the mortgagee’s proctor and which was also attestedby the same proctor,—
Held, that the warrant of attorney to confess judgment was badas there was no proctor present expressly named by the mortgagorand attending at his request to satisfy the requirements of section 31of the Civil Procedure Code.
KEUNEMAN J.—Valiappa Che Mar v. Suppiah Pillai.
IS
fjl HTS was an application for restitutio in integrum.
N.Nadar ajah (with him J. M. Jayamanne), for defendants, petitioners.
N. E. Weerasooria, K.C. (with him E. F. N. Gratiaen), for plaintiff,respondent.
Cur. adv. vult.
March 29, 1939. Keunkman J.—
This is an application by the defendants for restitutio in integrum.The plaintiff sued on mortgage bond 739, dated May 7, 1926, and obtainedjudgment against the defendants by virtue of a warrant of attorney to'confess judgment, and decree was entered on May 28, 1937. Thedefendants allege that the warrant of attorney filed in the case is bad andinvalid, in that Proctor Yatawara, who attested the warrant purportingto be the proctor for the defendants, was not nominated by the defendants.It is also alleged that the plaintiff’s claim was fraudulent.
The mortgage bond 739 was attested by Proctor Yatawara, who alsoattested the warrant of attorney to confess judgment, purporting to bethe defendant’s proctor. It is admitted that as regards the mortgagebond 739 Proctor Yatawara was acting at the instance of, and under theinstructions of, the plaintiff, and it is clear that this proctor had receivedthe instructions of the plaintiff to have the .warrant of attorney executed.Both documents were executed on the same date and on the sameoccasion.
Under section 31 of the Civil Procedure Code no warrant of attorney,given by any person to a proctor, to confess judgment is of any force,unless there is present at the execution thereof a proctor “on behalf ofsuch person expressly named by him and attending at his request ”to inform him of the nature and effect of such warrant, before the same isexecuted.
One important requirement in this section is that the proctor mustattend “ on behalf of the defendant ”. There are authorities under thesimilar enactment in 1 & 2 Victoria, c. 110, relating to warrants ofattorney and cognovits. In Mason v. Kiddle the agents of the plaintiff’sattorney sent down the writ to an attorney at Shaftesbury to be servedon the defendant. The defendant employed the same attorney to gethim time for payment of the debt, and agreed to pay him for his trouble.Thereafter the plaintiff agreed to take a cognovit, and his agents sent itdown to the same attorney at Shaftesbury for execution. This attorneythen sent for the defendant and asked him to name some attorney toattend on his behalf. The defendant said “ I name you ”, and thecognovit was executed by the defendant in the presence of this attorneyand was attested by him, no other attorney being present on behalf of thedefendant. It was held by the Court that the cognovit was bad.Alderson B. stated that “ there must be an attorney, other than theplaintiff’s expressly named by the defendant, and attending on hisbehalf”.
Similarly, in Sanderson v. Westley & Walters * Parke B. stated, “ We areof opinion that Goddard was the attorney of the plaintiff prior to hisbeing employed, and was his attorney in this transaction. If so, the
1 {1839) 151 English Reports 217.* 151 English Reports 337
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KEUNEMAN J.—Valiappa Chettiar v. Suppiah Pillat.
act is not complied with, since it required that there must be a separateattorney, employed by the defendant to take care of his interests only”;and Alderson B. stated, “ Where there is but one attorney present, itought to be perfectly clear that he is not the plaintiff’s attorney
Further, the proctor must be expressly named by the defendant andattend at his request. This means that there should be some distinctexpression of request or appointment by the person who executes, andsuch request or appointment must be the result of a free choice —Chitty’sArchbold's Practice of the Court of Queen’s Bench (12th ed.,) p. 954.
In the present proceedings Proctor Yatawara has given evidence withfrankness, and there is no reason to think that he has been a party toany fraud, but it is clear that he has misinterpreted the section and mis-understood its requirements. In his evidence he states: —
“Defendants and plaintiff gave me instructions to prepare the bond.Plaintiff said he wanted a power of attorney to confess judgment.I informed defendants about it. They consented to execute that
power of attorneyI explained the contents of the
mortgage bond to the defendants. After the mortgage bond wassigned, I explained the power of attorney to confess judgment”.
In cross-examination he added : —
“ I told the defendants that plaintiff wanted me to execute a warrantof attorney to confess judgment and that for that purpose. I shall haveto act as their proctor for the said purpose. Defendants consentedto my acting as their proctor. I did not tell the defendants tonominate a proctor to act on their behalf. I was really watching theinterests of the plaintiff Chettiar, in getting a warrant of attorney toconfess judgment ”.
It is clear on this evidence that Proctor Yatawara was present on theoccasion in question as the plaintiff’s proctor. It was therefore his dutyto request the defendants to get some other proctor to look after theirinterests, and not to combine in his own person the duties both of proctorfor the plaintiff. and of proctor for the defendants. I cannot thereforeregard his attestation as having been made “ on behalf of the defend-ants ”. Further, it seems evident that the defendants were never giventhe opportunity of making a free choice of their proctor for the purposesof the section, and Mr. Yatawara cannot be regarded as the proctorexpressly named by the defendants and attending at their request.
In view of these findings, it is not necessary to consider the allegationof fraud.
I allow the application of the defendants, and set aside the judgmentand decree already entered, and order that a date be fixed for the filingof the answer of the defendants, and that the case do proceed to trial indue course.
The defendants are entitled to the costs of this application.Wueyewardene J.—I agree.
Application allowed.