086-NLR-NLR-V-34-ABRAHAM-SINGHO-v.-HARMANIS-APPU.pdf
328
AKBAR J.—Abraham Singho v. Harmanis Appu.
1932Present: Dalton and Akbar JJ.
ABRAHAM SINGHO v. HARMANIS APPU.
149—D. C. Kegalla, 8,575.
Action under section .247 ‘of Civil Procedure Code—Property seized underhypothecary decree—Mortgagee’s address not registered—Claim bytransferee dismissed—Action by claimant—Claim in reconvention bymortgagee for hypothecary decree.
A mortgaged property with the defendant. The bond was regis-tered but the mortgagee’s address was not registered. Thereafter, Aconveyed the property to his own sons who transferred it to the plaintiff.Defendant obtained a mortgage decree against the legal representativeof A but the plaintiff was not a party to the action. When theproperty was seized in execution of defendant’s decree plaintiff preferreda claim which was dismissed. .
Held, (in a 247 action brought by the plaintiff) that it was not com-petent for the defendant to claim, in reconvention, a hypothecarydecree against the plaintiff.
^JPPEAL from a judgment of the District Judge of Kegalla.
Navaratnam, for plaintiff-appellant.
JV. E. Weerasooria, for first defendant-respondent.
April 25, 1932. Akbar J.—
This was an action under section 247 of the Civil Procedure Code tohave it declared that certain lands were free from seizure. The subjectmatter of this action belonged originally to one Sinnappu who by bond
329
AKBAR J.—Abraham Singho v. Harmanis Appu.
of April 8, 1904, gave a usufructuary mortgage of it to his son-in-law,the first defendant in this case. Although this bond was registered theaddress of the mortgagee was not registered. Sinnappu conveyed hisinterest by P 1 dated 1909, to his two sons who later sold their interestby deed of 1926 (P 2) to the present plaintiff. The first defendant inthis case filed an action in the Court of Requests, Kegalla, in 1927 andobtained judgment on August 4, 1927, but neither the vendees on P 2 northe present plaintiff were made parties to the action, the defendant beingone Punchi Naide, a legal representative of Sinnappu. Neither thedecree in this mortgage action nor the action itself, was registered. Theproperty mortgaged was seized for a sum of Rs. 220 and there was a cla/xnby the plaintiff which claim was dismissed; hence this action undersection 247. In the answer to this action, the first defendant claim./ d inreconvention to have it declared that the property was liable to be soldfor the debt and Punchi Naide has been added as the second defendant.
Three issues were framed which are as follows: —
Is the plaintiff entitled to the land in dispute free from any
encumbrances created on behalf of the first defendant?
Can the first defendant claim to have this action treated as a
hypothecary action by way of reconvention under the provisions
of Ordinance No. 21 of 1927?
Is the first defendant entitled to recover the amount on the bond
as Impensae Utiles?
It was agreed at the trial that the debt due up to date was Rs. 220.The learned District Judge answered the first issue in 'the negative andthe second issue in the affirmative, and on the third issue,, which he alsoanswered in the affirmative, he fixed the amount due at Rs. 110. In theresult the plaintiff’s action was dismissed with costs, and the propertywas declared liable to be sold under the writ already issued.
Under section 241 of the Civil Procedure Code when any claim ispreferred the Court has to decide whether it will release the propertywholly or partly from seizure or disallow the claim. Under section 246if the Court is satisfied that the property is subject to a mortgage infavour of any person, it can continue the seizure subject to such mortgageand under section 247 any party against whom an order has been made mayinstitute an action within fourteen days for the right which he claims inrespect of the property in dispute or to have the property declared liable tobe sold in execution of the decree. In this case it will be noticed that thetitle had passed to the plaintiff before the action in the Court of Requests,and not being a party to that case, the plaintiff was not bound by thedecree in that case. For some reason or other the claim was dismissed,but it should be noted that the first defendant did not ask for an orderunder section 246 of the Civil Procedure Code, namely, that the propertyshould be declared subject to a mortgage in his favour. In an actionunder section 247 the only issue that can be decided in such an action iswhether the claimant is the owner of the property in dispute if he is theplaintiff or whether the property is to be declared liable to be sold inexecution of the decree in his favour if the plaintiff is the judgment-creditor. I do not think it was competent for the first defendant in this
330
JAYEWARDENE A.J.—Iyer v. Hendrick Appu.
case to claim in reconvention for a decree to have the property liable tobe sold in execution of his decree as against the plaintiff in this case whowas not a party to the Court of Requests case. There are authorities tothis effect, namely, the case of Vedarale v. Andris Appu and Slema Lebbev. Banda*. In the latter case it was held that a hypothecary action didnot lie against a mortgagor who had parted with all his interest in themortgaged property previous to the action on the mortgage, and thatonly a personal action lay against him for the money due. It was furtherheld in that case (in which a 247 action was brought by the judgment-creditor) that an action under section 247 could not be brought by themortgagee.
I do not think the law has been changed by Ordinance No. 21 of 1927.Section 11 does not affect title acquired before the commencement ofthat Ordinance (as in this case); nor do I think section 16 applies to a247 action under the Civil Procedure Code. For these reasons I thinkthe judgment , is wrong and I would set aside the judgment and decree of
the District Court and allow the appeal with costs.
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Dalton J.—I agree.
Set aside.