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Present: Ennis A.C.J. and Loos A.J.
APPUHAMY v. NAIDE.
109—D. C. Kurunegala, 7,106.
Mortgage—No address left with Registrar by either mortgagee or puisneincumbrancer—Actionby mortgagee without . making puisne
incumbrancer a party—Mortgagee awareof puisne incumbrance—
Puisne incumbrancer awareofmortgage action—Bidby puisne
incumbrancer at auction—Estoppel—Subsequent action by mort-gagee—Civil Procedure Code, s. 643.
Hendrick executed ' aprimary mortgage in .1912 in favour of
defendant and Peiris. In 1913 he executed a secondary mortgagein favour of the second plaintiff. On January 7, 1918, he sold thelands to the first and second plaintiffs. ' The first plaintiff paid offthe secondary mortgageandhalf of the primary mortgage.On
February 27 the defendant put the primary mortgage bond jusuit without making the plaintiff a party, though he was awareof the purchase and bought the land himself. No address, asrequired by section 643oftheCivil Procedure Code,wasgiven
either by the defendant or the plaintiff.
Held, that the plaintiffs were not bound by the mortgage decree.
The facts that the plaintiff knew of the pendency of the mortgageaction but took no steps,andthathe bid at the auctionsale,were
held not sufficient in the circumstances of this case to constitutean estoppel.
Held, further, that the defendant could not bring a fresh actionon the mortgage bond to make, the plaintiffs
rj'BLE facts appear from the judgment.
Bawa, E.C. (with him Roberts), for appellant.
E. W. Jayawardene (with him Weefasinghe), for respondents.
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June 27, 1919. Ennis A.C.J.—
This was an action for declaration of title to half share of certainlands and for ejectment. It appears that the land originallybelonged to one Hendrick Singho, who mortgaged it on a primarymortgage on October 23, 1912, to the defendant and one Peiris Singho;He subsequently mortgaged it on a secondary mortgage on Novem-ber 18, 1913, to the second plaintiff. On January 7, 1918, he soldit to the first and second plaintiffs. The first plaintiff assets thathe had paid off the secondary mortgage, and paid off half of theprimary mortgage to the administrator of Peiris Singho’s estate.On February 27, 1918, the defendant put the primary mortgagebond in suit and received judgment, had the land sold, 'and boughtfor himself. The plaintiff was not a party to that action, and noaddress for service as required by section 643 of the Civil Procedure.Code was given tp the Registrar by the defendant or by the plaintiff.The learned Judge held that the plaintiff was not affected by themortgage decree, because the mortgagee had not registered hisaddress, and had further failed to make the plaintiff a party, althoughhe knew of his purchase. The defendant appeals. The appealraises an interesting point as to the construction of section 643and 644 of the Civil Procedure Code. It is contended for theappellant that those sections are not exhaustive of the cases inwhich a person is bound by the mortgage decree in a case in whichhe is not made a party. Two cases were cited, in both of whichneither party had registered an address, but it was held that themortgagee’s decree was binding, as the subsequent grantees hadpurchased during the pendency of the mortgagee’s action. Thesetwo were the cases of Sebastian Perera v. Jusey Perera 1 and Muheethv. Nadarajapillai.2 It,was argued that the sections 643 and 644 arenot exhaustive, and do not expressly say what is to happen in casesin which the mortgagee has not registered an address for service,that section 4 of the Civil Procedure Code comes into operation,and that under that section the Court must look to the previouslyexisting procedure and practice. It was contended that underthe procedure and practice before the introduction of the Code amortgagee had his remedy against the mortgagor, a> personalremedy; and that his remedy against the land was effectual, if hemade the person in possession of the land defendant in. the case.In support of this contention the case of Marimuttu v. De Soysa 3was cited. That was a FuL Court decision, and would control thiscase, but for the fact that the provision of chapter XITVI of the CivilProcedure Code have been held to supersede the Roman-Dutchprocedure for the realization Of money secured upon the mortgage.This was a matter which came before the Full Court in case ofSuppiramaniam Chetty v. Weeresekere,* where it was definitely held
i (1910) 14 N. L. R. 20.
» (1917) 19 N. L. R. 461.
*8 8.0. 0.121.
(1918) 20 N. L. -R. 170.
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that only one action was now surviving to a mortgagee, and thatwas the action under chapter XLVI. of the Civil Procedure Code.Whether or not in such an action it is necessary or desirable to jointhe person in possession it is unnecessary to consider, because in thepresent case it would seem that there is no affirmative evidence thatthe person sued by the defendant in his mortgage action was in posses-sion of the land, and so, as a matter of fact, the appellant in anyevent will be unable to fall back on the mortgage action as an actionunder the Boman-Dutch law, in which the mortgagee had suedthe person in possession as such for the purpose of binding the land.There is no such allegation in the plaint in that action. I would,however, mention certain cases, namely, Peiris v. Weera»inghe 1 andElyatamby v. Valtiammai,* which went so far as to decide that amortgagee, who had not registered his address, could not succeedas against subsequent grantees and puisne incumbrancers, eventhough they also had not registered their address. Compliancewith section 643 in the matter of registering an address for servicewas held to be a condition precedent to success. The only otherpoint in the appeal was a question of estoppel. It was argued forthe appellant that the plaintiff was estopped from setting up a claimto the land as against the defendant in possession, because theplaintiff knew of the pendency of the- mortgage action, and tookno steps, and further, that the first plaintiff bid at the auction sale.It was suggested that this showed that the plaintiffs did not relyon their deed as any impediment to the sale. I appreciate theterms used in expressing this point in the argument of the appeal,but fail to see how it can really create an estoppel in the circumstancesof the present case. The learned Judge has found that both theparties were well aware of one another’s action, and that the defend-ant had knowledge of the plaintiff’s purchase, and being aware of thetrue state of affairs,, he can hardly fall back on an estoppel on a pureassumption that he acted on a belief to the contrary.
It was finally .contended on appeal that the defendant’s mortgageis not dead. I am not prepared to say that it is dead, but foreffective purposes it is quite inoperative against the plaintiff. . Thedefendant cannot bring a second mortgage action, as he has alreadyexhausted that remedy, and after this case by the plaintifE, he cannotbring any other kind of action successfully against the plaintiff byvirtue of the mortgage, even if it is not quite extinct.
In the circumstances I would dismiss the appeal, with costs.
Loos A.J.—I am of the same opinion.
*9N. L. R. 269.
• (1913) 16 N. L. R. 910.
APPUHAMY v. NAIDE