Zeinudeen v. Samsadeen.
1939Present: Soertsz A.C.J. and de Kretser J.
ZEINUDEEN v. SAMSADEEN et al.
123—D. C. Ratnapura, 6,138.
Mortgage action—Sale of property by Fiscal—Resistance to delivery ofpossession—Donation of property subsequent to mortgage—Failure ofdonee to register address—Power of Court to direct delivery of posses-sion—Ordinance No. 21 of 1927, s. 12 (1).
The petitioner sued on a mortgage bond dated July 28, 1931, and inexecution of the decree the mortgaged property was sold by the Fiscaland purchased by the petitioner.
In execution of an order for delivery of possession issued by the Courtin favour of the petitioner, the Fiscal was resisted by the respondentwho claimed the property on a deed of gift from the defendant in theaction, dated May 3, 1933.
The respondent had registered the deed of gift but had failed to registerthe address.
Held, that the Court had power to give directions under section 12 (1)of the Mortgage Ordinance for delivery of possession and for removalof the respondent as the latter was bound by the decree by virtue ofsection 6 (3) of the Ordinance.
^^PPEAL from an order of the District Judge of Ratnapura.
E. Weerasooria, K.C. (with him D. D. Athulathmudali and A. E. R.
Corea), for the third respondent, appellant.
Colvin R. de Silva, for the petitioner, respondent.
53. N. B 17027(5/52)
SOERTSZ A.C.J.—• Zeinudeen v. Samsadeen.
June 19, 1939. Soertsz A.C.J.—
This case has run a very erratic course in the Court below. Theplaintiff sued on a mortgage bond dated July 28, 1931. Decree wasentered on October 8, 1935, directing the payment of the principal andinterest due on the bond, subject to the condition that if a sum of Rs. 100was paid on or before December 11, 1935, an application for further timeto pay the balance would be considered, but that if the defendants madedefault, order for sale of the mortgaged property would issue, withoutnotice to them. The defendants made default, and the Fiscal on anorder made on April 20, 1936, sold the mortgaged property on August 1,1936, and the plaintiff who had been authorized by the decree to bidfor and purchase the property in reduction of his claim, became thepurchaser. Before the sale took place, to be precise on March 24, 1936,the present appellant 'had submitted a petition stating that she held a■ deed of gift of May 3, 1933, from her husband the first defendant, for thisland and protesting against the proposed sale. That was an unstampedpetition and no notice appears to have been taken of it. Again onAugust 29, 1936, that is to say nearly a month after the sale, theappellant wrote to the District Judge notifying her claim, but she wasinformed that her petition should be stamped and that an applicationto set aside the sale should be made by way of summary procedure.She took no steps, and on September 9, 1936, the sale to the plaintiffwas confirmed and Fiscal’s transfer No. 2,967 of November 12, 1936,was issued to him. On December 1, 1936, the plaintiff’s Proctor filedpetition and affidavit and moved that an order for delivery of possessionbe issued to the Fiscal to the end that he might be placed in quiet andvacant possession of the house described in the petition and affidavit.This was allowed. On December 7, 1936, the Fiscal reported that thepresent appellant claimed the land and premises on the deed of giftdated May 3, 1933, and that she refused to give up possession andprevented the Fiscal’s officer from delivering possession. The Fiscal’sreturn on page 119 of the record shows that this resistance occurred onDecember 5, 1936. On January 6, 1937, the plaintiff’s Proctor filedpetition and affidavit complaining of this resistence and praying for anotice on this appellant to shew cause why she should not be dealt withaccording to law. The Secretary of the Court wrote a memorandumon the motion paper filed with the petition and affidavit laying downthe law in peremptory terms with the result that plaintiff’s Proctorwas called upon to see the Judge in Chambers. (See pages 76 and 77of the record). What transpired in Chambers does not appear, but onpage 78 of the record appears another motion by the plaintiff’s Proctorasking for a notice on the appellant to show cause why she should not beejected from the house “ as the deed of gift in her favour executed by thefirst defendant is subject to the debt due on the bond ”. Notice issuedaccordingly. It was served and on March 15, 1937, her Proctor appearedand stated that she was not a party to the case and that she was notaffected by the decree and could not be ejected. The Court fixed a datefor inquiry into the matter of the application and objection, and eventuallyon April 30, 1937, made order that the application was out of time in thatit was not made within a month of the resistance as required by section
SOERTSZ A.C.J.—Zeinudeen v. Samsadeen.
325 of the Civil Procedure Code and that the appellant “ was not boundby the decree not having been made a party to the mortgage action”.The application was refused.
On May 13, 1937, another Proctor filed plaintiff’s proxy and movedfor a writ of delivery of possession. He stated that all necessary partieshad been joined in the action and that the party who resisted the Fiscalwas a party bound by the decree under section 6, sub-section (3), of theMortgage Ordinance of 1927. This motion was allowed.
On July 2, 1937, the journal entry shows that the Fiscal reportedonce more that the appellant on June 30, 1937, refused to vacate thehouse or to allow anyone to enter into it. On July 28, within a monthof this resistence, plaintiff’s Proctor filed petition and affidavit and askedthat a day be appointed for the determination of the matter of thepetition. That was allowed and the matter came up for considerationon June 29, 1938.
The appellant’s Proctor contended that the plaintiff is concludedby the order of April 30, 1937, and that the matter of the resistancecould not be re-agitated on the issue of a fresh writ ; that the appellantwas not bound by the mortgage decree ; and that section 325 did notapply except in the case of proprietary decrees.
For the plaintiff it was urged that the present application was inrespect of resistance to a writ of May 13, 1937, and that, therefore,the dismissal of the earlier application did not bar the plaintiff '• that theappellant not having registered her address was bound by the mortgagedecree ; and that sections 325 and 326 applied to an order under section287 of the Civil Procedure Code.
The learned Judge by his order of July 27, 1938, allowed the plaintiff’sapplication and directed that “ The Fiscal will proceed to put thepurchaser in possession of the property purchased, and if need be, removethe respondents therefrom, should they refuse to vacate the same ”.
The appeal is from that order. As I have already observed, the learnedDistrict Judge and the Proctors appearing for the parties, treated theapplications for delivery of possession, as made under the Civil ProcedureCode. On the facts in this case, I do not think sections 325 and 326of the Code apply. Section 325 enacts that “ if in the execution of adecree for the possession of property under heads B and C (that is ofsection 217 of the Civil Procedure Code) the officer charged with theexecution of the writ is resisted” &c. In this case, the decree entereddid not order the delivery of possession or the removal of a party boundby the decree as it might have done. The Fiscal proceeded to deliverpossession on orders made by the Court subsequently to the decree.These orders were regarded as orders made under section 287 of the Code.In the case of de Silva v. de Silva ’, a Full Bench held that sections 325and 326 applied only to cases of resistance to a decree for delivery ofpossession and not to an order made under section 287. That rulingwas doubted in the case of Silva v. de Mel *, but the Divisional Benchthat considered this latter case sought to escape from the Full Bench rulingby holding that it applied only to sections '325 and 326, and not to1 3 N. L. R. 161.1 IS N. L. R. 164.
Jayasekere v. Jayasekere.
section 328 with which they were concerned. But that emergency exitis not open to us for we are occupied with a case dealing with sections 325and 326 and we are bound by the Full Bench decision, that is if this orderis one under section 287. It is obvious, however, that section 287 doesnot apply. It provides for three specific cases: — (a) where the propertysold is in the occupancy of the judgment-debtor, (b) where it is in theoccupancy of someone on his behalf, (c) where it is in the occupancy of aperson claiming under a title created by the judgment-debtor subse-quently to the decree. The appellant is not the judgment-debtor. Sheis not in occupancy on behalf of the judgment-debtor, but she is settingup a right in herself, (a) and (b) do not, therefore, apply. Nor does (c)because there was no seizure at all, the Fiscal having acted under section12 (3) (a) of the Mortgage Ordinance. What then is the result? Is thepurchaser’s only remedy a regular action against the appellant fordeclaration of title and ejectment ? I do not think so. It would beunfortunate if a purchaser were put to the expense and delay of a regularaction to obtain possession from a party bound by the decree enteredin his favour. The appellant is bound by the decree. The mortgagebond was registered, and although the appellant had registered her deed,it is admitted that she failed to register her address. She was not,therefore, a necessary party and the decree binds her. In my opinionthe order made by the District Judge is an order that he could have madeunder section 12 (1) of the Mortgage Ordinance. Although section 12 (2)provides that in the case of a sale carried out by the Fiscal, it shall becarried out in like manner as if there had been a seizure under a writ ofexecution for the amount of the mortgage amount, and that sections 255to 289 and 290 to 297 of the Civil Procedure Code shall be applicable,the District Judge has authority under section 12 (1) to give directionsfor delivery of possession and for the removal of persons bound by thedecree, when such directions become necessary. In this case suchdirections were necessary because section 287 of the Code did not apply.
I would therefore, treat the order made by the District Judge as onemade under section 12 (1) of the Mortgage Ordinance and I would upholdit. In my view, this is essentially a case to which the concluding part ofsection 36 of the “ Courts and their Powers ” Ordinance applies.
I think this is a case in which the parti.es should bear their costs in bothCourts.
de Kretser J.—I agree.
ZEINUDEEN v. SAMSADEEN et al