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UDUMA LEBBE v. SEYADIN MARIKKAR.D. C., Puttalam, 1,333
Prescription—Mortgage bond by three debtors—Payment in part by two debtors—Right of action against third, debtor.
In (he case of a joint and several mortgage bond, payments made by twoout of three of the mortgages prevent prescription from running in favour ofany of them.
CTION instituted on 6th May, 1899, upon a mortgage bonddated 18th~Ootober, 1883. It was granted by three persons,
Muttu Meera Nachia. Assen Meera Lebbe, and Seeni Ummu.All three having died, in 1891, 1897, andi 1886, respectively, theirlegal representatives were sued. The plaintiff alleged that in 1889the first debtor paid Rs. 275, and the second debtor Rs. 250,on account of the debt due. It appeared that the third debtor,who had died in 1886, was the wife of the second debtor, and madeno payment on account of the bond. The first and secondl defend-ants, who represented the first and second debtors, being absent,decree nisi was entered against them, and it was subsequentlymade absolute.
The third defendant, who represented the third debtor, appearedand urged that, as nothing had been recovered from the thirddebtor since 1883 by the plaintiff, the action against him wasprescribed. The plaintiff contended that, as the lands given assecurity by each" of the debtors was for the due payment of ajoint and several debt, the lands of the third debtor included, inthe mortgage bond were liable to be sold, like the lands of the othertwo- debtors, and he moved1 to be allowed to lead evidence thatthe payment made by the second debtor was on behalf of thethird debtor.
The District Judge over-ruled these contentions and dismissedthe action as against the third defendant.
Sampayo, for appellant.—The bond sued upon is joint andseveral. The translation of the Tamil deed shows this to be so.
H. Jayawwrdene.—That translation is not correct. Counsel inthe Court below cited Rdmanaihdn, 1876,'p. 320, in order to showthat in the case of an obligation in solidum, payment by onedebtor bars prescription in favour of the other debtors. Theauthority would not have been cited except for the contention thatthe translation before the Court was not correct. [Bonseb, C.J.—The translation was not formally objected to in the Court below.We are bound by it.]
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1902. Sttmpayo .-r-Mv. Justice Clarence withdrew the opinion beJanuary 28. expressed in the case reported in RamanAthan, 1876. p. 320.
' That was in Julia v. Mathea (7 8. C; G. 183). __A.ssuming that thedebt is prescribed, the land mortgaged by the third debtor is stillsubject to the mortgage (.7 S. C. C. 183).
Jayawardene.—That case does not apply to the present case.Here the three debtors mortgaged separately. The prescriptionpleaded by tbe third debtor is a bar to plaintiff’s action against her.
28th January, 1002. Bonsbr, C.J.—
In this case three persons were sued in an action by the mortrgagee to realize his security. The three defendants representedthe three original mortgagors, and the present appellant was theonly one of the defendants to appear at the trial. The DistrictJudge held that the action was prescribed as against the appellant,although payments had been made by the other mortgagors. In-asmuch as the mortgage bond was a solid obligation, it was clearthat, according to the Roman-Dutch Law, the payment by one ofthe mortgagors prevented prescription running in favour of anyof them, andi those payments have at all events kept the debt aliveas against the hypothecated land. Therefore the District Judgewas wrong in holding that the action could not be maintainedagainst the appellant. It was suggested in the course of the argu-ment that the bond was not a joint and several bond, but wasmerely a bond to which one of the parties was only liable for hisaliquot share. But the translation which was filed in tire caseclearly shows that it was a joint and several bond). No objectionwas taken to the correctness of that translation in the Court below,although the proctors on both sides were Tamils, familiar with thelanguage in which the mortgage was expressed, and it seems to usthat we. cannot, on the mere suggestion, by counsel at this stageof the proceedings, entertain any such objection. We thereforethink that the appeal must be allowed with costs.
Wendt, J., agreed.
H. C. COTTLE, ACTING GOVERNMENT ERINTSR, COLOMBO, CEYLON.
UDUMA LEBBE v. SEYADIN MARIKKAR