Motha v. Fernando.
Present: de Kretser J.
MOTHA v. FERNANDO.
42—C. R. Nuwara Eliya, 15,070.
Rates on mortgaged premises—Payment by mortgagee—Action to recover from
mortgagor—Municipal Councils Ordinance (Cap. 193), s. 147.
Where a mortgagee pays rates due to a local authority, on behalf ofa mortgage, in respect of the mortgaged premises, an implied promiseby the mortgagor to pay the mortgagee cannot be inferred in the absenceof evidence that such payment was made under compulsion.
Where a mortgagee pays such rates after a warrant has been issued,he is entitled to add the amount so paid to his claim on the mortgagebond.
Where a mortgagee omits to add the amount so paid when suingon the bond, he is barred by section 34 of the Civil Procedure Code fromsuing subsequently.
Velaither v. Nallathamby (2 C. L. R. 120) distinguished.
1 12 C. L. W. 108.- -i ('■ If. R. 1)6.
DE KRETSER J.—Mot ha v. Fernando.
PPEAL from a judgment of the Commissioner of Requests, NuwaraEliya.i
E. F. N. Gratiaen (with him S. Nadesan), for the defendant, appellant.F. A. Tisseverasinghe (with him J. A. P. Cherubim), for the respondent.February 20, 1942. de Kretser J.—
The defendant was the owner of certain premises situated within thelimits of the Urban Council of Nuwara Eliya and as such liable to payrates. Plaintiff had a mortgage of the premises and put her bond insuit and eventually purchased the property. During the pendency of themortgage the plaintiff, on an unspecified date, paid Rs. 81.66 as ratesdue on the premises. After she purchased the property she paid afurther sum of Rs. 267.90 as rates. She then sued to recover the moneyso paid and restricted her claim to Rs. 300, in order to give the Court ofRequests jurisdiction. "
The learned Commissioner gave judgment for plaintiff and the defendantappeals.
There are two reasons why plaintiff’s claim should not succeed, viz..(1) There is no evidence that plaintiff was compelled to pay on eitheroccasions. This circumstance distinguishes it from the case of Velaitherv. Nallathamby1 cited by the trial Judge. (2) The plaintiff bought theproperty subject to the legal hypothec on it. The second payment wasin discharge of this hypothec and she cannot seek to recover from thedefendant what she was herself under a liability to pay.
Mr. Tisseverasinghe argued that plaintiff paid the first sum of moneyonly after a warrant of distress had been issued. There is no evidenceto this effect and the facts stated at the trial and in the judgment do notsuggest that this whs the case nor does the circumstance that plaintiffcited the Chairman of the Urban Council to produce the receipts for thepayments made and did not require him to produce any warrant. Suchan important piece of evidence would not have been left undisclosed.Besides, it is most unlikely that a warrant would issue for only a partof the arrears.
It is true that- defendant was originally liable to pay and the plaintiffhas discharged the liability, but before an implied promise to paycan be inferred equitably, there. must be evidence of the element ofcompulsion. It is not even as if compulsion were inevitable for therates may have been levied by distress of movable property of the defendantjor even of a tenant. It may even have been waived in certaincircumstances.
There is another objection. Section 147 of chapter 193, which applies,distinctly states that when a mortgagee pays after a warrant has beenissued he is entitled to add the amount so paid to his claim on the mortgagebond. Note, it is only after a warrant has issued and danger is imminent,and the right is given only to a mortgagee. The provision is on the footingof legal rights and provides for a quicker way of recovery, viz., by addingthis amount to the mqrtgage debt instead of suing by separate action.
■ 2C.L. R. 120.
DE KRETSER J.—Ramalingam v. Kailasapillai.
When, therefore, the plaintiff paid the first sum of money, if she didpay it under compulsion in order to save her security, she should haveadded the amount paid to her mortgage debt, by amendment of herpleadings, if necessary. Had she done that she would probably not havebeen allowed to buy the property below the amount of her claim. Thatis the usual condition imposed. Besides, section 34 of the Civil ProcedureCode required her to sue for the full amount of her claim:If she
relinquished or omitted to sue for any part, as she has done in this verycase, she cannot sue again for it.
Plaintiff fails. The appeal is allowed with costs. The decree enteredwill be set aside, and plaintiff’s action dismissed with costs.
MOTHA v. FERNANDO