[IN REVISION]

1935   Present  : Akbar S.P.J. and Koch A.J.

SABAPATHY v. DUNLOP et al.

 D. C. Avissawella, 1,636 and 1,637.

'Restitutio  in integrum-Judgment entered by compromise_Application to set aside decree-Fear and surprise-Powers of Supreme Court-Civil Procedure Code, s. 408 and 752-Courts Ordinance, s. 40.

Where an action has been adjusted by agreement or compromise under section 408 of the Civil Procedure Code, the Supreme Court has power to set aside, by way of restitution or revision, a judgment entered in terms of the section, on the ground of fear or mistake.

A threat from a Judge to dismiss a plaintiff's case unless he agreed to the terms of settlement would amount to fear.

THIS was an application to set aside by way of revision or restitution the orders in two cases entered of consent between the plaintiff and the respective defendants in the actions.

The settlement was entered into in Court in the presence of the District Judge and was signed by the plaintiff, the defendants, and the District Judge.

The facts are fully stated in the judgment of Akbar S.P.J.

N. Nadarajah (with him P. Navaratnarajah), for plaintiff, petitioner.- This is an application by way of revision or in the alternative by way of restitutio in integrum to have an order of the District Judge of Avissawella set aside. The settlement which is recorded was brought about by pressure and surprise, and an order in pursuance of such a settlement can be set aside. (Swinfen v. Swinfen[1 2 D. G. & J. Chancery Reports 386; 1 Revised Reports 490.] Neale v. Gordon Lennox[2 (1902) A. C. 469.] Fernando v. Singhoris[3  26 N. L. R. 469.].) A trial Judge ought not to take part in effecting a settlement between parties-section 408 of the Civil Procedure Code. He has judicial functions to perform with regard to the terms of compromise.

There is ample authority for the proposition, that where a Judge misconducts himself, the position can be rectified and order set aside by a Judge of the Appellate of Superior Tribunal. (2 White and Tudor's Leading Cases in Equity 708; Reg. v. Justices of Cumberland[4 58 L. T. N. S. 491], Reg. v. Millage et al.[5 40 L. T. N. S. 748.]; Queen v. Farrant[6  20 Q. B. D. 58.]; Zemindar of Tuni v. Binnaya[7 22 Mad. 155.]; 1837, Morgan's Digest 143.)

This can be done either by restitutio in integrum (Vander Linden, bk. I  tit. 12, s. 1; Voet, bk. IV., tit. 2; 2 Van Leeuwen 338, Censura Forensis, bk. IV., clause 11, section 10; Digest, bk. IV., tit. 2-title 6 Monro's Trans.) or by way of Revision-see section 753 of Civil Procedure Code, section 357 of Criminal Procedure Code, sections 21 and 40 of Courts Ordinance. Counsel also cited Appuhamy v. Weeratunga[8  23 N. L. R. 467.]; Cassi Lebbe v. Dias[9 2  N. L R. 319].

H. V. Perera (with him E. F. N. Gratiaen), for defendant, respondent.-The plaintiff's version of the incidents which took place on the trial date is false, and in any event he would not be entitled to relief inasmuch as he admits that he agreed to settle this case in the hope of pleasing the trial Judge and thereby obtaining an undue and improper advantage in the connected case.

Assuming that the plaintiff's version is accepted, the Court has no jurisdiction to interfere by way of revision under section 753 of the Civil Procedure Code. The decree entered by the trial Judge in pursuance of the compromise effected between the parties under section 408 was neither " illegal" nor "improper", and cannot therefore be set aside. It was in fact the duty of the Court to pass decree giving effect to the compromise, provided that the terms of such compromise were legal, as they undoubtedly are.

The trial Judge was competent to enter decree in terms of the compromise; he was not " personally interested" in the action within the meaning of section 90 of the Courts Ordinance, even if the plaintiff's version be true, which we deny.

The plaintiff is not