The Bank of Bengal vs R. Currie and Co.

E. Jackson, J.—Of the two questions in the case of Bank of Bengal v. R. Currie and Co., which the learned Recorder of Rangoon has referred to this Court, it seems to me that we can only give an answer to the first. The second question does not arise in the suit. It is a question relating to the execution of the decree in the suit which has been referred, and of the execution of other decrees; but no application has as yet been made for the execution of the decree in this suit, and we are totally unacquainted with any of the circumstances relating to the other decrees. As to the first question, taking the facts of this suit to be that, on the presentation of the plaint, the defendant then and there appeared and confessed judgment, I think that the Judge was not obliged at that time to hear the defendant. The Judge was at liberty to follow the ordinary procedure of the Court, and to order that the hearing of the case should be fixed for a certain date, and to decline to hear the defendant until that date arrived. Even if section 98 applies, as has been suggested, that section lays down that when the parties are agreed in a suit, the decision of the suit shall be passed in accordance with such agreement, but no time is fixed. Even if the agreement is filed on any day antecedent to that fixed for hearing, the Judge is not bound to consider the suit in any way until the date fixed for hearing. Certainly if the Judge entertains any doubts as to the ideality of the parties or their good faith, he should not pass an immediate decree, but should take up the suit on the date fixed for its hearing, and then pass what decree is proper.

On the other hand, it seems to me that every Judge has a discretion where parties have come to a mutual agreement, or where the defendant has confessed judgment, to decide the suit at once in accordance with such agreement or confession. It is, in most instances, for convenience of the parties, as well as of the Court, that such decrees should be passed without delay. But it is obvious that where there is any doubt of the good faith of the parties or of their identity, the Court would not exercise that discretion, but would allow the case to come an at the regular fixed time. In the case now under reference, the learned Recorder gave the plaintiffs a decree on the date on which the defendants confessed judgment. He had a discretion to do so. The decree was a legal decree, and the plaintiffs are entitled to have it dated on the day on which it was passed.

Markby, J.

In this case, I think the first question pub to us by the learned Recorder ought to be answered in the affirmative.

I think that the defendants having voluntarily appeared in Court, the necessity of serving a summons for appearance was dispensed with; and that the defendants having further admitted the debt, the Court had no other course than at once to give judgment for the plaintiffs, provided of course that it was satisfied of the identity of the defendants, or that the advocate who appeared for them was duly instructed. I agree with the learned Recorder in thinking that do question of fraudulent preference; could then he gone into.

At the same time, I fully concur with the learned Recorder in considering the state of the law most unfortunate, which in the case of an insolvent defendant (the only case in which priority is of any importance) permits the selection by him which of his creditors shall be paid in full, or as is generally the case, which shall be paid at all. Indeed the present procedure is easily capable of being abused still further, and as I believe very frequently is so. In many cases the first in the list of attaching creditors is really only a nominal creditor acting on behalf of the defendant. This is the state of the law all over India and in large commercial communities the evils of such a system are specially apparent.

I may mention however that, in my opinion, if by the practice of the Court there are specific rules as to the order in which cases are to be called on, I do not think the Judge is bound to dispose of a case, either when the plaint is filed or at any subsequent time before it is called on in regular course. I do not think the voluntary appearance of the defendant and his willingness to admit the debt make any difference in this respect; and I have found that strict rules as to the order in which cases, both defended and undefended, are to be heard, of some use in preventing the evils to which the Recorder alludes. I think we should not be justified in answering the other question put by the Recorder, as the parties between whom it will arise are not-before us.