Weerasooria V. Vander Poorten Et Al.,

1948     Present: Wijeyewardene A.C.J., Windham J.
and Basnayake J.

WEERASOORIA, Appellant, and VANDER POORTEN et al.,
Respondents

S. C. 121-122-D. C. Colombo 60Z

Debt Conciliation Ordinance-Meaning of term " debtor "-Matter pending before Board-Jurisdiction of District Court to entertain action in respect of it-Ordinance No. 39 of 1941 as amended by Ordinances No. 40 of 1941 and No. 9 of 1943, ss. 14 and 56-Scope of Courts Ordinance, s. 71-Debt-Payment twice over-Court will never order- Costs-Proctor's fees and charges-Can be mattter of private contract- Civil Procedure Code, ss. 214 and 215.

An application can be made to the Debt Conciliation Board, under section 14 of the Debt Conciliation Ordinance, only by a debtor who is in debt at the time he makes his application. Where, therefore, a mortgagor made application denying that he owed any money under the mortgage bond and stating that, in fact, a sum of money would be found due to him from the mortgagee on an accounting.

Held, that the Debt Conciliation Board had acted ultra vires in entertaining the application of the mortgagor.

Held further: (i) The law will never compel a person .4 to pay a sum of money a second time to B when he has already paid it to C under the sanction of a court of competent jurisdiction; but A, who seeks to benefit by this principle, must have done all that was incumbent on him to resist the payment to C.

(ii) Sections 214 and 215 of the Civil Procedure Code do not prevent a Proctor from entering into an agreement with his client that he should be paid on a different basis and recovering from his client by an action at law all fees due to him in terms of such an agreement. Such an agreement need not be in writing under our law, but the burden will be on the Proctor to establish its reasonableness and equity.

(iii) (Basnayake J. dissenting) By virtue of section 71 of the Courts Ordinance a District Court can, with the consent of parties, entertain an action in respect of a matter pending before the Debt Conciliation Board, notwithstanding the provisions of section 56 of the Debt Conciliation Ordinance.

APPEAL from a judgment of the District Court, Colombo. This case was referred to a Bench of three Judges owing to difference of opinion between the two Judges before whom it had been previously listed.

F. A. Hayley, K.C., with H. V. Perera, K.C., N. K. Choksy, K.C., and J. Misso, for the 1st defendant, appellant in No. 122 and respondent in No. 121.-The preliminary question which arises in this case is whether the District Court had jurisdiction to entertain this action.

Section 56 of the Debt Conciliation Ordinance, No. 39 of 1941, enacts that " no civil court shall entertain any action in respect of any matter pending before the Board ". This action was instituted on April 12, 1944, and at that date there can be no doubt that the subject-matter of the plaint was pending before the Debt Conciliation Board. The application to the Board by the plaintiff was made on May 27, 1943.

and the Board dismissed that application only on August 1, 1945. Under the provisio

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