023-NLR-NLR-V-38-VENGADASALAM-CHETTY-v.-ANA-FERNANDO.pdf
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V engadasalam Chetty v. Ana Fernando.
1936
Present: Dalton A.C.J. and Soertsz A.J.VENGADASALAM CHETTY v. ANA FERNANDO.
585—D. C. Colombo, 3,985.
Warrant of attorney to confess judgment—Power to confess judgment in favourof A, his attorneys, heirs, executors, administrators, and assigns—Noauthority to confess judgment in an action by an assignee of the bondfrom A’s administrator—Civil Procedure Code, s. 31.
Where a warrant of attorney is given to a proctor to confess judgmentin favour of A, his attorneys, heirs, executors, administrators, andassigns in an action on a mortgage bond,—
Held, that the proctor had no authority to confess judgment in anaction on the bond by an assignee from the administrator of the intestateestate of A.
The decision in Subramanian Chetty v. Naidu 1 is not exhaustive of thecases in which an application by way of restitutio in integrum to setaside a judgment entered in pursuance of a power of attorney to confessjudgment would be allowed.
HIS was an application by way of restitutio in integrum by the
T defendant in an action on a mortgage bond No. 4,177 executed infavour of Supramaniam Chetty, or his certain attorney or attorneys,heirs, executors, administrators, or assigns. The defendant on the sameday as the bond executed a warrant of attorney No. 4,178 in favour of aproctor authorizing him to confess judgment in the bond at the suit ofSupramaniam Chetty, or his attorneys, heirs, executors, administrators,or assigns. Supramaniam Chetty died on May 12, 1929, and letters ofadministration of his estate were granted to one Ramasamy Chetty. Thelatter as administrator and sole heir of Supramaniam Chetty by deedNo. 221 dated March 17,1932, assigned the bond in favour of
Vengadasalam Chetty, who instituted this action on the bond.
1 26 N. L. R. 467.
DALTON A.C.J.—Vengadasalam. Chetty v. Ana Fernando.93
Rajapakse (with him Aiyer), for defendant, petitioner.—The warrant ofattorney to confess judgment authorizes the proctor to confess judgmentto a claim by the mortgagee, his heirs, executors, administrators, or assigns.The judgment-creditor in this case is merely an assignee of the adminis-trator of the mortgagee. The warrant does not authorize a confession ofjudgment on his claim. Warrants of attorney to confess judgment mustbe strictly construed. In England it has been held that where a warrantauthorized a judgment to be confessed in an action by A, his executorcould not obtain judgment on the warrant. (Henshall <v. Matthew *,Foster v. Clagget ’.)
Weerasooria (with him E. B. Wikramanayake and T. S. Fernando), forrespondent.—The only question is whether the'proctor had authority toconfess judgment. It is immaterial whether the sum was due or not.The effect of such a warrant is to tie the hands of the debtor. If it iswrongly used he has his remedy in a separate action. (Ibrahim, v. SeyaduMohamadu ’.) The remedy by way of restitutio in integrum is not opento him in a case like this. (Subramaniam Chetty v. Naidu (supra).)The action is on the bond and the plaintiff has a valid assignment of therights of the mortgagee.
Rajapakse, in reply.
Cur. adv. vult.
July 3, 1936. Dalton A.C.J.—
This is sn application by Weerawarna Kurukulasuriya BoosabadugeAna Fernando, the defendant in D. C. Colombo, No. 3,985, for restitutio inintegrum.
On June 20, 1927, Ana Fernando together with one Joseph Selayarde Cungho executed a mortgage No. 4,177 duly attested in favour of
V. R. M. S. P. Supramaniam Chetty to secure for the latter “ or hiscertain attorney or attorneys, heirs, executors, administrators or assigns”all sums of money that might become due in respect of any promissorynotes, cheques or I. O. U’s made or endorsed by the second obligor infavour of the obligee up to the sum of Rs. 3,000. On the same date thetwo obligors duly executed a warrant of attorney No. 4,178 in favour ofJohn Tambiah Bartlett, a Proctor of this Court, authorizing him to appearfor the obligors at any time in the District Court, Colombo, and to receivesummons for them in an action for Rs. 3,000 and interest due on bondNo. 4.177, whether at the suit of Supramaniam Chetty or his certainattorney or attorneys, heirs, executors, administrators or assigns, and toconfess the action.
Supramaniam Chetty died on May 12, 1929, and letters of adminis-tration of his estate were granted to one Ramasamy Chetty. Thelatter as administrator and sole heir of Supramaniam Chetty, by deedNo. 221 dated March 17, 1932, assigned for the sum of Rs 12,500 to oneVengadasalam Chetty all the principal and interest due under twomortgage bonds executed in favour of Supramaniam Chetty. The twobonds in question were : (1) a bond No. 228 of January 5, 1925, upon whicha sum of Rs. 11,102.52 principal and a further sum as interest were due
* 7 Bing 337.z 6 Dowling 524.
3 33 N. L. R. 145.
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DALTON A.C.J.—Vengadasalam Chetty v. Ana Fernando.
at the date of the assignment, and (2) the aforementioned bond No. 4,177of June 20, 1927, upon which the sum of Rs. 1,000 was stated to be due asprincipal at the date of the assignment, and interest at 15 per cent, perannum from March 1,1932.
On July 15, 1933, some sixteen months after the above-mentionedassignment, it is alleged that Joseph Selayar de Cungho made a promissorynote payable on demand for Rs. 1,000 in favour of A. V. R. M. S. P.Ramasamy Chetty, with interest at 15 per cent. Thereafter, onSeptember 24, 1935, Vengadasalam Chetty instituted an action againstAna Fernando on the bond No. 4,177 of June 20, 1927, to recover fromher the sum of Rs. 1,000 with interest thereon at the rate of 15 per cent.,in all Rs. 1,356.25. There was the usual prayer that the mortgagedproperty be declared specially bound and executable, and be sold indafault of payment.
In support of his claim Vengadasalam Chetty recites the bond No. 4,177and sets out that in pursuance thereof Supramaniam Chetty from time totime lent money to Ana Fernando on promissory notes, cheques and
O U’s, which were renewed on occasions in favour of SupramaniamChetty, and after his death in favour of Ramasamy Chetty. The plaintiffalleges that there is now due under the terms of the bond and on apromissory note, dated July 15, 1933, which is attached to the plaint andmarked “B ”, the sum of Rs. 1,000 with interest at 15 per cent, fromJuly 15, 1933.
The plaintiff then recites the deed of assignment, dated March 17, 1932,No. 221 by Ramasamy Chetty to him, and he files this deed with his plaint.The plaint then continues : —“ the said Ramasamy Chetty thereafterduly handed' over, delivered and assigned the said promissory notemarked ‘ B ’ to the plaintiff. The plaintiff thereafter gave due notice ofassignment to the defendant and called upon the defendant to pay andretire the note marked ‘ B The note in question, made long after theassignment in 1932, it may be remarked here, is payable on demand toA. V. R. M. S. P. Ramasamy Chetty as such and not to him in anyrepresentative capacity, and it bears no endorsement of any kind. Thereis further no allegation that it is a renewal of any note granted toSupramaniam Chetty.
The plaint then further alleges that de Cungho has been adjudicatedinsolvent in D. C. Kalutara, No. 290 (no date is given), and that he hasdisclosed the claim set up in this action as a liability in the balance sheetfiled by him in his insolvency. There is nothing to show whether or notany claim has been made in respect of this debt in the insolvency.
When the plaintiff’s action was instituted and the plaint filed onSeptember 25, 1935, it is to be noted that no warrant of attorney toconfess judgment was filed with the plaint as is usual in such cases,although the bond and the promissory note were filed on that date.The plaint was accepted and the Court ordered that summons be servedon the defendant, returnable on October 25. The case was called onOctober 25, and it was then noted in the journal that summons had notissued on the defendant. The Court then directed that it re-issue, to bereturnable on November 25. The next journal entry is dated November25, when it is recorded that the case was called, that summons had not
DALTON ACJ.—Vengadasalam Chetty v. Ana Fernando.
95
issued on the defendant, that the plaintiff’s proctor was absent, and thathe should have notice to appear on December 12. The next entry on thejournal is dated November 4, a date earlier than the preceding entry, itwill be noted. No explanation as to how this happened is forthcoming.If the date is correct, the entry could hardly have been made on the dateon which the proceeding took place. On that date the plaintiff’s proctoris stated to have filed the warrant of attorney to confess judgment,No. 4,178 above mentioned, and also a minute of consent from the proctorappointed under the warrant. His minute, dated October 30, 1935,states that “ having perused the plaint and other connected papers ” inthe case, he consented to judgment in favour of the plaintiff as prayed forin the plaint. The Court thereupon on that date (November 4) is statedto have entered decree as prayed for, the sum to be payable in a month.The plaintiff was given leave to purchase the property on conditions to befixed by the Court. The defendant, apparently having heard of the order,moved the Court on November 29, with affidavit in support, to set asidethe decree and to allow her to file answer and defend the action, but theJudge apparently held he had no power to set aside the order. Heinformed the defendant she should apply to this Court for restitutio inintegrum. which she did on December 12. The plaintiff obtained onDecember 12 leave to issue writ of execution, but execution proceedingswere stayed on the order of this Court, pending decision of this presentapplication by the defendant.
I do not wish to comment upon or say more about the facts of the caseI have set out above than is necessary, as the petition must be allowed andthe defendant must be given leave to defend as asked for. It is sufficientto say that the proctor had no power under the warrant of attorney, inmy opinion, to confess judgment in any action at the suit of the plaintiffVengadasalam Chetty. As has been frequently laid down, these warrantsof attorney must be strictly construed. Power to confess judgment isconfined to an action by Supramaniam Chetty or his heirs, executors,administrators or assigns. If the object of the warrant had been to securepayment to Supramaniam Chetty alone, judgment cannot be confessed orentered under the warrant after his death at the instance of his executor(Hensliall v. Matrhew '). In Foster v. Clagget", Williams J. pointed outthat it might happen that the executors of a person are entitled to thebenefit of a contract into which that person has entered, even althoughthey are not expressly named. But the question he had to decide waswhether a warrant of attorney, given to the testator only, could betreated as such a contract. He pointed out that it had been decided that“ an authority of this nature must be strictly pursued, and we cannotsupply any supposed omission of the parties ”. Reference may also behad to the decision in Short v. Coglin *, which is to the same effect. In thewarrant before us the word “ assigns ” has been added to the wordsused in form No. 12 mentioned in section 31 of the Civil Procedure Code,but the assigns there mentioned are the assigns of Supramaniam Chettyand of no one else. If it had been intended to include the assigns of hisheirs, executors, or administrators, it would have been a simple matter inplace of the word “ assigns ” to insert the words “ or of his or their assigns1 7 Bingham 357.2 6 Dowling 524.3 1 Anat 225.
96
Ponniah v. Jameel.
Mr. Weerasooria for the respondent (plaintiff) has urged that thequestion to be answered here is whether the proctor had authority toconfess judgment in this action. If he had, even supposing for themoment that he consented to judgment for a sum of money that was notdue, the petitioner is not entitled to the remedy she is seeking in these .proceedings, as the judgment would bind her as her own act. He arguesthat the action is on the bond, which is to Supramaniam Chetty, his heirs,executors, administrators, and assigns, that Ramasamy Chetty wasadministrator with power to assign, and that the plaintiff was an assigneeof Supramaniam Chetty, since he had a valid assignment of SupramaniamChetty’s rights to recover money on the bond. This argument, however,it seems to me, does not help him, for what we have to construe is thewarrant of attorney. He has not satisfied me that under the warrantthe proctor was empowered or had any authority to confess judgment inan action at the instance of Vengadasalam Chetty.
It was then urged that the decision in Subramaniam Chetty v. Naiduwas exhaustive of the cases in which an application by way of restitutioin integrum to set aside a judgment entered in pursuance of a power ofattorney to confess judgment could succeed. This, however, is clearlynot so, although I agree that all such applications must be very carefullyscrutinized.
For the reasons I have stated, the petitioner here is entitled to theremedy she seeks, and the appeal and application must be allowed withcosts here and below.
Soertsz A.J.—I agree.
Application allowed.