DR1EBERG J.—Motte v. Ayideen.
1933Present: Drieberg and Akbar JJ.MOTTE v. AYIDEEN.
201—D. C. Kandy, 40,608.
Mortgage action—Sale of land—Appraised value in excess of plaintiffs claim—Direction of Court not to sell below the appraised value—Mortgage ofseveral lands—Plaintiffs right to purchase.
Where, in a hypothecary action, the land mortgaged has been valuedat a sum considerably in excess of the plaintiffs claim, the Court shouldnot give a direction that the sale should not be below the appraisedvalue.
Where there are several lands mortgaged, the plaintiff should be allowedto purchase any one of them at a price which bears the same relation tohis aggregate claim as the appraised value of that land bears to the totalappraised value of the lands.
PPEAL from an order of the District Judge of Kandy.
Garvin, for plaintiff, appellant.
Ranawake, for defendant, respondent.
December 21, 1933. Drieberg J.—
The learned District Judge amended or gave further direction regard-ing the decree originally entered in this action by directing that thesale should not be for less than the appraised value of the land. It appearsthat the land has been valued at a sum considerably in excess of theplaintiff's claim. In my opinion a provision such as this in these circum-stances in a mortgage decree is not reasonable, and it may even result inmaking the decree wholly unworkable. For what would happen if themortgage-creditor had not the money to meet the excess of the appraisedvalue over his claim and if there were no other purchasers?
The learned Judge however was right in stating that it was beyond hispower to make any amendment in the decree after it had been the subjectof an appeal to this Court, and the plaintiff’s appeal against the refusal ofthe Judge to alter the decree must fail. But the plaintiff has brought thismatter before us for revision. We set aside the directions regarding thesale being for not less than the appraised value made by the learnedJudge on September 6, 1932. The original decree of March 22, 1932,will stand but provision has to be made for the fact that there are 32 landswhich are the subject of this mortgage and it is possible that they may besold separately. The decree makes proper provision for the sale of alllands together, in which case the plaintiff cannot purchase these lands forless than the full amount of his claim and interest. Provision, however,has to be made as I said for the sale of these lands separately, and wedirect that in such cases the plaintiff, if he desires to purchase any one ofthese lands, can only do so for a price which bears the same relation to the
390DALTON A.CJ.—Rudd v. Abdul Rahaman.
whole of his aggregate claim as the appraised value of that land bears tothe total appraised value of all the lands, and he will be entitled to creditfor the amount of that purchase price.
The learned District Judge will embody these directions in the decreeof March 22, 1932. The appellant will pay to the respondent the costsof this appeal. We make no order regarding the costs of the applicationfor revision.
Akbar J.—I agree.
MOTTE v. AYIDEEN