( 438 ;
Present: De Sampayo A.J.
PERERA v. PESONAHAMI et al.
172—C. R. Oampola, 303.
Bcs judicata—.Civil Procedure Code, as. 207 and SI 7—Action by mort-gagor for cancellation of mortgage bond—Is a subsequent action onthe mortgage bond barred?—Was the mortgagee bound to claim inreconvention in the first action?
The defendant in an action is not bound .to make a claim inreconvention on a distinct and separate cause of action.
In an action by the mortgagor to have the bond cancelled anddischarged on the ground of payment, the mortgagee succeededon the issue of payment, and the action was dismissed. Themortgagee brought a subsequent action on the bond.
Held, that the subsequent action was not barred by the firstaction.
rp HE facts are set out in the judgment.
De Zoysa (with him A. St. V. Jayewardcne), for the defendants,appellants.—The plaintiff should have claimed in reconvention the .amount due on the bond when the mortgagor sued him for thecancellation of the mortgage bond. See sections 817 and 207 ofthe Civil Procedure Code. The action for cancellation of the bondby the mortgagor was an action for breach of contract within themeaning of section 817; if the money had been paid as alleged bythe mortgagor, it was the mortgagee’s duty to have cancelledthe bond.
( 439 )
Hay ley, for the plaintiff, respondent.—The first action was not anaction for breach of contract. Counsel referred to Deutsche NationalBank v. Paul.1
July 4, 1912. De Sampayo A.J.—
The plaintiff brings this action against the defendants on amortgage bond. The principal question is whether the defendants’plea of res judicata is well founded. It appears that in a previousaction the defendants as mortgagors sought to have the mortgagebond cancelled and discharged on the ground that the money dueon the bond had been paid. The defendant—the plaintiff in thisaction—took issue on the allegation of payment, and succeeded insatisfying the Court that the money had not been paid, with theresult that the action was dismissed. It is contended that theplaintiff should, in the previous action, have claimed in reconventionthe money due on the bond, and reference is made to sections 207and 817 of the Civil Procedure Code. I do not think that either ofthose sections applies to this matter, and no decision has been citedto me in support of the contention. The defendant in an action isnot bound to make a claim in reconvention on a distinct and separatecause of action. Section 207 only applies to the case of a plaintiffwho neglects to set up all the claims he may be entitled to on thesame cause of action, and I think that the plaintiff in this actionis not precluded by that section from realizing his mortgage. Asregards section 817 of the Procedure Code, it seems to me that theprevious action could hardly be regarded as an action for a breachof contract within the meaning of that section. Some guidance onthis point may be obtained from the case of Deutsche NationalBank v. Paul,1 which was cited to me by Mr. Hayley, for therespondent. That was a case under order XI., rule 1 (e), of theEnglish rules and orders, by which provision is made for serviceout of the jurisdiction in actions “ founded on any breach ofcontract,” and it was held that an action by a mortgagee for fore-closure of the mortgage and for all necessary accounts and inquirieswas not an action ” founded on a breach, of contract ” within themeaning of the rule.
I therefore think that the judgment of the learned Commissionerdeciding against the defendants on the issue of res judicata is right-.The appeal is dismissed with costs.
1 (1898) 1 ch. 983.