Vengadasalam 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 favour of A, his attorneys, heirs, executors, administrators, and assigns-No authority to confess judgment in an action by an assignee of the bond from A's administrator-Civil Procedure Code, s. 31.

Where a warrant of attorney is given to a proctor to confess judgment in favour of A, his attorneys, heirs, executors, administrators, and assigns in an action on a mortgage bond,-

Held, that the proctor had no authority to confess judgment in an action on the bond by an assignee from the administrator of the intestate estate of A.

The decision in Subramanian Chetty v. Naidu[1 28 N. L. R. 467.] is not exhaustive of the cases in which an application by way of restitutio in integrum to set aside a judgment entered in pursuance of a power of attorney to confess judgment would be allowed.

THIS was an application by way of restitutio in integrum by the defendant in an action on a mortgage bond No. 4,177 executed in favour of Supramaniam Chetty, or his certain attorney or attorneys, heirs, executors, administrators, or assigns. The defendant on the same day as the bond executed a warrant of attorney No. 4,178 in favour of a proctor authorizing him to confess judgment in the bond at the suit of Supramaniam Chetty, or his attorneys, heirs, executors, administrators, or assigns. Supramaniam Chetty died on May 12, 1929, and letters of administration of his estate were granted to one Ramasamy Chetty. The latter as administrator and sole heir of Supramaniam Chetty by deed No. 221 dated March 17, 1932, assigned the bond in favour of Vengadasalam Chetty, who instituted this action on the bond.

Rajapakse (with him Aiyer), for defendant, petitioner.-The warrant of attorney to confess judgment authorizes the proctor to confess judgment to a claim by the mortgagee, his heirs, executors, administrators, or assigns. The judgment-creditor in this case is merely an assignee of the administrator of the mortgagee. The warrant does not authorize a confession of judgment on his claim. Warrants of attorney to confess judgment must be strictly construed. In England it has been held that where a warrant authorized a judgment to be confessed in an action by A, his executor could not obtain judgment on the warrant. (Henshall v. Matthew [1 7 Bing 337. ], Foster v. Clagget [6 Bowling 524.].)

Weerasooria (with him E. B. Wikramanayake and T. S. Fernando), for respondent.-The only question is whether the proctor had authority to confess 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 is wrongly used he has his remedy in a separate action. (Ibrahim v. Seyadu Mohamadu [3 33 N. L. R. 145.].) The remedy by way of restitutio in integrum is not open to 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 the rights of the mortgagee.

Rajapakse, in reply.

Cur. adv. vult.

July 3, 1936. DALTON A.C.J.-

This is an application by Weerawarna Kurukulasuriya Boosabaduge Ana Fernando, the defendant in D. C. Colombo, No. 3,985, for restitutio in integrum.

On June 20, 1927, Ana Fernando together with one Joseph Selayar de Cungho executed a mortgage No. 4,177 duly attested in favour of A. V. R. M. S. P. Supramaniam Chetty to secure for the latter " or his certain attorney or attorneys, heirs, executors, administrators or assigns" all sums of money that might become due in respect of any promissory notes, cheques or I. O. U's made or endorsed by the second obligor in favour of the obligee up to the sum of Rs. 3,000. On the same date the two obligors duly executed a warrant of attorney No. 4,178 in favour of John Tambiah Bartlett, a Proctor of this Court,

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