POYSER SPJ.—Valliappa Chettiar v. Suppiah Pillai.
Present: Poyser S.PJ. and de Kretser A.J.
VALLIAPPA CHETTIAR v. SUPPIAH PILLAI.
210—D. C. Jaffna, 48,531.
Registration of Business Names’ Ordinance, No. 6 of 1918—rFailure to complywith provisions—Objection taken after judgment—Warrant of attorney,to confess judgment—Entered of consent—Power of Court to set asidedecree.
A party should not be permitted after judgment in a case 'to leadevidence to. prove non-compliance with the terms of the Registration ofBusiness Names’ Ordinance, No. 6 of 1918.
A Court has no jurisdiction to set aside its own decree entered of con-sent in pursuance of a warrant of attorney to confess judgment.
Van Twest v. Goonewardene (32 N. L. R. 220) followed.
A PPEAL from a judgment of the District Judge of Jaffna.
N. E. Weerasooria (with him E. F. N. Gratiaen), for plaintiff, appellant.
V. Perera, K.C. (with him N. Nadarajah), for defendants, respondents.
Cur. adv. vult.
May 18, 1937. Poyser S.P.J.—
The plaintiff, the administrator of the estate of one V. P. L. V. ValiappaChettiar, sued the defendants for the sum of Rs. 19,000 being the amountdue on a mortgage bond.
The defendants did not file answer and consented, through theirattorney, to judgment being entered against them.
About three months after decree was entered, the defendants filed apetition praying that the decree be set aside as the warrant of attorney toconfess judgment was, for various reasons, bad in law and void. Thepetition also set out • that the action could • not be maintained as theplaintiff had not complied with the provisions of the Registration ofBusiness Names’ Ordinance.
The petition came up for inquiry on October 11, 1937, the DistrictJudge did not adjudicate on the question of whether the warrant ofattorney was void or not but held that the petitioners could lead evidenceon the question of the registration of the plaintiff’s “ Vilasam ” andagainst this order the plaintiff appeals.
It was argued on behalf of the appellant that it is not now open to (thedefendants to raise any question in regard to the registration of theplaintiff’s business name as such question was never raised before judg-ment was entered.
Mr. Nadarajah, on the other hand, on the authority of Karuppen Chettyv. Harrison & Crosfield, Ltd., argued that the Court should, at any stageof an action or even in execution proceedings ex mero motu give effectto the terms of the Ordinance if it appeared that its provisions had beeninfringed.
1 Si N. L. R. 317.
POYSER SP.J.—Valliappa Chettiar v. Suppiah Pillai.
That case however is not an authority for the proposition that the Courtcan give effect to. the provisions of the Ordinance after judgment.Further, it does not appear -from the record that the re has been anyinfringement of the terms of the Ordinance, and I do not think that aparty should be permitted to lead evidence after judgment to provenon-compliance with any of its terms.
The case of Karuppen Chetty v. Harrison & Crosfield, Ltd. (supra) hasrecently come under consideration in S. C. 103, D. C. Colombo,No. 49,541 '. In that case the following passage occurs in the judgmentof Maartensz J. at page 26 : —
“ The first is the suggestion that we should receive evidence to showthat the defendants were precluded from making their claim in recon-version because they had failed to comply with the provisions of theBusiness Names’ Registration Ordinance, No. 6 of 1918. The plaintiffswhen the last witness but one was being re-examined proposed to placethis evidence before the District Judge who refused to admit it. I thinkthe evidence was rightly rejected. No doubt when the evidence hastranspired in the course of the trial the Court must act upon it.Karuppen Chetty v. Harrison & Crosfield, Ltd. (supra). But I do notthink a party should be allowed to lead evidence at the last moment toprove non-compliance with the provisions of the Ordinance. CertainlyI do not think 'the evidence should be received in appeal ”.
I entirely agree with this passage and therefore consider that the DistrictJudge’s order was wrong.
There is one other matter, the District Judge in the course of his orderstated : “If Mr. Nadarajah can show the warrant of attorney is bad,Mr. Beven admits the decree becomes bad. That seems to be the firstquestion for decision
Mr. Weerasooria pointed out that this passage must not be -taken tobe an admission by Mr. Beven that the District Judge could himself setaside the decree entered in the case but only an admission that if thewarrant of attorney was declared void in appropriate proceedings, thedecree would be bad.
These observations of Mr. Weerasooria can be appreciated if referenceis made to the case of Van Twest v. Goonewardene" in which it was heldthat “ a Court has no jurisdiction to set aside its own decree, entered ofconsent, in pursuance of a warrant of attorney to confess judgment ”.That case also indicated that the correct procedure would be to set asidea decree on the grounds, that the warrant of attorney was bad.
The appeal is allowed with costs and the order of the District Judgepermitting the defendants to lead evidence on the question of registrationset aside.
de Kretser J.—I agree.Appeal Allowed.
1 S. C. Minutes of May J8, 1937.
* 32 N. L. R. 220.
VALLIAPPA CHETTIAR v. SUPPIAH PILLAI