National Bank Of India Ltd. V. George Gill

1930 Present: Garvin A.C.J, and Jayewardene A.J.

NATIONAL BANK OF INDIA, LTD. v. GEORGE GILL.

68-D. C. (Inty.) Colombo, 36,476.

Warrant of attorney to confess judgment given by attorney-Power of attorney giving specific authority-Mortgage bond-Civil Procedure Code, s. 31.

A warrant of attorney to confess judgment under section 31 of the Civil Procedure Code cannot be given and executed for a person, and in his name by an agent of that person even where the agent is given specific authority to do so.

Where a warrant of attorney to confess judgment is filed with a plaint, the District Judge has no power to make it a rule of Court, requiring an affidavit in proof of the fact that the proctor attesting the signature of the person granting the warrant had, in fact, been chosen by him, and that the debt was truly due.

APPEAL from an order of the District Judge of Colombo. The plaintiff sued the defendant upon a mortgage bond, No. 178 of June 28, 1926. With the plaint the proctor for plaintiff tendered a warrant of attorney to confess judgment directed to Mr. C. M. G. de Saram, a proctor of the Supreme Court, and moved that summons be issued on the said proctor. The bond sued upon was not executed by the defendant personally but by his attorney, Mr. Maartensz, on his behalf. On the same day the attorney, acting on behalf of the defendant, executed (he warrant of attorney to confess judgment. The power of attorney under which Mr. Maartensz acted was a specific authority to him to execute in favour of the plaintiff the mortgage bond sued upon and also to execute a warrant of attorney to confess judgment identical in terms with the warrant tendered with the plaint. After argument the learned District Judge held that the warrant of attorney was void and ordered summons to be served in the ordinary way.

H. H. Bartholomeusz, for the appellant.

June 26, 1930. GARVIN A.C.J.-

This is a hypothecary action. The plaintiff sued upon a bond bearing No. 178 of June 23, 1926. With the plaint the proctor for the plaintiff tendered a warrant of attorney to confess judgment directed to Mr. C. M. G. de Saram, a proctor of the Supreme Court, and moved that summons be issued on the said Mr. C. M. G. de Saram. The learned District Judge states in the course of an order to which I shall presently refer, that he asked for an affidavit in proof of the fact that the proctor attesting the warrant of attorney on behalf of the person who granted it had, in fact, been chosen by the debtor indicating also that the affidavit should show that the debt was truly due. The plaintiff, however, desired to be heard before a definite order was made and the matter was set down for hearing. After argument the learned District Judge made an order in which, to use his own words, he went further and upon discovery that the warrant of attorney to confess judgment filed in this case had been executed not by the defendant in person but by his attorney, declared the warrant to be void and ordered that

summons be served "in the ordinary way ". The bond upon which this action was based was not executed by the defendant personally but for and on his behalf and in his name by the attorney, Mr. J. A. Maartensz of the firm of Messrs F. J. & G. de Saram. On the same day and at the same time Mr. Maartensz acting for and on behalf of and in the name of the defendant executed a warrant of attorney to confess judgment. The warrant is in the usual form. To the warrant is attached a declaration by Mr. J. F; van Langenberg, a proctor of the Supreme Court, in which he declares that he is the proctor for George Gill, who is the defendant in this action, and that he read and explained the contents of the warrant of attorney to Mr. George Aubrey Maartensz, the duly appointed attorney of George Gill. This mortgage bond and the warrant of attorney to confess judgment were both executed by Mr. Ma

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