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Present : Bertram C.J. and Jayewardene A.J.
FALKNER et al v. SOYSA.
127—D. C. (Inty.) Colombo, 8,142
Mortgage action—Sale in execution—Application to May sale by. secondarymortgagee—Party ■ interested in execution—Civil Procedure Code,s. 343.
An application for the stay of execution proceedings undersection 343 of the Civil Procedure Code may ne made by a personinterested, even though he is not a party to the action. Thesection applies to execution proceedings under a mortgage actionas well.
CTION on a primary mortgage. The secondary mortgagee,who was not a party to the action, applied for a stay of
execution proceedings under section 343 of the Civil Procedure Code.He contended that unless the sale is stayed his interests may beprejudiced, urging that the property was already the. subject of apartition ' action and would be sold under that action. It wassuggested that, if the sale be postponed until the partition action wasdisposed of, it was possible that the price realized and allotted to theshare, in which both the plaintiffs and himself were interested, wouldbe sufficient to discharge the debt of the plaintiff and leave a surplusavailable for the satisfaction of his mortgage as well. The DistrictJudge allowed the application subject to certain conditions.
Garvin, for plaintiffs, appellant.
H. V. Perera, for respondent.
September 12, 1924. Bertram C.J.—?
This is an appeal from an order of one of the District Judges ofthe Colombo District Court which, under section 343 of the CivilProcedure Code, orders a stay. of execution for six months andcertain terms as a condition of that stay of execution. The personapplying' for the stay of execution is not a party to the action,, but isa secondary mortgagee.. He intervenes tinder that section, claimingthat unless the -sale is stayed his interests may be prejudiced, andurging that the property is already the subject of a partition action,and will almost certainly be ordered to be sold as- the result of thataction. He and the plaintiffs are interested in one-sixth of the pro-perty, and he suggests that it would bet most inexpedient that .thatshare should be sold in its present undivided condition, and that, 'if thesale is postponed until the partition action is disposed of, it may bethat the proportion of the price realized and allotted to the share, which1 5
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is the subject of the action might not only discharge the debt of theplaintiffs, but leave a surplus available for the satisfaction of his ownsecondary mortgage.^
Two legal objections have been taken to these proceedings. Thefirst is that the petitioner not being a party to the action cannot beheard under section 843. We do not think that this objectioncan be sustained. There is nothing in the section to prevent a personinterested in the matter being heard. On the contrary, it is declaredthat all persons interested in the matter of the execution should bemade parties. If such persons, though not themselves parties, maybe made parties for the purpose of the application, there seems'every reason why they should be allowed to make the application,if necessary, themselves. It is easy to imagine cases in which theinterests of such persons may be very seriously prejudiced unlessthey were allowed to apply to the Court under this section.
The second objection is that section, 343 docs not apply to-execution proceedings in pursuance of a mortgage action. We areclearly of opinion. that this objection also cannot be sustained.It has been held in several decisions of this Court that this section!as well as other neighbouring sections, coming as they do under theheading of “ general provisions, " are not necessarily limited toordinary execution proceedings. The objections of law, therefore,must, in my opinion, be disallowed.
On the merits, however, I confess that the case is one of somedifficulty. We have sent for the partition proceedings, and we findthat the defendants are extremely numerous. They have not allbeen served. We cannot tell what issues are likely to be raised,nor can we conjecture within what time the action is likely to bedisposed of. The property is undoubtedly extremely valuable, andthere is perhaps some possibility of a surplus being realized if thesale is postponed until the whole property is dealt with under thepartition decree. But the plaintiffs are entitled to press for therealization of their security. It is said that one of them is a widow,and is anxious to secure the money due to her. I do not think thatwe should be justified in postponing the remedies of the plaintiffsunder the conditions of the present case, and I would, therefore,with some reluctance, allow the appeal and* set aside the order ofthe learned District Judge, with costs, both here and below.
I agree with the judgment just delivered of my Lord the ChiefJustice, particularly with the observations as to the scope andconstruction of section 343 of the Civil Procedure Code. I alsothink that the learned Judge had not before him sufficient groundsfor staying the sale of the property under the plaintiffs' hypothecary-decree.
FALKNER et al v. SOYSA