004-NLR-NLR-V-06-MADAR-LEBBE-v.-NAGAMMA.pdf
( 21 )
MADAB LEBBE v. NAGAMMA.D. C., Colombo, 12,719.
Mortgage decree in favour of plaintiff—Registration thereof after conveyance to 1902.defendant had been passed and registered—Merger of mortgage bond January SI,in decree.
Where plaintiff obtained a mortgage decree against S and seized certainproperty which defendant had bought at a Fiscal's sale as propertybelonging to S, and where defendant had registered the conveyance inher favour prior to plaintiff's registration of the mortgage decree,— –
Held, that in an action brought under section 247 of the CivilProcedure Code, the plaintiff was not entitled to have the property madeexecutable under his decree, as his mortgage decree was of no avail asagainst the defendant's conveyance, which had been registered beforesuch decree was registered.
Government Agent v. Hendrikhamy (3 C. L. R. 86), not to be con-sidered any longer as law.
T
HE plaintiff obtained a mortgage decree against one Samsu-4een in ease No. 11,910, and seized the property mortgaged,
The defendant’s claim to the property having been upheld, theplaintiff brought the present action agains1^Jj.er under seotion247 of the Civil Procedure Code for a declaration that the landsclaimed by her be sold in' execution of the plaintiff’s decreeagainst Samsudeen.
t
( 22
1602. It appeared that Samsudeen's mortgage bond to the plaintiffJanuary 21. wag registered-in May, 1897, and that the mortgage decree againsthim, dated November, 1898, was not registered till October, 1899.In the meantime the defendant, having obtained a decree againstSamsudeen, caused the Fiscal to sell the land in dispute andbought it herself. The Fiscal’s conveyance to her, dated August,1897, was registered in September, 1899, a month before plaintiffregistered his mortgage decree.
The Additional District Judge (Mr. F. B. Dias) dismissed theplaintiff’s action in these terms:—
" From the ruling of the Appeal Court in 3 G. L. R. 86 (a caseon all fours with the present one) it is clear that the Fiscal’stransfer held by the defendant must prevail over the rights ofthe plaintiff tosell thelandunder his decree.The fact of his
• mortgage bondhavingbeenregistered beforethe defendant’s
transfer does not affect the question in any way. It is mergedin the decree, on which alone the plaintiff’s rights depend.
” It has been urged that, as the defendant had no Fiscal’sconveyances at the time she made her claim before the Fiscal,or at the time the Court inquired into her claim, she should notbe allowed toimproveherposition by thedocuments since
obtained. But a Fiscal’s conveyance, no matter when it. wasactually issued, relates back to the date of sale, and even thoughat the date of her claim the defendant had not obtained herconveyances, she had the right to apply for and obtain them.That was a sufficient interest in the lands seized to entitle her toprefer a claim. The conveyances are only evidences of thedefendant’s right to the lands, and it does not matter in the leastdegree when they were obtained. Here they are, and theyprove the defendant’s title to the lands. The plaintiff asks for adeclaration that the lands are now executable under his writ,but he can only have such relief if at the present moment hismortgagor has not been lawfully divested of his ownership.But he has been very effectually divested of title by thejudicial sale and prior registration of the purchaser’s convey-ances.”
Plaintiff appealed.
Sampayo (with him Van Langenberg), for appellant.—Thecase on which the District Judge relies (Government Agent v.Hendrikhamy, 3 G. L. R. 86) has been questioned by theSupreme Court in D. C., Galle, 5,041 (1 Browne’s Reports,Appendix B, p. 11); also judgment of Lawrie, J., in D. C., Batti-caloa, 2,072'(S. C. Minutes, 16th August 1901).
( 23 )
Bawa (with him H. J. G. Pereira}, for defendant, respondent.—The plaintiff and the defendant claim from the same source.It is open to the plaintiff to make this land executable under hismortgage by making defendant, who was in possession of theland ut dominus at the time of the seizure, a party to thehypothecary action. No such action was raised. The mortgagedecree in plaintiff’s favour is void, as against the conveyance indefendant’s favour, which is prior in registration. BegistrationOrdinance No. 14 of 1891, sections 16 and 17. Government Agentv. Hendrikhamy (3 G. L. R. 86). By plaintiff’s laches to get hisdecree registered in due time, he has lost his rights against thedefendant, and under that decree the land now in possession ofthe defendant cannot be sold. The land may still be subject tothe mortgage, but the decree on which plaintiff relies does nottouch the defendant.
Sampayo heard in reply.
21st January, 1902. Bonseb, C.J.—
We have come to the conclusion that the decree in this case isright, and must be affirmed. We do not, however, agree with thereasons given by the Additional District Judge.
The facts are shortly these. ✓ This action is one brought undersection 247 of the Civil Procedure Code, to have it declared thatcertain pieces of land, the subject of the action, are liable to beseized and sold in execution under a certain decree in favour ofthe plaintiff. It appears that in 1897 these lands were mortgaged tothe plaintiff, who duly registered the mortgage in 1898 and putthis bond in suit and obtained a mortgage decree. The onlydefendant to that action was the mortgagor, and the decree is ofcourse binding upon him. The decree was not registered.During the pendency of the action an ordinary creditor of themortgagor sued him and obtained judgment for his debt. Thejudgment-creditor caused these lands to be seized and sold bythe fiscal. They were bought by the present defendant in thisaction. She obtained a conveyance from the Fiscal, which was dulyregistered. Subsequently to the registration of this conveyance,the mortgagee registered his decree. The District Judge dismissedthe action, on the ground that it was covered by a case (Govern-ment Agent v. Hendnkhamy) reported in 3 C. L. R. 86, whereit was held that the mortgage was merged in the judgmentand that if the judgment was not registered before a subsequentconveyance, both the mortgage and the decree were gone, andthe purchaser could hold the land free from all encumbrances.But as both the Judges who took part in the judgment in the case
1002.
January 21.
( 24 )
1902. upon which the District Judge relied were subsequently parties to-January 21. judgments which were entirely inconsistent with the decision inBom^OJ. that case, I think we are free to consider that the judgment has-been over-ruled, and is not to be considered any longer as law.
It seems to me that there is no merger of the mortgage in thedecree, as I said, in the case reported in Appendix B of 1 Browne’sReports, p. 11. In that case I said that the personal remedy againstthe mortgagor upon the mortgage bond was gone, but that theoharge on the land still existed, and the decree merely confirmedits existence. At the same time the mortgage decree is adecree. which is capable of being registered under the RegistrationOrdinance, and ought to be registered, and if it is not registered,any person claiming adversely to it under a subsequently regis-tered instrument or decree is entitled to say that “ that unregistereddecree is void as against me.”
The result is that as regards the present defendant the unregis-tered mortgage decree is of no validity. It must be treated asnon-existent, and as this action is for the purpose of enforcing themortgage decree against them, the substratum of the action is gone.Of course, it will be open to the plaintiff by a proper proceedingto render the land, of which they are_owners, subject to themortgage executable for the mortgage debt. But he mustestablish the debt and the charge as against them. '
I am. afraid that the necessity of registration, and also thenecessity of complying with chapter 46 of the Civil ProcedureCode, are too often lost sight of by persons interested and theirlegal advisers.
Wendt, J.—
I agree. As, to the merger which was relied upon, besides the' reasons given by the Chief Justice, I think another reason againstit is that the defendant in the present case was not a party to themortgage decree, and assuming that some interest in the land wasvested in him at the date of the decree, I do not see how thatinterest could be merged in the decree by which he was notbound.
As regards the action under section 247, it is obviously based onthe decree alone, and although certain cases have been referred toin which the plaintiff-creditor in such an action was allowed totreat it as in effect, a hypothecary action, I do not think that weought to penult that in the present case, having regard to theallegations in the answer against the bond fides of the originof these transactions, allegations which have not yet been framedinto issues or tried.