HEARNE J.—The Fiscal (C.P.) v. Nalliappa Chettiar.
1939Present: Hearne and de Kretser JJ.
THE FISCAL (C.P.) v. NALLIAPPA CHETTIAR.173—D. C. (Inty.) Kandy, 43,957.
Fiscal's jees and poundage—Sale oj mortgaged property—Mortgagee givenpermission to purchase—Subject to condition of full satisfaction of hisclaim—Levy of jees and poundage.
Where a mortgagee was given permission to bid for and purchase themortgaged property subject to the condition that “ in the event of hisbecoming the purchaser thereof which shall be for not less than hisclaim and interest or in full satisfaction of his claim and interest heshall be given credit to the extent of his claim and costs ”,—
Held, that the value of the property sold for the purpose of levyingfees and poundage should be the amount of the claim and interest.
Held, further, that the plaintiff’s remedy was by way of separate actionand not by application under section 344 of the Civil Procedure Code.
A PPEAL from an order of the District Judge of Kandy.
F. N. Gratiaen, for the plaintiff (Fiscal, Central Province).
N. Nadarajah, for the plaintiff, respondent.
S. J. C. Schokman. C.C., on behalf of the Attorney-General as cimicnscuriae.
November 23, 1939. Hearne J.—
The mortgagee (judgment-creditor) had been given permission to bidfor and purchase the mortgaged property subject to the condition that” in the event of his becoming the purchaser thereof which shall be fornot less than his claim and interest or in full satisfaction of his claim andinterest he shall be given credit to the extent of his claim and costs
Medhankara Istaweera v. Suppramaniam Chettiar.
The highest bid at the auction sale was that of the mortgagee, viz.,Rs. 49,500. The amount due to him in the suit was Rs. 99,827. Thepoint in the appeal is whether the value of the property sold, for thepurpose of levying fees and poundage, is Rs. 49,500 or Rs. 99,827.
The value of a property is the price which a purchaser pays for it whensold. What was the price paid by the mortgagee ? It shall not, accord-ing to the condition imposed, be less than Rs. 99,827 or it shall be for asum which satisfies the full claim and interest of the mortgagee. In otherwords it may be more than Rs. 99,827 if it was necessary for him to bidso high, or if it was not necessary to go up to Rs. 99,827, it must be thatsum. Less it cannot be. The wording of the condition is unhappy butthis is the sense I make of it.
In my opinion fees and poundage should be levied on Rs. 99,827.
I also think the plaintiff-respondent’s remedy, if any, was not by motionin the lower Court but by separate action.
I would allow the appeal with costs.
de Kretser J.—
I agree that the appeal should be allowed with costs. I prefer torest my decision on the second ground taken by my brother. In myopinion section 344 of the Civil Procedure has no application to thecircumstances disclosed in this case. This does not mean that I disagreeon the first point.
THE FISCAL (C. P.) v. NALLIAPPA CHETTIAR