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Present: Schneider J.
CASSIM v. BABUNHAMY.347—C. R. Matara, 12,698.
Mortgage action—Property mortgaged below Rs.. 1,000—Representativeappointed under section 642 of the Civil Procedure Code—Mayproperty other than mortgaged property be sold ?
Query, whether in execution of a decree entered against arepresentative api>ointed under the proviso to section 642 of theCivil Procedure Code other lands belonging to the estate of adeceased mortgagor than the land mortgaged could’be sold so asto pass good title.
Schneider J.—I am bound by Mohamadu Lebbe v. UmmaNatchia1 and Soysa v. Jayawardene2 …. I venture tosay that I am unable to agree with them.
LAINTIFF sued defendant *to Vindicate title to defendant’sresiding land in the following circumstances :—
Defendant’s father, Mathes, had mortgaged certain propertywith a man of Weligama, the administratrix of whose estate suedthe defendant on the bond as legal representative of,his fatherwhose sole heir he was. Decree was entered against defendantwithout qualification. The mortgaged property was sold, andthereafter writ was issued against defendant, who had been noticedto show cause against the reissue of the writ and had failed to showcause. The residing land was sold without protest, and plaintiff, aperfect outsider, purchased it, and was formally placed in possession.The question for the decision of the Court was whether plaintiff wasentitled to the land in these circumstances. The learned Commis-sioner of Requests dismissed plaintiff’s action.
Cooray, for the plaintiff, appellant.
E. C. de Soysa, for the defendant, respondent.
February 28, 1924. Schneider J.—
This appeal was presented to me.as involving one question,namely,whether in execution of a decree entered against a representativeappointed under the proviso to section 642 of the Civil ProcedureCode other lands belonging to the estate of a deceased mortgagorthan the land mortgaged could be sold so as to pass good title.The plaintiff-appellant’s contention was-that the answer to thisquestion should be in the affirmative. The learned Commissionerof Requests held against him, and he has appealed. I was referredto four cases, namely, (1) Mohamadu Lebbe v. Umma Natchia (supra)
1 (1S00) 1 N.L. R. 340.
2 (1914) 17 N. L. R. 218.
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(2) Soysa v. Jayawardene (supra), (3) Thambaiyar v. Aiyar J and (4)Peiris v. Eparanjina.2
The last two of these oases are of no assistance, and may bedisposed of-with a word. In Peiris v. Eparanjina {supra) I agreedwith the judgment of my brother De Sampayo. The substantiveground upon which it was decided was that the appointment of therepresentative under section 642 was irregularly made, and wastherefore ineffectual. The rest of the observations made by mybrother are mere obiter dicta. The case of Thambaiyar v, Aiyar.(supra) was cited to show that Shaw J. had expressed doubt in thesoundness of the two earlier decisions cited to me. ‘The questionnow under consideration did not arise in that case. His observationtoo was, therefore, in the nature of an obiter dictum.
One fact in the present case differentiates it from both of the twoother cases cited. In this case the property, other than the mort-gaged property, which was seized and sold, belonged to the estateof the deceased mortgagor, and even at the date of the sale was inpossession of his sole heir, whereas in Mohamadu Lebbe v. UmmaNatchia {supra) the property not mortgaged was claimed adverselyto the estate of the deceased mortgagor by the representative, andih Soysa v. Jayawardene {supra) the property other than themortgaged property, had been alienated by the heirs before thedate when execution was levied. But it is obvious, nevertheless,that both those cases were decided upon the principle that executionupon such a decree cannot be levied upon any property other thanthe property mortgaged.
Both are judgments of a Court constituted of two Judges. I amtherefore bound by them, and must follow them. As the amountinvolved is small, and as there were no contrary decisions to justifythe plaintiff in taking any risks, it seems to me that it is no hardshipto him that I should decide his appeal according to the law laiddown in those cases instead of referring the question involved fora decision by a Bench of Judges which could overrule those cases,although my view of the law is opposed to the law laid down’ in thosecases. I venture to say that I find I am unable to agree with thosecases.
The judgment in Moharnadu Lebbe v. Umma Natchia {supra),if I may say so with all respect to the learned Judges who decidedit, is not convincing. Neither of the Judges, who decided it, discussthe provisions of section 642. Lawrie J. thought as the representa-tive did not represent the whole estate of the deceased, lands otherthan those mortgaged could not be touched—that to render suchlands liable the ” general legal representative ” should be a partyto the action.
In Soysa v. Jayawardene {supra) the reasoning appears to bethat the effect of the words “ for all the purposes of the action ” in1 (1917) 19 N. L. B. 389.* (1922) 23 N. L. B. 4S5.
Cassim v•Babunhatny
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0a8»m> v.Babunhamy
the proviso to section 642 was to limit execution to the propertymortgaged as the action contemplated was “ the pure and simplehypothecary action.” With all my respect for the learning ofthose Judges, I cannot think that their interpretation of those wordsis correct. It seems to me that they might have decided otherwisehad they considered the history of the legislation on the point andthe latter part of the proviso itself. They make no special referenceto it.
At the date of the passing of our Civil Procedure Code of 1889,two actions were competent to a mortgagee. One in rem to realizethe property mortgaged, which must necessarily be brought againstt he person who was, in actual possession of the property at the-time.The other in personam against the mortgagor upon the principalobligation of debt. It was lawful for him to combine the twoactions or to pursue his remedies separately. The provisions of theCivil Procedure Code disclose that it was a distinct policy of theCode to prevent a multiplicity of actions. The provisions of sections33, 34, and 35, for instance, show this. Section 35 (c) expresslypermits a mortgagee to unite in one action claims to enforce “ any ofhis remedies under the mortgage.” When the Code comes to makeprovisions regarding mortgage actions in chapter XLVL, it expresslydirects that the mortgagor must be made a party to every mortgageaotion, whether he is or he is not in possession of the mortgaged pro-perty (section 640). This introduced an alteration of the previouslaw. That alteration created the necessity of providing for thepossibility of the mortgagor being dead at the date of the institutionof the action. In an earlier chapter it was made compulsory thatthe estates of deceased persons amounting to or exceeding Rs. 1,000in value should be administered. If the property mortgaged wasnot below Rs. 1,000 in value, it follows that the estate to which itbelonged was one which it was compulsory should be administered;the Code, therefore, directed that where the property mortgagedwas of that value, the executor or administrator of the deceasedmortgagor was to be sued, and threw the burden on the mortgageeto take the necessary steps for that purpose, if there was no suchrepresentative in existence.
There then remained the cases where the property mortgaged wasbelow Rs. 1,000 in value. The property mortgaged might be theonly property belonging to the estate, in which case the estate beingbelow Rs. 1,000 in value, the law did not compel its administration.Or there might be other, property belonging to the deceased, whichmight make the value of the estate Rs. 1,000 or more. In eithercase it would be inequitable to drive a mortgagee to the expanse oftaking out administration to the whole estate, because his interestwas confined to the recovering of his debt. The Code, therefore,provided a special procedure in the case of such mortgages. Themortgagee was to obtain the appointment by the Court of a person
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“ to represent the estate of the deceased mortgagor for all the pur-poses of the action.” Section 642 then proceeds to say what theeffect of such an appointment is “ The order so made and any orderconsequent thereon shall bind the estate of the deceased mortgagorin the same manner in all respects as if a duly constituted adminis-trator of the deceased mortgagor had been a party to the action.”
It seems to me that it is not correct to say that the action contem-plated in chapter XLVL is a pure hypothecary action. If by thosewords it is meant to describe the action mentioned in section 642as the mortgagee’s action in rent, the description will be opposed tothe plain meaning of the words of the action which disclose thatthe action should in every case be the combination of the actionin personam and in rem, because it requires the mortgagor to bemade a party although he is not in possession. But if, on the otherh uid, by those words were meant that the action was confined tothe object of realizing the mortgaged property after the death ofthe mortgagor, what necessity is there to make his representativea party to the action if the property is in the possession of thirdp arties. The pure action in rem was only resorted to where afterthe mortgagor had been sued and decree obtained, it was discoveredthat the property mortgaged was in the possession of persons notparties to the action.
In every mortgage action the prayer is for a decree for the sumdue, for a declaration that the property is bound and executable,and for an order that if the whole of the amount decreed be notsatisfied by the sale of the mortgaged property, that the balance berecovered by execution on other property. This form of prayer isgiven in the appendix to the Code under the form of the plaint ina mortgage action. That being so, it seems to me reasonable tosuppose that the words “ for all purposes of the action,” if notexpressly intended, are yet wide enough to cover those cases whereexecution has also to be levied upon property other than the propertyspecially mortgaged. They are words of limitation, but they mustbe interpreted^ the light of the intention, as a whole, of the legisla-tion on the subject, and the last clause of the proviso itself. Theorder of appointment of the representative is to bind not the pro-perty mortgaged but the estate of the deceased mortgagor, not inany limited manner but “ in the same manner in all respects as if aduly constituted administrator had been a party to the action.” Icannot conceive of words which can more plainly or effectivelyindicate that the decree will bind the estate of the deceased mort-gagor not only as regards the mortgaged property, but otherproperty as well. If the mortgagor had been sued, not only theproperty mortgaged, but his other property also would be liableto execution, why then should the mortgagee’s right be less exten-sive or in any manner curtailed when he sues his duly constitutedrepresentative “ for all purposes of the action ”—a representative
Gafism v.Babunhamy
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Oaasim v-JSabunhomy,
who represents him in the action in all respects as “a dulyappointed administrator of his estate.” I can see no inconveniencewhich can result from the special representative being so regarded,when the language of the section plainly permits it; but, on theother hand, ft does not seem an unreasonable thing to expose amortgagee to the risk, which will exist in almost every case, of notbeing able to’ recover the whole of the sum for which he obtains adecree, because the mortgaged property did not realize sufficient,while the heirs of the deceased succeed to his property free of aliability under which that property was during the deceased’s life-time. It is therefore with some reluctance that I dismiss the appeal,with costs.

Appeal dismissed.