097-NLR-NLR-V-51-AHAMADO-MUHEYADIN-Appellant-and-THAMBIAPPAH-Respondent.pdf
392
NAGALINGAM J.—Ahamaio Muheyadin v. Thambiappuh
1948Present: Nagalingam J. and Basnayake J.AHAMADO MUHEYADIN, Appellant, and THAMBIAPPAH,Respondent
A. C. 177—D. C. Batticaioa, 029
Mortgage Ordinance {Cap. 74)—Sections H and 16 (!)—Rigid of mortgagee to bringtutQ separate actions in respect of same remedy—Joint and several mortgagors—Extent of liability of each.
Under section 10 (l) of tho Mortgage Ordinance (Cap. 74) soveral actionsin respect of the same remody are mad:; available to a mortgagee, the onlylimitation on that right being what can be gathered inferentially from thoterms of section 11. Where, therefore, a mortgagee obtains a hypothocarydecree in respect of two properties and has one of the properties sold but,before proceeding to sell the other, discovers that that other property haspassed into tho hands of a third party who has not boen made a party to theaction, there is nothing in the Ordinance which bars the right of such amortgagee from bringing a second hypothecary actiot} against tho mortgagorand the third party to obtain an effectual hypothocary deeroe binding thatother property.
Where two or more mortgagors have bound themselves jointly and sevomllyand the mortgagee obtains judgment against one of them, ho is not precludedfrom suing the other or others until he gets satisfaction. Kven executionagainst one is no bar against suing the others ; for execution without satisfac-tion is not any bar.
jA.PPEAL from a judgment of the District Court, Batticaioa.
H. V. Perera, K.C., with him E. B. W ikramanayake, K.C., and
<7. Thomas, for defendant appellant.
JF. A. Hayle.y, K.C.. with C. Renganalhan, for plaintiff respondent.
Cur. adv. wit.
October 1, 1948, Nagalingam J.—
This appeal involves the determination of the scope and extent of thopowers conferred on a mortgagee under the Mortgage Ordinance, Cap. 74.
By bond P 1 of 19*10, one Ismail Lcbbo Marikkar and his wife, Asiatb*ummah, mortgaged and hypothecated with the plaintiff two allotmentsof land to eecuro repayment of a sum of Rs. 3,000 and interest thereon,Ismail Lebbe Marikkar died in 1938, The plaintiff instituted actionNo. 224-M of the District Court of Batticaioa against the widow and thechildren for the recovery of the amount due nnder the bond and for ahypothecary decree in respect, of the properties mortgaged, in thisaction the first defendant is described as “ Asiathumma, widow ofS. M. Ismai! Lebbe Marikkar for herself and as guardian-ad-litem. overthe minor the 7th defendant”, and the names of five other childrenare thereafter entered in the caption and they are all doscribed as “ re-presentatives to represent the estate of the deceased S. M. Ismail LebbeMarikkar”. It will be noticed that Asiathumma, the widow, is notspecifically sued in her personal capacity, but it is contended that thedescription “ for herself and as guardian-ad-litem over the minor the7th defendant ” was intended to make her personally liablo. Mr. Hayleyappearing for the defendant contended that the words " for herself ”
NAGALINGAM J.—Ahamado Muheyadin v. ThumLia^pah
393
mean nothing more than that she was being sued as a representative of thedeceased. If there was nothing more in the plaint, I think this contentionwould be entitled to succeed. But the plaint sets out the fact that the1st defendant herself executed the mortgage and that she herselfborrowed and received the money, and the property against whichhypothecary decree was to be entered was not morely the property ofIsmail Lebbe Marikkar but also of the 1st defendant herself. In viewof these additional facts disclosed in the plaint, Mr. Perera’s contentionis entitled to succeed, and I would hold that the action was against boththo widow in her personal capacity and against her and her children asrepresenting the estate of the deceased, Ismail Lebbe Marikkar.
Decree was duly entered in the action and the properties hypothecatedwere sold and purchased by the plaintiff himself ; the full amount of thedebt was not realised by the sale of the mortgaged properties, and theplaintiff issued writ and had certain other properties sold, which werepurchased by one Ahamadu Cassim Kariapper. While these proceedingswere afoot, administration proceedings in respect of the estate of IsmailLebbe Marikkar wore commenced and letters of administration with thewill annexed were issued to one Ahamado Muheyadin. The administratorthereafter instituted action No. 153-L of D. C., Batticaloa, against theplaintiff claiming a declaration that the properties sold under the mortgagedecree save as to a one-fourth share of the first of the two allotments ofland hypothecated that belonged to the widow formed part of the estate ofthe deceased notwithstanding the sale, that the plaintiff be ejected fromthe properties and he be placed in possession thereof. This Court, byits judgment (See Ahamado Mukeyadin v. Thambiappah x) held that inas-much as the estate of the deceased was more than Rs. 2,500 in value,the District Court had no jurisdiction to appoint legal representatives torepresent the estate of the deceased mortgagor and that all the proceedingshad in the mortgage action No. 224-M of D. C., Batticaloa, were bad,.-tad declared the administrator entitled to the properties as claimedby him. In view of this judgment, the sale at which Ahamedu CassimKariapper became purchaser of unhypothecated properties was also setaside by the District Court.. The plaintiff thereupon instituted thepresent action, making only the administrator of the estate defendant.Asiathumma, the co-mortgagor, was not made a party. The action,however, is for the recovery of the full principal sum of Rs. 3,000 andthe recoverable interest thereon amounting to another Rs. 3,000 aggre-gating to Rs. 6,000 and the properties over which hypothecary decreewas claimed wore the entirety of the land hypothecated, no exclusionbeing made in respect of any share of the co-mortgagor, Asiathumma.The defendant did not contend that any part of the sum of Rs. 6,000claimed by the plaintiff had been paid off, but took two pleas by wayof defence. One was the question of prescription and the other wasthat “ the plaintiff having instituted action No. 224 and obtained a decreetherein is debarred from maintaining this action ”. Tho learned DistrictJ udge held against the defendant on both these points.
On appeal, the plea of prescription was not pressed. It was, however,contended that the present action was not available to the plaintiff in view1 (1945) 46 N. L. R. 376.
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r.«. A 98321 <6/6ft>
3l)4
N AG ALIN(JAM J.-—Ahatnado Muheyadirt v. Thambiappah
of tho proceedings had in the earlier mortgage action No. 224-M. it hasbeen argued that had theplaintiff not proceeded to sale of the hypothecatedproperties but stopped .short at obtaining the decree in the previousmortgage action, in view of the decision of this Court in Kadappa CheUiar v.ltatnanayake et al.l, the plaintiff would be entitled to maintain this secondaction on the mortgage bond and claim a hypothecary decree against theadministrator as the proper party to be sued, inasmuch as there had beenno adequate representation to bind the estate of the deceased mortgagor inan earlier action. But it has been urged that the sale held of the most,gaged properties in the previous mortgage action alters the legal position.It is said that by the sale of the hypothecated property in the earlieraction the right of the plaintiff to obtain a hypothecary decree has beenexhausted, as by the judicial sale under the earlier mortgage decree, allreal rights which the plaintiff may have had against the property havebeen put an end to.
At this point it may be useful to ascertain the faots before proceeding toa consideration of tho question of law. In regard to the earlier mortgageaction, where the heirs of the deceased mortgagor were sued as legal re-presentatives, Cannon J. expressed himself thus in the case institutedby the administrator against- the plaintiff (Ahamado Muheyadin v.Thambiappah (supra) ):
“ The point of jurisdiction ” (the plea taken, it will be remembered,was that the Court had no jurisdiction to appoint legal representativeswithout proof being adduced before it that the estate of the deceaseddid not exceed in value a sum of Rs. 2,500) “ is important because if theCourt had no jurisdiction its order was void ab initio and the consequentsale and other proceedings a nullity as against the deceased’s estate. ”
The Court held that the salo was void and did not divest the adm inistratorof his title. The resultant effect, therefore, is that it cannot bo said thatin the earlier mortgage action the rights of the plaintiff as against thedeceased mortgagor’s properties at least are concerned have been carriedheyond the stage of obtaining a decree, and there is no room for argumentthat a sale of the mortgaged properties has taken place. The case, there-fore, comes within the principle laid down in the caBe of Kadappa CheUiarv. Ramanayake et al. (supra).
A further point was taken that inasmuch as part of the hypothecatedproperty, namoly, the one-fourth share belongingto the surviving mortgagorwas sold in the earlier mortgage action, and as no judicial pronouncementwas made in regard to that sale in the judgment of this Court in actionNo. 153-L, the sale was good, and that the hypothecary decree entered inthe case had been carried to a stage beyond the decree. In the first place,I do not think that this Court treated the salo of the ono-fourth sharebelonging to the surviving mortgagor as continuing to subsist, for Cannon
J.who delivered the judgment of the Court makes it clear in the finalparagraph of his judgment, when he says :
“The judgment in the action and tho subsequent order for saleremains binding on A. M. Asiathumma who was herself a mortgagorsince she was made party to tho proceedings. ”
» (1936) 88 AL L. R. 33.
NAOALINOAM J.—Ahamalo Mvhtyadin o. Thambiappah
99«"»
It will be noticed that the learned Judge studiedly refrains from makingany reference to the sale itself as distinct from the order for sale, for it isobvious that when the sale against the estate of the deceased mortgagorwas declared a nullity, the sale of the surviving mortgagor’s interests can-not bo said to remain unaffected thereby. The sale was not of the interestoi the deceased mortgagor and of the surviving mortgagor as two separateentities, but it was a sale of the entire land in respect of the joint interestsof the deceased and surviving mortgagors. When the sale of the deceasedmortgagor’s intcrosts was held to be a nullity, that pronouncement- in-evitably resulted in rendering void the sale of the surviving mortgagor’sinterests as well, so that, in truth it cannot bo said that oven in regard tothe surviving mortgagor’s interests there has been a sale. Though whatview the defendant took is immaterial, it is a point worthy of note that thedefendant himself did not assert that any part of the debt had been liqui-dated by the plaintiff purchasing the interests of the surviving mortgagor.Mr. Hayley referred to a journal entry under date March 5, 1946, in theproceedings of case No. 224-M, which records the setting aside of a saleby consent of parties, but that has reference to the purchase made byAhamadu Cassim Marikkar and does not affect this question. Theposition, therefore, is that the sale of the one-fourth share was void byreason of the judgment of this Court in action No. 1,153-L.
But even assuming the contrary, namely, that the sale in respect of thesurviving mortgagor’s interests was valid and that tho conveyance infavour of the plaintiff was good to that extent, I do not think that theposition in law is different. Section 16 of the Mortgage Ordinance, if readstrictly and literally, would lead to a conclusion which I do not think wasanticipated by the framers of the Ordinance. Sub-section 1 of the sectionis in two parts. Firstly it says that a claim to all or any of the remedies ofa mortgagee to enforce payment of the mortgage money raav be joined toa olaim in a hypothecary action. This merely gives recognition and legalsanction to the practice in existence even then of a mortgagee joining allhis remedies in one action. The second part of the sub-section is whatcreates or was intended to create a change in the law. It permits theinstitution of a separate action in respect of each remedy.
To appreciate the precise effect of this enactment, it will be necessaryfirst to ascertain what are the remedies to which a mortgagee is entitled.Taking the simplest form of a mortgage action, where a single ?nortgageesues a single mortgagor to recover the debt and obtain an order for thesale of the hypothecated property consisting of a single property mort-gaged, the mortgagee would be entitled to two remedies, (1) a moneyremedy, and (2) a hypothecary remedy. This part of the section, there-fore, merely enacts that an action may be instituted claiming only a moneyremedy or claiming only a hypothecary remedy, ortwo actions may be in-stituted, one in respect of each remedy. But the language doc3 not speci-fically enact that more than one action may bo brought in respect ofthe same remedy, in other words, that two separate actions can be insti-tuted in respect of either thchypothccary remedy or themoney remedy. Aliteral interpretation, therefore, cannot be supported. For, if that is allthat the Legislature intended to enact, the very objective the Legislaturehad in mind in repeating the provisions of the Civil Procedure Code and
39C
BASNAYAKE J.—Ahamado Muheyadin v. Thambiappah
enacting the Ordinance would have been futile, for it is well known, thatthe Legislature intended to give relief to a mortgagee who had obtained anineffectual mortgage decree by reason, to use the words of the Ordinance,of necessary parties not having been inado parties defendant to themortgage action.
A more liberal interpretation has been placed on this section and it hasbeen held that a second actio*1 would bo available to a mv» tg-goo "-aspectof the wmo remedy. In the case SavarimvUu v. Annnmmak 1 Soertsz .1.in reference to section 16 (1) observed:
" That section ” (section 16 (1) of the Mortgage Ordinance, althoughthe reported judgment erroneously describes it as section 16 (1) of theRegistration Ordinance) “ makes it possible for more than one actionto be brought in respect of the same reinody notwithstanding section 34of the Civil Procedure Code . . . . ”
see also Kadappa Chettiar v. Ramanayake {supra). This construction maybe justified by reference to the Interpretation Ordinance, which enablesthe singular in an enactment to be construed as including the plural.
If therefore, several actions in respect of the same are made available toa mortgagee by the Ordinance, the only limitation on thatrightthat maybe said to be imposed is what can be gathered inferentially from the termsof section 11 of the Ordinance. This section provides that where underan in-effectual mortgage decree the hypothecated property is sold and purchasedthe purchaser would be entitled to what the section declares a hypothecarycharge on the purchased land. Therefore, it will be correct to say that,so long as a sale of the mortgaged property, though ineffective to conveytitle but completed by a conveyance, stands, the mortgagee would have noright to bring a separate hypothecary action claiming a second judicialsale of the land, for the property has by then ceased to exist as mortgagedproperty and has passed into property that becomes subject to a hypothe-cary charge in favour of the purchaser and free ofthcrightsof the mortgageethereon. In no other case does this limitation operate; so that, for ins-tance, in a case where the mortgageeobtainsahypothecarvdecree in respectof two properties and has one of the properties sold bnt before proceedingto sell the other discovers that that other property has passed into thehands of a third party who has not been made a party to tbe action, thereis nothing in the Ordinance which bars the right of such a mortgagee frombringing a second hypothecary action against the mortgagor and thethird party to obtain an effectual hypothecary decree binding that otherproperty. Therefore, even if the sale of Asiathuroma’s interests is deemedto be good, a second action such as the present one is not barred thereby.
For these reasons, I hold that the decree entered by the learned DistrictJudge should be affirmed. The appeal is therefore dismissed with costs.
Basnayabe J.—
I have had the advantage of perusing the judgment of my brotherNagalingam and I agree to the order proposed by him. But as myapproach to the question is slightly different I wish to record my reasons.Before I do so it will be helpful if I state the facts.
1 (2937) 39 N. L. R. 80.
BASNAYAKE J.—Akamado Muheyadin v. TJiambiappah
397
By a Bond dated August 29, 1930 (hereinafter referred to as PI),two persons by name Sinnalevve Maracair Muhamadu Ismailevvc Mara*cair (hereinafter referred to as the deceased) and his wife AssanarleweMaracair Asiathummah (hereinafter referred to as the widow) mortgagedthe two lands described therein to secure a loan of Rs. 3,000 given to themby Vyramuttu Thambiappah (hereinafter referred to as the mortgagee).The Bond is in the following terms :
“ Know all men by these presents that we Sinnalevve MaracairMuhamadu Ismailevvc Maracair and wife Assanarlewe Maracair Asia*tliumci&*.kof Tiiv.No. 4, KattancudyinManmunai-Patti, Batticaloa, dohereby give mortgage bona u< Vyramuttu Ti.«»„kin.w»»V»in the manner, to wit:—
“This day we have borrowed and received from him a sum ofRs. 3,000 and we bind ourselves our heirs executors and administratorsand assigns to repay the said sum of Rs. 3,000 together with interestthereon at the rate of 12| per cent, per annum in a term of one year fromthe date of these presents to the said V. Thambiappah or to his heirsexecutors and administrators and assigns. In default of payment oftho said principal and interest as aforesaid he and his aforewritteu willhave overy right to sue at any time after the said term and recovertho said principal and interest at the rate aforesaid from the propertiesdescribed below or from any other property belonging to us jointlyand severally and for securing unto the said debt we do hereby speciallymortgage and hypothecate the properties described in the schedulebelow.”
The deceased died on June 30, 1938, leaving a joint will datedSeptember 22, 1922. Under that will the widow was the sole legatee andexecutrix. In October, 1938, shortly after the death of the deceased, themortgagee, who was evidently unaware that the deceased had left a willor of its term, with a view to putting his bond in suit moved that thewidow and all the children of the deceased be appointed legal represen*tatives to represent the estate of the deceased. After notice to all theparties, they were so appointed by the District Court and the widow was,in addition, appointed as guardian ad litem of the minor child.
On May 8,1939, action No. 224 M/D. C. Batticaloa (hereinafter roferredto as the first mortgage action) was filed by the mortgagee against thewidow in her personal capacity as debtor and against the widow andchildren of tho deceased as his legal representatives. The mortgageeasked for judgment in a sum of Rs. 5,559*37 and in default of paymentthat the lands mortgaged be sold and the proceeds applied in reduction ofthe sum due to him. The action was undefended although all the partieswere noticed. On May 4, 1940, decree was entered in the followingterms:
“ It is ordered and decreed that the defondants and substituteddefendants jointly and severally do pay to the plaintiff within' onemonth from the date of this decree, the sum of rupees five thousandfive hundred and fifty*nine and cents thirty-seven (Rs. 5,559*37)being the aggregate amount of the principal and interest due in respectof Mortgage Bond No. 17,005 dated the 29th day of August, 1930, and
308BASNAYAKE J.—Ahamado Afuheyadin v. Thnmbiappah
attested by S.Vythilingara,Notary Public, with interest. thereon at therate of nine per oent. per annum from 8.5.1939 till payment in fulland the costs of this action as taxed by the officer of court. Andit is further ordered that in default of payment of the said amount,interest and costs within such time, the promises mortgaged by thesaid bond, to wit: (Here follows a description of the mortgagedproperty.) and all the right, title, and interest and claim whatsoeverof the defendants into upon or out of the said sevoral premises mort-gaged by the defendants be sold by Mr. S. A. Sclvanayagam, Commis-sioner, and the proceeds applied for and towards the payment of thesaid amount, interest and costs and if such proceeds shall not bp suffircient for the payment in full.of such amount, that the defendants dopay to the plaintiff the amount of the deficiency and that the saidCommissioner shall follow the directions as contained in the conditionsof sale annexed hereto marked Lr. ‘ Y ’ as to the conduct and conditionsof the said sale. ”
Thereafter the mortgaged lands were sold for Rs. 3,045 in execution ofthe decree. Satisfaction of the judgment to that extent was entered.The mortgagee himself was the purchaser of the lands and he was givenpossession thereof by the Fiscal in September, 1941.
While these proceedings were in progress the eldest son of the deceased,Ismalevvo Marikar Aharaadu Mubaidoen (hereinafter referred to as theadministrator), produced the joint will and asked for probate onApril 28, 1939. He stated that his mother who was the sole legatee andexecutrix under the will, being a Muslim woman, was unable to under-take the duties of the office of executrix. Probate appears to have beengranted to the administrator with the will annexed on May 7, 1942.
* "i
On May 10, 1943, the administrator who was the second defendant inthe first mortgage notion instituted action No. 153 L in the District- Courtof Batticaloa where he sought to have the sale of the mortgaged lands setaside. The prayer in the plaint which was amended more than once inits final form as amended on February 2, 1944, raids :
“ Wherefore the plaintiff prays —
that he be declared entitled to the property described in the
schedule to the plaint filed of record excluding a jth share of
the property described under item (a).
that the defendant be ejected therefrom and the plaintiff he put,
placed and quieted in possession thereof.
for damages Rs. 500 per annum.
for costs and for such other and further relief as to this court
shall seem meet. ”
The administrator’s action was dismissed bv the Diatriot Judge hutin appeal1 his order woo ©ofe stsido and the District Judge was directed toeater judgment for the plaintiff as prayed for ; but with the followingreservation: ‘T.to judgment in the action and the subsequent order for' Aitamnio Muheyatin o. Tha’nViipp-ih [1915) 40^. L. H. 370.
BASNAYAKE^J.—Ahamado Muheyadin v. Thambiappoh
390
sale remains binding on A. M. Asiathuimnah The result of thatdecision is that except for one-fourth share of the first land mortgagedthe remainder re-vests in the widow, the sole legatee of the deceased,subject to administration but not free of the mortgage.
While the administrator’s action was pending in appeal the mortgageeattempted to recover the balance due to him by seizing and selling otherlands belonging to the deceased. The decision ofCourt
referred to above brought those proceedings t»alt, whereupon themortgagee instituted the present action on April 2, 1946, in which heasks for judgment in a sum of Rs. 6,000 against the administrator togetherwith interest at 5 per cent, till the date of decree and that in default ofpayment the mortgaged lands !>e sold and the proceeds applied towardsthe debt. Tbe District Judge gave judgment for the mortgagee andthe present appeal is from that decision.
In the instant case the rights of the respective parties must be deter-mined with reference to the instrument Pi. Upon a reading of thatdocument I am of opinion that the mortgagors have bound themselvesjointly and severally. The words “ recover the said principal and interestat the rate aforesaid from the properties described below or from anyother property belonging to us jointly and nexcrally57 put the matter beyonddoubt. The words 5 jointly and severally ” must be regarded as referringto the obligation of the obligors and not to their properties, for propertycan be owned either jointly or severally but not jointly and severally.
Under the English law, where an obligee has judgment against oneof two or more obligors who are jointly and severally bound, he is notprecluded from suing the other or others until he gets satisfaction1. Evenexecution against one is no bar against suing the other; for executionwithout satisfaction Is not any bar a.
The law on this subject is thus stated by Baron Bayley in Lechmerc v.Fletcher1 :
11 There are many cases in the books as to joint and several bonds,from which it appears, that though you have entered judgment on ajoint and several bond against one obligor, you are still at liberty to suethe other : unless indeed the judgment has been satisfied: but so longas any part of the demand remains duo, you arc at liberty to sue theother, notwithstanding you have obtained judgment against one.This, I think, establishes the principle, that where there is a jointobligat ion and a separate one also, you do not, by recovering judgmentagainst one preclude yourself from suing the other.”
Our law is not different. In the case of joint and several liability thecreditor can at his option sue one or more or all of the debtors in the sameaction; and a judgment recovered against ono of them is no bar to anaction against any of the others. The estate of one of the debtors whohas died is not thereby freed from liability a. An examination of the
1 Higgtns's Case, 6 Co—Rep. 44b at 46a; 77 E. R. 320 at 323.
Lechmere v. Fletcher, 1 C and M 624 ; 149 E. R. 549 at 554.
Whiteacres v. Hamktnson, Cro. Car. 75; 79 E. R. 666.
Huber's Jurisprudence of My Time, Vd. 1, p. 529, Ch. 25.
Van Leeuv>en's Censura Foreneis, Bk. IV, Oh. X VII, Secs. I <£ 2,
Barber’s translation, page 122.
Van dor Linden's Institutes 1,14, Secs. 6 dr 9 (Juta's translation 111-117).
400
BA8NAYAKE J.—Ahamado Muheyadin v. Thambiappah
precedents of this Court reveals a case1 which is not widely different fromthe instant case. In that case the first defendant and his wife had exe-cuted a bond wherein they bound themselves jointly and severally to theobligor to repay a sum of £40 they had borrowed from him. For securingtbc payment of the debt they mortgaged certain lands. The first defen-dant’s wife died before the institution of the action, to which the fourchildren of the deceased were made parties. The plaintiff’s prayer was forjudgment against the first defendant and the estate of his deceased spousefor the debt, and that the mortgaged premises might be decreed boundand executable for the paymonfc thereof. Judgment was given by thetrial judge for the debt as against the first defendant, and against onlythe interest in the mortgaged property of the second, third, fourth andfifth defendants, the children.
In appeal, as in this case, apart from the question of prescription, it wascontended that the action should have been against the personal represent-atives of the deceased spouse and not against her heirs. In the courseof his judgment, Burnside C.J. states :
“ The real question, therefore, is this—even assuming for the sake ofargument that the liability of the wife, aud her representatives, <is apersonal debtor was extinguished by proscription, but the liability ofthe husband for the entire debt remained, he having interrupted pre-scription-can the mortgagee enforce his claim against the whole of themortgaged property? The husband and wife by their contract boundthemselves jointly and severally to pay the debt, and they pledged theinterest of each in the hypothecated property for the payment of thewhole debt. It seems to me that it mattered not that the personalliability of either of the co-debtors had been extinguished,whether by prescription or otherwise, the entire property nevertheless,remained pledged for the payment of the debt so long as any debtorremained liable to pay it, and against whom the mortgage was notprescribed. Suppose, for instance, that instead of the second, third,fourth, and fifth defendants having been made co-defendants with thefirst, the executor of the deceased spouse had been sued ; in such caseit might have become material to decide whether the debt as againstthe deceased existed, or had been barred by prescription, because ifthe debt still existed her entire estate would be bound for the paymentof it; but it would be immaterial so far as it related to the mortgagedproperty, because so long as the liability of one of the joint and severaldebtors remained, and was not prescribed, the whole property which hadbeen pledged to meet the liability of either debtor continued bound forthat purpose. This seems to me to bo the legal effect of the contractbetween the parties, and it is uneffected in this action by any questionof prescription as between co-contractors. To hold otherwise would beto convert the extended security of the whole hypothecated land s forthe entire debt, so long as it existed, into a limited liability of eachcontractor’s share for the debt only so long as he himself continuedpersonally liable for it.”
1 Ambuideniyage Don Jvlie Wijeya Ounawardana v. Don Mattie* WirairiklcramoOunawardana Liyana and other*, 7 8. O. 0.188 {FuB Bench),
40!
BAS N AY A K E J.—Ahamaio Muheyadinv. 'Pkambiappah
In the instant case the sale of the hypothecated land has in effectbeCn set aside by the decision of this Court in the action by the adminis-trator against the mortgagee (supra). The order made by this Courtgranting the plaintiff’s prayer while at tho same timo declaring that thejudgment in the action and the subsequent order for sale were binding onthe widow cannot be reconciled with the facts disclosed in the presentproceedings that the widow was the solo legatee and executrix of thedeceased. Nor is that judgment consistent with the Full Bench decision[ have referred to earlier. The decree in the first mortgage action wasthat the defendants should jointly and severally pay the amount due.The decree though bad as against the defendants save and except thewidow was good as against her as stated by Cannon J. and was, in my view,executable against the mortgaged property even though the estate of thodeceased was unrepresented, for immediately on tho death of the deceasedall his properties, including the mortgaged property vested *, subject toadministration, in the widow the joint testator and sole legateeand executrix, who saw to it that the will was admitted to probate andaccepted the inheritance.
The authorities – cited by learned counsel for the appellant do not, in myview, govern tho instant case, Although the mortgagee cam tot be com-pelled against his will to split up his hypothecary action he is not. pre-cluded from instituting such actions as are necessary to enforce his encum -brance. Clarence J. states tho position thus in tho case of A mbulAeniyageDon Julia Wijeya Qunawardana 3 to which 1 have referred above :
“ A mortgage incumbrance extends overthewholoof the hypothecatedland, and any subsequent splitting up of the property by conveyancecannot affect the mortgagee’s right to enforce his incumbrance, exceptin so far as it makes a change in the individuals whom lie must makedefendants to his suit in order to reach the property …. Andit seems to me that it can make no difference if the subsequent splittingup of the property is affected by a devolution on inheritance as in thepresent case. ”
There is nothing, either in the Mortgage Ordinance or in the authoritiescited for the appellant, that excludes the remedy which the mortgageenow seeks. He did not obtain satisfaction in the first mortgage actionand is therefore in terms of his bond entitled t-o proceed against thoadministrator of the deceased.
Appeal dismissed.
1 Cassim v. Marikar and other*, 3 S. C. R. 180.
Dc Croos v. Don Johannes, (1905) 0 N. L. R. 7.
Silva v. Silva et al., (1907) 10 N. L. R. 234.
Witte on Mortgage, page 240.
Nathan, Vol. 2 (1913 Edn.), p. 567, para. 739.
Deonis Appu v. Qunmvardena, 16 C. L. W. 29,
Kadappa Chettiar v. Ramanayake et al., (1936) 38 N. L. R. 53.Voet Bk. XX, Tit. IV, Sec. 3.
'Saravanamuttu v. Solamuttu, (1924) 26 X. L. R. 385.
7 S. C. C. 183 (Full Bench) (supra).