Present : Porter and Schneider JJ.
BANDA v. DHARMARATNft.
97—D. C. Kegalla, '5,367.
Action on a mortgage loud against mortgagor and purchaser—Applicationafter trial to add the purchaser, pendente lite, as1 party to action—Civil Procedure Code, s. IS—Power of Court to delay entering upof decree—Civil Procedure Code, ss. 187 and 188—Policy of theCode to avoid multiplicity of actions.
Plaintiff instituted an action on a mortgage bond against themortgagor (first, defendant) and the purchaser from the mortgagor(second defendant). ' The lis pendens was not registered nor were theprovisions of chapter XliVI of the Civil Procedure Code compliedwith. After trial judgment was reserved, and before judgment wasdelivered plaintiff ' moved that judgment be deferred till an appli-cation to add a party to whom the second defendant had sold theproperty peudiDg the action was considered.
Held, that the Court had' power under Section 18 of . the CivilProcedure Code to add a party at that stage, and that plaintiff'sapplication should hav©' been allowed under the circumstances.
Schneider J.->—“ The policy of the Civil Procedure Code is toavoid a multiplicity of actions, and therefore, , where the factsbrought to the notice of the Court before it has finally disposedof the action are such that the addition of a person would tendeffectually to deal with all the questions involved, the Court Bhouldnot put difficulties- in the way of parties to the action who seekto add such persons, but should stay its hand and afford the partyseeking to do so an opportunity to add such persons as bray benecessary to finally determine all questions arising in the action. ”
A District Judge has no power .to delay the entering of^he decreeonce judgment has been pronounced.
T HE facts.appear from the judgment.
ft. L. Pereira, for the plaintiff, appellant.
Kenneman, for the second defendant, respondent.
( 211 )
November 1, 1922. Schneider J.—1922.
On January 12, 1920, the plaintiff instituted this action for the _^an^a *»•realisation of a mortgage created in his favour by the first defendant.
He alleged that the second defendant was in possession claimingto be a purchaser of the land mortgaged subsequent to the date ofthe mortgage. The first defendant offered no defence. The seconddefendant pleaded several defences and disclosed that the landmortgaged was seized and sold on January 8, 1920, and was pur-chased by her, and that she obtained a transfer from the Fiscal onAugust 9, 1920. A trial followed, but upon an appeal to this Courta fresh trial was directed by the judgment of this Court datedOctober 21, 1921.
This trial took place on June 27, 1922, and was concluded onthat date. The judgment was deferred for July 18, 1922. As towhat happened on that day, there is the affidavit of Mr. AdvocateMol&mure, which I accept without hesitation.
In this affidavit he states that the plaintiff’s proctor handed tohim a motion early that morning. This motion is on the record.
It is dated July 17, 1922, is signed by the proctor for the plaintiff,and is to the effect that the second defendant had transferred herinterest in the property mortgaged on January 25, 1922, to one Din-giri Bandara Mahatmaya—a fact which had been concealed up tothat date, and that “ decree be not entered till the summons areissued to the said purchaser, and that he also moved for a summonsqn the said purchaser.”
This motion is characteristic of the motions which some proctorsoccasionally make without considering the procedure which theyshould follow. The motion was clearly intended to ask that theCourt should stay its hand until the party named was added, andthat the plaintiff be allowed the opportunity to take steps to addthat party.
It was not correct to ask for a summons to issue in the firstinstance upon the party sought to be added. The correct procedurethat should have been followed for that purpose was pointed out.and laid down in Loos v. Scharenguivel1 so far back as 1891. Itwas there pointed out that the procedure for adding a party undersection 18 of the Civil Procedure Code should be that the partyseeking to bring in a third person should obtain ex parte, an ordergiving leave to serve a notice on the person whom he desires'* tobring in, and the question whether such person ought to.be joinedshould be considered and dealt with in his presence and in that ofthe parties already on the record.
It is evident, therefore, that the latter part of the motion of theplaintiff’s proctor that summons should issue is not in order. It isunfortunate for his client that the plaintiff’s proctor should have
13 C.L. It. 47.
.( 212 )
1022. blundered in the manner he has done in respect of procedure whichSchxbu>br ^ad been laid down over thirty-one years ago. But that blunderj. has no bearing upon the situation which has developed..
Banda v. On July 18, 1922, Mr. Molamure states that before judgment wasDMarmaratne delivered, he moved that it be deferred till the application was con-sidered for the addition of the party to whom the property wasalleged to have been transferred during the pendency of the action.The learned District Judge appears to have regarded the motionof Mr. Molamure strictly according to the wording of the motionin writing, qnd to have told Mr. Molamure that he must deliver hisjudgment then and take notice of the motion to defer, the enteringof the decree should be given to the second defendant and its con-sideration be taken up. later. He accordingly pronounced hisjudgment, which is. in favour of the plaintiff against both defendantsas prayed for, that is, for the sum claimed in the plaint upon thefooting of a hypothecary decree.
The matter of the plaintiff's motion was considered by the DistrictJudge on July 28, 1922, when he held that he had ho power to deferthe entering of the decree in terms of his judgment' He directedthat decree should be entered in terms of his judgment. From thisorder the plaintiff appeals.
His appeal is dated August 8. It is evident that if the appeal -be regarded as from any order made on July 18, it is out of time.From the petition of appeal it is clear that the plaintiff’s proctorregarded the appeal as from the order ref using' to; defer the enteringof the decree on July 28. To my mind the learned District Judgewas quite right in so refusing,/ ' The reason given by him is good,viz., that he had no power to delay the Entering of the decree oncejudgment had been pronounced. ‘
Judgment and decree an&.'defined in the Civil Procedure Code,..and the provisions in sections 187 and 188 of the Code make itplain that the decree must follow as, of course, when the judgment hasbeen pronounced. – It seems to me that the written motion shouldhave been that the Court should not decide the action or pronouncejudgment till the.plaintiff had taken steps to add the person whose,name was disclosed as a party to the action. It would accordingly.appear that the motion was not rightly conceived in either of thetwo matters to which it referred. The plaintiff is also to blamein that he omitted to register his “ Us pendens.” Had the provisionsof the law been followed in that respect, he would not have foundhimself in the present predicament.
Two questions arise for decision:-—
Could a. fresh party be added to the action at the stage of
it at which the application was made.
Should the plaintiff's application have been allowed.
In my- opinion, the answer to both these questions is in theaffirmative. .
( 218 )
The language of section 18 of the Civil Procedure Code that the . 1982.Court " may at any time order that the name of any person whose Sckneidxrpresence before the Court may be necessary, in order to enablethe Court effectually and completely to adjudicate .upon and settle Bunda v.all the questions involved in the action " is wide enough to cover DhnrmaroitM^this- case and to allow the addition of ar fresh party at any timebefore the decision of the notion, that is, before the judgment ispronounced. As I read that section I have no doubt, but that itis the intent-ion and meaning of that section.
But was the presence of Bandara Mahatmaya, the person disclosedin the action, necessary to enable the Court effectually and com-pletely to adjudicate upon and settle all the questions involved inthe action ? I think i.t was. For a mortgage decree to be effectiveagainst a person in possession, that person should be made a partyto the action, unless the same result could be attained by virtueof the provisions of chapter XLVI of the Civil Procedure Code.
Here, the plaintiff does not, and so far as the facts show cannot,rely upon them. He might have relied upon the doctrine of " lispendens ” so far as Bandara Mahatmaya was concerned:This,, too,
he cannot effectually rely upon, upon the actual facts, as he had notregistered his “ Us pendens ’' (vide the Land Registration Ordinance,
3891, as amended by section 3 of Ordinances Nos. 29 of 1917 and21 of 1918).
The only remedy, ^herefore, open to the plaintiff is the additionof Bandara Mahatmaya as a party to the action. His blunderingsshould not' deprive him of this right, because the refusal to allowhim to add Bandara Mahatmaya -as a party would be tantamountto a denial of justice, inasmuch as the judgment in his favourwould be 'barren and ineffective, unless it bound the land in whose-soever possession it might be.
The second defendant, who alone opposed the motion of' theplaintiff, had really no concern in the matter. The addition ofBandara wotdd not have made any difference to her in the action,at least, so far as I am able to see upon the facts now on record.
But her counsel,' Mr. Bartholomeusz, addressed an ingenious argu-ment. He argued that this action was instituted m January, 1920,that Bandara Mahatmaya had purchased the land in January,
1922, that an action has to be decided upon the facts as they existedat its institution, and that, therefore, the plaintiff, had no causeof action against Bandars Mahatmaya at the date of the institutionof this action.
1 was-taken .at first with this argument, but upon considerationI am not disposed to uphold it. The. policy of the Civil ProcedureCode is to avoid a multiplicity of actions, and, therefore-, where thefacts brought to the notice of the Court before it has finally disposed,of the action are such that the addition of a person would tendeffectually to deal with all the questions involved, the Court should
( 214 )
1982. /not put difficulties in the way of parties to the action who BeekSohstodbb *° such persons, but should stay its hand and afford th© partyJ. seeking to. do so an opportunity to add such persons as may benecessary to finally determine all questions arising in the action.
Dharmaratne por ^©g© reasons acting in revision I would set aside all theproceedings on and after July 18t and direct that the plaintiffshould take the necessary steps within a time to be fixed by theDistrict Judge, for adding Bandara Mahatmaya and for the con-tinuance of the action thereafter.
In the circumstances each party will bear his costs in this Court.Poster J.—>-1 agree.
BANDA v. DHARMARATNE