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Feb.il, 1910Present: The Hon. Mr. J. P. Middleton, Acting Chief Justice,
and the Hon. Mr. Justice Grenier.
MOHOTTE v. DISSANAYAKA et al.
D. C., Tang alia, 942.
ta-.^gnge—Seizure of mortgaged land under money decree—Prior regie-,tration of seizure—Mortgage unaffected—Form of mortgage decree.
A registration of a seizure of land under a money decree, in termsof – section 237, Civil Procedure Code, does not affect a mortagege'of thesame land which was executed by -the judgment-debtor prior to theseizure, and which was registered after the registration of the seizure.
A decree ordering specially mortgaged property to . be sold in. default of payment of the money decreed to be due under themortgage renders the mortgaged property " bound and executable.”
PPEAL from a judgment of the District Judge of Tangalla:The facts are fully set out in the judgment of Middleton J. .
A. Jayewardene, for first defendant, appellant.—Section 17 ofOrdinance No. 14 of .1891 does not apply to seizures. The effectof registration. of a seizure is merely to render void, as against allclaims enforcible under the seizure, all private alienations, &c.,after the seizure (Civil Procedure Code, section 238). Registration ofa seizure under a writ does not affect mortgages executed prior to theseizure, though unregistered at the time of seizure. Counsel citedFernando v. Fernando,1 In re Carter,2
De Sampqyo, K.C., for respondent.—Ordinance No. 14 of 1891contemplates the registration of seizures as well. That Ordinancemakes provision for the registration of judgments and orders.Seizures may be classed among “ orders ”. The decree in thisaction is not a mortgage decree. It does not declare the mortgagedproperty “bound and executable”.
Counsel cited 2 Maasdorp 298, 2 Nathan 970, Berwick’s Voet 442(20, 5,3).
Cut. adv. vult,
February 11, 1910. Middleton A.C.J.—
In this case the 'first defendant obtained a mortgage from DonaCornelia of a half share of the property in question by deedNo. 4,008 dated May 23, 1895, registered only on December 1, 1902.On October 12,. 1902, a one-third share plus one-fourth of one-sixthshare of the property in question was seized for a judgment debt ofDona Cornelia and her husband under a writ dated October 12, 1902,but registered on ^November 12, 1902. Tjpon this writ a sale took(1906) 9 N.L ,S. 1.*(1*37) 2 Menzies’ Reports 335.-
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place to the second defendant, and a Fiscal’s transfer dated May 1,1903, and registered May 6, 1903, was issued in second defendant'sname. The first defendant brought an action on his mortgagebond on December 18, 1902, and obtaining a decree on January 16,1903, seized the* property on August 31, 1903. It was sold onDecember 21, 1903, to one Don Andris, and a Fiscal’s transfer datedJanuary 14, 1904, was issued, registered on June 15, 1904. DonAndris 6old it to the first defendant on May 7, 1905, the sale beingregistered on December 4, 1907. The first defendant sold to theplaintiff on May 14, 1905, the sale being registered on May 4, 1907.
This action was brought by the plaintiff to obtain a declaration ofhis title as against the second defendant, and the first defendantwas brought in to warrant and defend the same, or to refund thepurchase money. The issues settled were as follows:—
Is the title of first defendant based on his Fiscal's transfer
to be preferred to that of the second defendant based onhis Fiscal's transfer?
Is second defendant estopped by reason of steps taken in
C. B., Matara, 2,474, from disputing first defendant’stitle?
Was decree obtained in C. B., Matara, 2,474, valid in
respect of premises conveyed?
Has second defendant been in possession since November 15,
1902 (date of Fiscal’s sale to him)?
Damages agreed at ’Bs. 20 a year.
The District Judge on the first issue held that the second defend-ant’s title was to be preferred. He answered the 2nd and 3rdissues in the negative, and held on the 4th issue that the seconddefendant had been in possession since August, 1903, at least, and'gave judgment against the first defendant for the refund of thepurchase money. The first defendant appealed, and for him it wascontended that the ruling of the .District Judge that the registrationof the second defendant's seizure before the registration of firstdefendant’s mortgage would render • the first defendant's mortgagevoid and give a superiority in title to the second defendant couldnot be supported. I think that as the second defendant’s interest.in the land on the seizure was not adverse to the first defendant’sinterest in the mortgage on the land (Ordinance No. 14 of 1891,section 17), the interests of mortgagor and mortgagee are concurrenttill mortgage decree. I think it is clear this is so, and the learnedcounsel for the second defendant did not very seriously contest it.
The first defendant's mortgage was also ante litem motam, andwould not, therefore, be affected by the registration of seconddefendant’s seizure under sections 237 and 238 of the Civil ProcedureCode, which refer to incumbrances after seizure. It .was admittedthat the second defendant’s decree was a money decree. The main9-
Feb. 1J, 1910
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ll, 1910 point taken by the second defendant's counsel was/ however, thatMxdouston the first defendant's decree did not render the property in questionA*C»J*bound and executable, and he cited Voet 20, 5, 3, Berwick's *
Mohotte v. translation 442; 2 Maasdorp 298; and 2 Nathan 970, in supportDiasanayaka 0fcontention, that as the pignut was under the form of the
decree not declared bound and executable, the second defendant’stitle to the land must prevail. My brother, however, assuresme that the form of the decree is that generally in use, and in myopinion it does in effect as it is drawn, declare the property bound andexecutable. The decree orders the specially mortgaged property tobe sold in default of payment of the money decreed to be due underthe mortgage, and I think, therefore, renders the mortgaged propertybound and executable. It is true it does not completely fulfil thedirections in section 201 of the Civil Procedure Code by specifying aday on or before which the money decreed to be due on the mortgageis to be paid, but I think it fulfils the requirements as to whichthe objection has been taken. The second defendant, therefore,,bought the land subject to the mortgage. Don Andris bought itas bound and executable under the mortgage, and so conveyed itto the first defendant, and then to the plaintiff, and his title mustprevail. I would therefore allow the appeal. *
The judgment of 'the District Court must be set aside and judg-ment entered for the plaintiff declaring him the owner of a halfshare of the land in question, with the damages as agreed and withcosts in the Court below. The first defendant will have his costs ofthe appeal paid by the second defendant.
The District Judge was in error in holding that the registrationby the second defendant of his seizure on a simple money decreeon November 12, 1902, before the registration of first defendant’smortgage on December 1, 1902, had the effect of practically wipingout the mortgage and giving the second defendant a clean title uponthe Fiscal’s transfer in his favour. If I understand the DistrictJudge aright, he was of opinion- that the registration of a seizurewithin fourteen days would render any alienation even prior toregistration, but subsequent to Seizure, void. The sections (237 and238, Civil Procedure Code) relating to seizure of immovable propertydo not support this view, for section 237 provides for a seizure beingmade by a notice signed by the Fiscal prohibiting the judgment-debtor from transferring or charging the property in any way, andall persons from receiving the same from him by purchase, gift, orotherwise, and section 238 is clear in its terms, that it is when aseizure has been effected and made known and registered as providedfor in section 237 that any private alienation of the propertyseized by any mode whatever shall be void as against all claimsenforceable under the seizure.
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It seems to me on a lair construction of these two sections that it Pei>- U, 1910is only in the event of there being a concurrence of the two conditionsmentioned in them, viz., seizure and registration, that any private J-alienation, Ac., shall be void. Here there was no question of any Mohotte v.private alienation, because the sale under the decree in first defend- Diseanayakaant’s favour was a forced sale by the Fiscal, and I fail to see howregistration of the second defendant’s seizure, whether withinfourteen days as provided for in section 237 or after eighteen days asfound by the'District Judge to have been the case here, could affectthe title which has now come to plaintiff founded originally upon aFiscal’s transfer executed in pursuance of a mortgage decree obtainedby the first defendant. All the mesne conveyances, have beenregistered, as also the conveyance in favour of plaintiff, and it isdifficult to see how there can be any conflict between the title ofthe plaintiff and that of second defendant. The first defendant’smortgage action was instituted on December 18, 1902, and a decreewas obtained on January 16, 1908, declaring the mortgaged propertybound and executable for the judgment therein. The second defend-ant’s transfer from the Fiscal founded upon a simple money decreewas registered on July 6, 1908, the first defendant’s mortgage havingbeen registered on December 1,. 1902. So that if the conflict isas between first defendant’s mortgage and the second defendant’stransfer, the former by reason of prior registration would prevailover the latter, and the second defendant’s purchase would be subjectto the mortgage. The plaintiff’s position as far as the title to theland in question is concerned i& ha law the same as that of the firstpurchaser, Don Andris, under the mortgage decree in favour of thefirst defendant. To put the matter shortly, the conflict is as betweena title obtained under a mortgage decree, the mortgage being aregistered one, and a title obtained under a simple money decree.
The case would have presented no' real difficulties were it not forthe introduction into it of the question of registration of the seconddefendant's seizure on November 12, 1902. That seizure was ap-parently given such an effect, mainly retrospective, by the DistrictJudge that it extinguished the first defendant’s mortgage, and .rendered void all the conveyances relied upon by the plaintiff. Ithink the District Judge was clearly wrong in his ruling on thispoint. Mr. Sampayo, for the respondent . argued that there was nomortgage decree entered in favour of the first defendant. The formmay be. slightly defective, -but it has been in general use for many -years, and. was always understood to substantially embody a 'hypothecary decree, and in fact it does contain such a decree. Ithink, therefore, that there is no substance in the objection. Iagree to allow the appeal with costs, as indicated by my brother’sjudgment.
MOHOTTE v. DISSANAYAKA et al