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Present: Lascelles C.J. and Pereira 3.
MOHJDEEN et dl. v. APPUHAMT et al.
403—D. C. Batnapura,
Cjvil Procedure Code, «. 643—Land seized under mortgage decree—Claimby purchaser at a Fiscal's sale who has no Fiscal’s conveyance—Claim upheld—Decree-holder must bring an action under 8, 347.
It is only a grantee, lessee, mortgagee, or other incumbrancerwho claims an interest in land, sought to be affected by an actionunder chapter XI/VT. of the Civil Procedure Code on a validregistrable Avmmimt who is entitled to the notice of action providedfor by section 643 of the Code.
Where land seized on a mortgage decree is claimed by a purchaserof it at a fiscal's sale, who, however, has not yet obtained thefiscal's conveyance, and the claim is allowed, the proper remedyof the decree-holder is an action under section 247 of the CivilProcedure Code.
A Fiscal's conveyance cannot refer back to the date of the actualFiscal's sale when, between that date and the date of the convey-ance, the debtor has been deprived of bis legal estate by means ofa sale of the property on a proceeding that i6 effectual in law asagainst the party obtaining the conveyance.
fjlHE facts appear from the judgment.
Balasingham, for the plaintiffs, appellants.—At the date of themortgage action No. 11,564, C. R. Ratnapura, the defendants hadnot obtained a Fiscal's transfer. The title did not, therefore, vest 'in the defendants at the date of the mortgage action. Cader Saiboneed not and could not have recognized the defendants as purchasersAnd given them notice. The mortgage decree was binding on the.defendants.
The fact that plaintiffs did not bring an action under section 247of the Civil Procedure Code, when the defendants’ claim was upheld,does not bar plaintiffs’ rights in the present hypothecary action.The procedure adopted by the plaintiffs is in accordance with thedecision of the Full Bench in Slema Lebbe v. Banda x. See alsoMoraes Vederala v. Andris Appu2
If the plaintiffs had brought an action under section 247 of theCivil Procedure Code they would have succeeded, as the defendantshad no title at the date of the seizure. See Silva v. Nona.3
But an action under section 247 would have been useless, as theFiscal's transfer, when obtained, would have related back to the date
1 (2***) 1 A. C. R. 72.,8 2 C. L. R. 91.
» 10 N. L. R. 44.
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of the sale, and the proceedings under section 347 would not bindthe 'defendants. Plaintiffs could have easily brought an actionunder section 247, but they did not do so in view of the rulings ofthis Court.
H. Morgan, for the defendants, appellants,.—The plaintiffscannot bring a hypothecary action now as the mortgage bond ismerged in (he decree to 11,564. There iB no longer any bond onwhich he oan bring an action (The Government Agent v. HenderiokHamy 1). Plaintiffs did not bring an action under section 247 of theCivil Procedure Code within fourteen days of the order upholdingthe olaim of the defendants. The order in the 'claim inquiry is'conclusive as to the rights of the parties.
Balaeingham, in reply.—The doctrine of merger of the mortgagebond in the judgment has been repudiated in several later judgments.See 14 N. L. B. 177. Plaintiffs did not bring an action undersection 247, as it was held that the correct procedure was to bringan hypothecary action, and not an action under section 247.
Cur. adv. vult.
December 29, 1913. Pereira J.—
Pathumuttu, .the owner of the parcel of land in claim in this case,mortgaged it in 1901 on a duly executed bond in favour of CaderSaibo. The bond was sued upon by Cader Saibo in November, 1910,in case No. 11,564 of the Court of Beques.ts of Batnapura broughtagainst Pathumuttu, and the usual .money and mortgage decreeswere obtained by him thereon in January, 1911. On a writ againstPathumuttu in another case, namely, case No. 10,922 of the Courtof Bequests of Batnapura, the parcel of land in question was seizedand sold by the Fiscal in October, 1910, to the present defendants,who, however, obtained the formal Fiscal's transfer only in March,
In the meanwhile, that is to say, in March, 1911, the land wasseized in execution of the .writ issued in case No. 11,564, and it waBclaimed by the defendants in April, 1911, and their claim Was upheldin November, 1912, but no action under section 247 of the CivilProcedure Code was brought either by Cader Saibo or the presentplaintiffs, who have been substituted in his place as plaintiffs.
The District Judge has dismissed the action on the ground,apparently, that the mortgagee had failed to give the defendantsthe notice required by section 643 of the Civil Procedure Code ; but,clearly, it is only a grantee, lessee, mortgagee, or other incumbrancerwho claims an interest in the land sought to be affected by an orderunder chapter XLVI. of the Code on a valid registrable documentwho is entitled to such notice, and I do not think, that the reason forthe District Judge’s decision can be sustained.
i so. L. R. 86.
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But it has been argued that on the question of title to the land,or rather of the plaintiffs' right to have it sold for satisfaction of thedecree in case No. 11,564, the plaintiffs are concluded by theiromission to bring an .action under section 247 of the Civil ProcedureCode, and as against this contention the decision of this Court inthe case of Sterna Lebbe v. Banda 1 has been cited. Now, in anaction under section 247 of the Civil Procedure Code, what has to bedetermined is the question as to the rights of parties at the date ofthe seizure in execution. It has been so decided by the Full Courtin the case (Silva v. No-na2) peculiar applicable to the present•ease by reason of. the judgment-debtor there being very much in the'Same position as the claimant in the present case, that is to say, inthe position of a purchaser at a Fiscal's sale who has obtained histransfer after the seizure that gave rise to the claim and the proceed-ings thereunder.; and, indeed, it seems to me to be a question whether,even where a claim to property seized in execution of a mortgagedecree made by a grantee or puisne incumbrancer is allowed, anaction under section 247 cannot be instituted against him, anjl anappropriate order made by the Court, taking into consideration hisrights and those of the prior mortgagee, but this question must nowibe deemed to be set at rest by the decision in the case of SlemaLebbe v. Banda.1 That case, however, has no application, to thepresent, inasmuch as there the claimant had armed himself with aformal transfer before even .the very institution of the action on the-prior mortgage, and the reason given for his decision by Bonser
J. is that if the mortgagee had brought an action under section247, “ that action would have necessarily failed, because the property,could never have been sold in execution of the decree against themortgagor.. ”
In the present ease., however, at the date of the seizure in executionof the mortgage deeree, the claimants (present defendants) had notransfer in their favour, and therefore no title to the land seized,And hence an action against them under section 247 of the Code bythe mortgagee would not necessarily have failed- It has, however,heen said that, in the circumstances of the present case, an order■against the defendants in such an action would have been nugatory,It being liable to be defeated the moment they obtained a Fiscal's.conveyance in their favour ; but I think it is clear that a -Fiscal’sconveyance can be of no avail after the debtor has been deprived of-the legal estate by means of a sale of the property on a proceedingrendered effectual by law as against the party obtaining suchconveyance.
For the reasons given above I would dismiss the appeal with costs.Lascblles C.J.—I agree.
(I89S) 1 A. C. R. 72.
* 10 N. L. R. 44.
MOHIDEEN et al v. APPUHAMY et al