Kumarihamy V. Punchi Menika

1936 Present : Abrahams C.J. and Koch J.

KUMARIHAMY v. PUNCHI MENIKA.

165-D. C. Ratnapura, 5,727.

Decree entered of consent against attorney-Power of attorney not valid- Application to set aside-Decree-Irregularity not fatal-Civil Procedure Code, s. 25 (b).

Where judgment was entered of consent against a defendant, who appeared by an attorney whose power of attorney was found to be invalid,-

Held, that the irregularity did not vitiate the proceedings unless the irregularity affected the merits of the case or the jurisdiction of the Court.

APPEAL from a judgment of the District Judge of Ratnapura.

N. E. Weerasooria (with him Pandita Gunawardene), for appellant, defendant.

H. V. Perera, for respondent.

July 23, 1936. ABRAHAMS C.J.-

The appellant was the defendant in the Court below and the summons in the action was served upon her. She had given a general power of

attorney to her husband which, had she complied with the provisions of section 25 (b) of the Civil Procedure Code, would have constituted him her recognized agent for the purposes of the action. In the circumstances it failed to have that effect. The husband gave a proxy to a proctor who, when the case was called, consented to judgment. After the consequential decree, the appellant's property was ordered to be sold and was sold, but before confirmation the appellant unsuccessfully applied to have the decree and sale set aside.

It is argued for the appellant that as the power of attorney did not in law constitute the appellant's husband her recognized agent, the proxy was invalid, the consent to judgment was invalid and the consequential decrees were void. It is an astonishing submission that the appellant makes. She does not complain that the learned District Judge has done, anything to her prejudice on the motion of the opposite party or suo proprio motu, she complains apparently that he had acted in the belief that she had succeeded in doing in law what she had endeavoured to do, or in other words she complains that he ought not to have accepted the representations made to him at the appellant's own instance.

Fortunately for the better administration of justice the appellant's contention is defeated by the exposure of the fallacy upon which it rests. In my opinion the decree is not void. The learned District Judge whether he was misled in some way into believing that the appellant's husband was her recognized agent, or whether in the circumstances he took it for granted, had jurisdiction in respect of the defendant and the subject-matter of the action, and had therefore power to make the decree. It has not been argued that the decree apart from the technical defect in question, was an improper one to make, its invalidity alone is relied upon. I am of the opinion that the appellant's submission fails and that the appeal should be dismissed with costs.

KOCH J.-

The appeal is from an order of the District Judge dismissing the application of the appellant to have a decree entered against her vacated and proceedings held thereunder declared null and void. This decree was recorded on November 9, 1932, in favour of the plaintiff. In the journal the entry of that day reads thus, " Defendant present. Defendant consents to judgment". If this is an accurate entry of fact, the defendant will have no grievance but the defendant in her affidavit, which she presented in support of her application made 2 1/2 years later, has rather disguisedly sought to take up the position that she was not present in Court on the day this decree was entered. The particular paragraph that refers to this is paragraph 2. It runs thus:-"On the 9th day of November, 1932, judgment has been entered against the petitioner in her absence consequent .upon consent given by the attorney". It will be seen that the defendant does not definitely state that she was not personally present that day in Court, and that the

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