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Present : Lascelles C.J. and De Sampayo A.-J.
ARUMUGAM v. THAMPU et al.
48— D. C. Jaffna, 7,690Appeal—Interlocutory order—Privy-Judgment obtained by third partyagainst mortgagor after execution of mortgage—Is mortgagee boundby the decree against the mortgagor t
Interlocutory appeals in the course of a trial, having the effect ofsuspending the proceedings, are generally to be deprecated, whenthe matter of such appeals may well be brought up at the finalappeal. But where the point is not a mere incidental matter, butgoes to theroot of the case,aninterlocutory appeal isconvenient,
especially ifitwould preventnecessary, evidencebeingshut out,
and thus obviate a second trial for the reception of such evidence.
A judgment is not conclusive against a person as privy in estateto a party litigant, unless it is shown that he derives title under thelatter by an act subsequent to the commencement of the action.
A judgmentobtained againstamortgagor oflandafter the
mortgage isresinter olios actaasto a mortgagee,whowas not a
party to the action.
fJlHE facts are set out in the judgment.
Kanagaeabai, for the plaintiff, respondent.—The learned DistrictJudge has not delivered judgment in the case. He has only decidedone issue, and fixed the case for trial on the other issues. No appeallies against the decision of that issue. The appellants should havewaited till decree was entered up in this case, and then appealedon all matters.
Balaeingham, for the first and second defendants, appellants.—An appeal lies against any judgment, decree, or order pronouncedby a District Court, except where such right is expressly disallowed.(See section 75 of the Courts Ordinance.) This is an “ order ” withinthe meaning of section 5 of the Civil Procedure Code. [LascellesC.J.—An order is defined to be the formal expression of the decisionof a Civil Court. There is no formal expression of a decision here.]It has been held by the Full Court in Peris v. Perera1 that an orderrefusing to frame an issue is “ a formal expression of a decisionwithin the, meaning of section 5 of the Civil Procedure Code, andthat an appeal lay against such an order. See also Appuhamy v.Mudianse.2 If an order refusing to frame an issue is an appealableorder, an order deciding an issue is also an appealable order.
» (1906) 10 N. L. B. 41.* 9 A. C. R. 160.
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1*12. In any case this order of the District Judge goes to the very rootArumugam *be case, and practically decides the whole case. It shuts out a»>. Thampu large volume of evidence. If the Supreme Court holds in favour ofthe appellant on this issue of law after the whole case is decided, itwould necessitate a second trial.
[Their Lordships, without making an order on the preliminaryobjection, heard the appeal on the merits.]
The first and second defendants are not privies of the third and'fourth defendants. The plaintiff obtained judgment against thethird and fourth' defendants after they had mortgaged the land to the-first and second defendants. The first and second defendants arenot bound by any decision obtained by the plaintiff against thethird and fourth defendants after the mortgage. See Halsbury'sLaws of England, vol. 13, p. 346, section 480; Hukum Chand 186,-Kuda Banda v. Dingiri Banda;1 Caspersz on Estoppel, Part II..pp. 172, 162..
Eanagasahai, for the respondent.—The appellants are privies ofthe third and fourth defendants. Counsel cited Amir Alt’s Law ofEvidence 135, 136, and 137.
Cur. adv. vult.
May 21, 1912. De Sampayo A.J.—
The facts of the case, so far as they are material to this appeal,are these. One Sanmugam, who was the admitted owner of a land,.ottied certain shares in 1853 to one Muttupulle, among whose heirsare the third and fourth defendants. In 1907 the plaintiff, allegingthat he was a son and heir of Sanmugam, brought the action C. R.Kayts, 8,087, against the third and fourth defendants and certainothers as heirs of Muttupulle to redeem the mortgage. In thataction the fact of the plaintiff being a son of Sanmugam was put inissue. The Court found in favour of the plaintiff on that issue, andin the result gave him judgment. In the meantime the third andfourth defendants had mortgaged to the first and second defendantscertain shares of the land which they derived from some otherparties, who are alleged to be the true heirs of Sanmugam.
Subsequently to the decision of the Kayts action, the first andsecond defendants, who were no parties to that action, sued thethird and fourth defendants on their mortgage in the action C. R.Jaffna, 7,391, and obtained judgment and an order for sale of themortgaged property under section 201 of the Civil Procedure Code.On the property being advertised for sale by the Fiscal under thatorder the plaintiff claimed the property, but his claim was rejectedby the Court, as there had been no seizure as in an ordinary case ofexecution. The property was ultimately sold, and purchased by thefirst and second defendants.
> (1911) 14 N. L. R. 145.
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The plaintiff brought the present action against the defendants,alleging that “ the third and fourth defendants have no salableinterest to any. share of the said land, and the wrongful sale of thesaid shares affects the plaintiff's right to the said land," and prayingthat the third and fourth defendants may be declared not to have.any salable interest in the land, and that the sale may be cancelled.
In the plaint the plaintiff set out the circumstances of the aboveaction—C. R. Rayts, 8,087—and pleaded the decree therein as resjudicata as against the third and fourth defendants. The first andsecond defendants in their answer took upon themselves to deny,what was not in fact asserted by plaintiff, that the. Rayts case wasres judicata against them. However, an issue was stated at. thetrial as to whether the decision in that case as to the plaintiff beinga son of Sanmugam was binding on the first and second, defendants,and a further issue, I take it as an alternative issue, was also statedof consent as to whether the plaintiff was a son of Sanmugam. TheDistrict Judge heard argument on the preliminary issue of law, andheld that in the circumstances above recited the first and seconddefendants wen* privies of the third and fourth defendants andwere bound by the decree in C. R. Rayts, 8,08^, and so he decidedthe issue in favour of the plaintiff, and fixed the case for trial on theother is&ues The first and second defendants appealed.
Mr. Ranagasabai, for the plaintiff-respondent, took the preliminaryobjection that no appeal lay on the ground that there was no appeal-able order. We, however, heard counsel on the appeal. So farthere was only a decision on one of the issues in the case, but it wasan important issue, and the decision thereon practically amountedto a refusal to hear evidence on the alternative issue of fact, whetherplaintiff was a son of Sanmugam. No doubt interlocutory appealsin the course of a trial, having the effect of suspending the proceed-ings, are generally to be deprecated, when the matter of such appealsmay well be brought up at the final appeal. But where, as in thiscase, the point is not a mere incidental matter, but goes to the rootof the case, an interlocutory appeal is convenient, especially if itwould prevent necessary evidence being shut out, and thus obviatea second trial for the reception of such evidence. In this case theplaintiff's claim turns upon the fact of his being son of Sanmugam,for otherwise be. has no right to the land at all. I think we rightlyheard the appeal on its merits.
In my opinion the decision appealed from is erroneous. It willbe seen that this is not an action rei vindication where the plaintiffasserts his title against the first and second defendants as purchasersat the execution sale, but an action where the plaintiff seeks toshow that the first and second defendants* mortgagors, the thirdand fourth defendants, have no title as against , him, and on thatground to have the very execution sale set aside. The form of actionis rather novel, but I 6ay nothing as to that now. But the action
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1912. being such as it is, it is the first and second defendants’ position a»Ih, samfayo mortgagees that is attacked. They are, therefore, entitled to raise■A.J. any defence available as at the date of the mortgage. This mort-Arumugam gage was prior in date to the action C. R. Kay.ts, 8,087, and to the«. Thampu decree therein in favour of the plaintiff against the third and fourthdefendants, and, therefore, the decree to which the first and seconddefendants were no parties cannot affect them, on the principle thata judgment is not conclusive against a person as privy in estate to aparty litigant, unless it is shown that he derives title under thelatter by an act subsequent to the commencement of the action. Ajudgment obtained against a mortgagor of land after the mortgageis res inter alios acta as to a mortgagee who was not a party to theaction, Natal Land and Colonization Co. v. Good.1.
The appeal should, I think, be allowed with costs.
Lascelles C.J.—I entirely agree.
. Appeal allowed.
» L. H. 2 P. c. m..
ARUMUGAM v. THAMPU et al