Eswaralingam.S V. Sivagnanasundaram.N

1962 Present: Sansoni, J.

S. ESWARALINGAM, Appellant, and N. SIVAGNANASUNDARAM (District Judge), Respondent

S. C. 20 of 1962-Application under Section 42 of the Courts
Ordinance for an Order in the nature of Writ of Prohibition
and Mandamus on N. Sivagnanasundaram, Esquire,
District Judge of Point Pedro

Civil procedure-Money lying in Court-Order of payment made by Court per incuriam-Inherent power of Court to lake action to prevent any injustice-Failure to obey summons-Power of Court to order attachment and bail- Civil Procedure Code, ss. 137, 138, 141, 219, 839.

A Judge is entitled to notice a party to appear before him in order that an inquiry might be held into any matter pending before him.
An order of payment of a certain sum of money deposited in Court by the 3rd defendant was made by Court per incuriam in favour of the 1st and 2nd defendants. The 3rd defendant then applied to the Court to order the 1st and 2nd defendants to bring back the money into Court.

Held, that it was the duty of the Court to summon the 1st and 2nd defendants and to require them to deposit in Court the money which had been paid out to them, until such time as the rights of the parties could be ascertained. If the 1st and 2nd defendants failed to obey the summons, the Court was entitled to enforce obedience by issuing an attachment against them and to order them, under section 138 of the Civil Procedure Code, to give bail to ensure their attendance.

APPLICATION for writs of prohibition, and mandamus against the District Judge, Point Pedro.

Nimal Senanayake for Petitioner.

H. L. de Silva, Crown Counsel, for Respondent.

Cur. adv. vult.

July 30, 1962. SANSONI, J.-

This is an application for Writs of Prohibition and Mandamus by the Petitioner (1st Defendant in D. C. Point Pedro Case No. 5279) against the Respondent, who is the District Judge of Point Pedro. It arises out of the following circumstances. Case No. 5279 is a pre-emption action filed by one Annapillai against the Petitioner, his wife (2nd Defendant), and one Velan Kanapathy (3rd Defendant) impugning a deed of transfer executed by the 2nd Defendant in favour of the 3rd Defendant. As part consideration for that transfer, the 3rd Defendant had executed a Mortgage Bond in favour of the 2nd Defendant in a sum of Rs. 3,000.

After trial the District Judge gave judgment for the plaintiff and decreed that the plaintiff should deposit a sum of Rs. 3,500 in Court as the value of the land which he was seeking to pre-empt, and that sum was accordingly deposited. Subsequently, the 1st and 2nd Defendants moved for an order of payment in their favour for the sum of Rs. 3,500 to be applied in part satisfaction of the principal and interest due on the Mortgage Bond, and an order of payment was issued to them for that sum on 15th November 1961.

On 16th December 1961 the widow and children of the 3rd Defendant who had, meanwhile, been substituted in place of the deceased 3rd Defendant, applied to the Court to order the 1st and 2nd Defendants to bring back into Court the sum of Rs. 3,500 drawn by them. The Court ordered notice to issue on all three Defendants and the Plaintiff. The notice required the 1st and 2nd Defendants (1) to bring into Court the sum of Rs. 3,500 as the payment to them had been made per incuriam, and (2) to appear in person on the 22nd December 1961 in respect of the application of the substituted Defendants.

Notice was admittedly served on the 1st and 2nd Defendants, but they did not appear in Court on the notice returnable day or deposit the money. The Judge on that day thought that they should be brought into Court on attachment to show cause why they should not bring into Court the money drawn by them. An attachment was accordingly issued. On the 23rd December the 1st Defendant appeared in Court in Fiscal's custody. The Judge explained to him (1) that the payment order had been issued t

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