1931 Present : Drieberg and Akbar JJ.

IBRAHIM v. SEYADU MOHAMADU.

396-D. C. Puttalam, 4,280.

Warrant of attorney to confess judgment-Authority to confesss on mortgage bond -Conditions of bond not included in the warrant-Is the warrant valid?

A creditor to whom a warrant of attorney to confess judgment is given by a debtor cannot be prevented from obtaining judgment on the warrant on the ground that certain conditions of the mortgage bond, on which the right of recovery depended, have not been fulfilled, unless those conditions were included in the warrant itself.

BY a mortgage bond, D, the appellant became liable to the respondent in a sum of Rs. 66,854 to be paid by instalments. On the same day the appellant granted to Mr. Strong, a proctor, a warrant of attorney to confess judgment.

The bond provided that, if default was made in payment of an instalment, the appellant was to be given one month's time for payment before bringing an action on the bond. The appellant made default in the first instalment which was payable on June 3, 1930, and the respondent gave notice that if appellant did not pay by July 3, 1930, he would sue on the bond.

On July 2 the appellant brought this action to have the warrant of attorney declared null and void.

The appeal is from the order of the District Judge dismissing the action.

Keuneman, for plaintiff, appellant.-The bond D is subject to a condition, this condition is not incorporated in the warrant of attorney and the warrant is therefore null and void.

The condition set out in the bond must be regarded as a condition subject to which the warrant was given (section 32, Civil Procedure Code). The warrant must be used to confess judgment only for the precise amount shown on the face of it as due and payable. The sum set out in the warrant is not the correct sum due.

H. V. Perera, for respondent.-This warrant is based on the form given in Volume II., Key and Elphinstone, p. 196.

The condition referred to in section 32, Civil Procedure Code, is one subject to which the warrant itself is given.

A debtor can assent to judgment though he may have grounds on which to defend the action and by the warrant he can give the attorney the same power.

A debtor has no control over the warrant once it is duly executed and delivered to the creditor (Ramanathan v. Don Carolis 1[(1917) 19 N. L. R. 378.]).

October 22, 1931. DRIEBERG J.-

By a mortgage bond, Dl, of December 3, 1929, the, appellant became liable to the respondent in a sum of Rs. 66,854, which was to be repaid

by instalments; on the same day the appellant granted to Mr. Strong, a proctor, a warrant of attorney to confess judgment in any action filed on the bond.

The bond provided that, if default was made in payment of an instalment, the appellant was to be given one month's time for payment before bringing action on the bond. The appellant made default in the first instalment which was payable on June 3, 1930, and the respondent gave the appellant notice that if he did not pay by July 3, he would sue on the bond.

On July 2 the appellant brought this action to have the warrant of attorney declared null and void and for an injunction restraining the respondent, while this action was pending, from using the warrant for the purpose of obtaining judgment on the bond.

During the pendency of these proceedings the respondent on July 11,. 1930, filed action on the bond D1, but the matter has not, I understand, been proceeded with beyond the presentation of the plaint.

One ground was that the terms of the warrant had not been fully explained to him in accordance with section 31 of the Civil Procedure-Code. The learned District Judge, in dismissing the action, has held against the appellant on this point, and in my opinion rightly.

The other grounds advanced by the appellant were that the warrant was subject to a condition or defeasance, that this was not embodied in