Fernando v. SMahanlila
Present: Samerawickrame J., and Wijayatilake. J.
P. C. S. FERNANDO, Appellant, and W. V. 3 LA HAN TI LA (GovernmentAgent, Colombo District) and another, Respondents
S. C. 9S/69—Application in Beiision in D. C. Colombo, 9995/MB
jVortgage—’Hypothecary sale—Pou.er of Court to order sale of mortgaged propertyin blocks.
■Where the mortgaged properly is ordered by Court to be sold in order tosatisfy the amount due under a hypothecary deerco, it is not necessary that theentire property should he sold. Jt is open to the Court to direct that the saloof tho Innd should bo in blocks, and that only such blocks be sold as wouldsuffice to realize the amount duo under the decree.
Ceylon Transport Board v. Thungadasa (1970) 73 N. L. R. 211.
SAMERAWICKRAME, J.—Fernando v. MahantHa
Application to revise an Older of the District Court, Colombo.
II. IF. tJayewardene, Q.C., with K. N. Choksy, for tlio 2nd defendant-petitioner.
P. N. Wikramanaycike, for the 1st defendant-respondent-.
D. S. Wijeioardene, for the plaintiff-respondent-
Fobruary 15, 1971. Samerawickrame, J.—
Tire property mortgaged is a valuable property situated in a residentialarea in Colombo with a large bungalow. The learned District Judge hasgiven directions that the property should bo sold in blocks in tho orderstated by him until the amount decreed is realized.
Learned Counsel for the 2nd defendant-petitioner has submitted thatit is not comjjetent for the learned District Judge to make an order for thesale of certain blocks only, and that the entire mortgaged property shouldbe sold.
We have considered the matter, and in view of the fact that the saleof a part of the land mayr realize the amount necessary to satisfy themortgage debt, we hold that it is open to tho Court to direct that the saleof the land should be in blocks, and that only such blocks be sold aswould suffice to realize the amount due under the decree. It appearsto us preferable that the back blocks be sold first.
Aecordingly, we order that the decree be amended by the addition ofthe following paragraph immediate^ after paragraph 3 :—
“ It is further ordered and decreed that the mortgaged property besold in blocks according to Plan No. 1602 of 26th September 1969made by K. 3V[. Samerasinghe, Licensed Surveyor, and approved bythe Municipal Council, Colombo.
The sale to be in the first ijistanee of lots 1, 2, and 3 each with a rightof way over lot 4 ; and lot 8. And if the sale of these blocks does notfetch the amount necessary to satisfy the amount due under the decree,the sale of the other lots will be in such order as may be directed byCourt and subject to such other directions as the Court may give. ”
Learned Counsel for the 2nd defendant-petitioner has produced PlanNo. 1602 (XI) ; letter of approval of the Municipal Council, Colombo,dated 28.9.1969 (X2) ; and the letter of approval of the street lines alonglot 4 (X3). These documents will be filed of record.
The plaintiff-respondent will be entitled to the costs of thisapplication, payable by the 2nd defendant-petitioner and the 1stdefendant-respondent.'
Wijayatilake, J.—I agree.
Application tnainly dismissed.
P. C. S. FERNANDO, Appellant, and W. V. MAHANTILA (Government Agent, Colombo Dis