144-NLR-NLR-V-24-MOHAMADU-BUHARI-v.-SILVA.pdf
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Present : De Sampayo A.G.J. and SohneiderJ.
MOHAMADU BUHABI v. SILVA263—C. B. Matara, 12,186.
Sale under mortgage decree—Mortgage action not registered—Lis pendens—Sale under simple money decree—-Right of purchaser undermortgage decree to refer back to mortgage bond.
D mortgaged the land in question to 8 in 1915 by a bond whichwas registered in the same year. S pot the bond in suit in 1090 andobtained a decree in the same year. The Us pendens was notregistered. The mortgaged property was sold in execution onMay 11, 1931, and purchased by I/. Fiscal’s transfer was issued toL on August 22, 1931, and registered on August 23, 1921.
On a writ against D on a simple money decree on March 7, 1921,one-eighth share of the landwas sold on May 4, 1931,and purchased
by defendant, to whom theFiscal issued the transferon August S3,
which was registered on September 7, 1921.
Held, that L had superior title.
“ The purchaser under the mortgage decree is entitled to- referhis title back to the mortgage bond.
T
HIS case referred to a Bench of two Judges by Schneider J. bythe following judgment: —
An important point has been raised in this appeal, . which I wouldreferto a Bench of two Judges,under the provisions ofsection 41 of
the Courts Ordinance, 1889.
The plaintiff claimed titleuponthe . following facts:—One Divunu
Hamy was entitled to an undivided half of a land described as lot B,and she mortgaged that interest with one 8iman Appu, who sued opon.the bond in C. B. Matara, No. 11,254, to which the defendant was not a,party. The action was instituted on June 18,1930, and decree was
entered on October 1,1920. Theland was sold by theFiscal under
this decree on May 11,1931, andatransfer bearing No. 15,739 dated
August 22, 1921,was issuedbytheFiscal. Thistransfer was registered,
on August 23,1921* The defendant claimed title adversely to the
plaintiff upon the following facts. Under a writ issued against the saidDivunu Hamy inC. B. Matara,No.8,983, the Fiscal sold an undivided
one-eighth of the land, of whichlot B formed aportion at onetime. The
defendant, as purchaser, obtained Fiscal’s transfer No. 15,740 datedAugust 22, 1921, and registered on September 7, 1921.
The question which Iwishtoreferto a Benchof two Judges is one
whether the plaintiff’s title is entitled to prevail against that of thedefendant even in respect oftheundivided one-eighth share of lot B
which appears to me tobethe onlyinterest which the defendant can
claim should it -beheldthattheplaintiff’s title isnot superior to that of
the defendant. The decisions oftheFull Benchin the casesof Multu-
rsmen e. Masstlamany 1andSilvav.Gunawardena3 appear to me to
cover the point in dispute, butMr.Soertsz, onbehalf of heappellants,
1028.
1 (1913) 16 N. L. B. 269.
• (1915) 18 N. L. B. 241.
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1928.submitted that the effects of section 3 ofOrdinance No. 29 or 1917 was
—to deprive the plaintiff ofany benefit which he might derive from action
PuflurTrNo. 11,264, to -which thedefendant wasnot a party, and which was
Sflva*unregistered. Mr. Soertszrelied on thecase of Davith v. Davith. 1
As there seems to be some conflict between this case and the FullBench decisions, let this appeal be listed before a Bench of twoJudges.
Soertsz, for defendant, appellant.—The provision for the regis-tration of Its pendens was introduced in order to protect bona fidepurchasers. The purchase by defendant was no doubt subject tothe mortgage bond, but it is submitted that he cannot be bound bythe decree in the action on the bond. He was not aware of thedecree, and it is inequitable that he should be bound by it. If theaction had been registered, he would have had an opportunity ofpaying the amount due. The plaintiff should suffer for the failureto register. Counsel cited Davith v. Davith (supra).
Keuneman (with him Croos-Da Brera), for plaintiff, respondent.—The plaintiff's title is based on a mortgage bond which is both priorin date and registration.. His title relates back to the bond.Mutturamen v. Masillamany (supra) and Silva v. Gunawardena (supra).The question of lie pendens does not arise. The plaintiff does notrely on this pJea, and the non-registration of the lis does not •matter. The question of title can be always discussed in a subse-quent action. The effect of registration of lie pendens is to makethe purchaser bound by the result of any pending action.
June 20, 1928. De Sampayo A.C.J.—
This appeal originally came before my brother Schneider sittingalone on May 29, 1923, and a point, regarding the effect of non-registration of a Its pendens, which was raised at the argument, hasbeen referred by my brother to a Bench of two Judges.
The facts may be briefly stated as follows:One Divunu
Hamy, who was entitled to half share of a land marked lot B in theplan, mortgaged the same to Siman Appu by bond dated November26, 1915, and duly registered on December 16, 1915. The bondwas put in suit on June 18, 1920, in C. B. Matara, No. 11,524, and amortgage decree obtained on October 1, 1920. In execution ofthis decree the mortgaged property was sold on May 11, 1921.Beiris Appu became the purchaser, and the Fiscal issued to him atransfer dated August 22, 1921, and registered on August 23, 1921.Deiris Appu sold the property to the plaintiff on November 18, 1921.The plaintiff has brought this action against the defendant fordeclaration of title and ejectment.
The defendant, tracing his title to the same Divunu Hamy,claimed one-eighth share of the land. It appears that Divunu Hamywas judgment-debtor in the action No. 8,983 of the AdditionalCourt of Bequests of Matara. Writ was issued against her in that
1 (1922) 4 C. L. R. 43.
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action on March 7, 1921, and thereunder one-eighth share pf the landwas sold on May 4, 1921, and purchased by the defendant, to whomthe Fiscal issued the transfer dated August 22, 1921, and registeredon September 7, 1921.
The mortgage action No. 11,524 was duly constituted, because atthe date of its institution and even at the date of the decree thedefendant had not acquired any interest in the mortgage property,and Divunu Hamy, the mortgagor, was the only person that needhave been sued. The Fiscal's transfers in favour of Leiris Appuand the defendant, respectively, were issued on the same day, andtherefore the matter of the prior registration of Leins Appu'sFiscal’s transfer may be left out of consideration. Nor do the pro-visions of sections 643 and 644 of the Civil Procedure Code apply,because the defendant was not a 44 puisne encumbrancer ” withinthe meaning of those sections. The question then between theplaintiff and the defendant must be decided on other considerations.The registration of the mortgage bond in December, 1915, must,I think, have its full effect. The Fiscal’s transfer in favour of thedefendant, which is subsequent both in date * and in registration,cannot prevail over claims under the mortgage. The purchaserunder the mortgage decree is entitled to refer his title back to themortgage bond. The Full Bench cases (Mutturamen v. Masillamany(supra) and Silva v. Gunawardena (supra) are decisive on this point.The reason for referring this case to a Bench of two Judges was thatcounsel for the defendant, relying on Davith v. Davith (supra), hadcontended that the mortgage decree was not binding on the defendant,because the mortgage action had not been registered as a Us pendensas required by section 27 (a) (1) of the Registration Ordinance, 1891,as amended by Ordinance No. 29 of 1917. What the amendingOrdinance declares is that no lis pendens shall^bind a purchaser,mortgagee, or lessee, unless the same shall be registered, &c. Itappears to me that lis pendens is a weapon of offence which the partyrelying on it must plead or otherwise put forward. In the presentcase the plaintiff does not seek to defeat the defendant by sayingthat the defendant purchased pending the mortgage action, and wastherefore bound by the result of that action. In the original plainthe merely pleaded the deed in his favour from Leins Appu, andeven in the amended plaint he only traced his title to the registeredmortgage bond. What the defendant appears to attempt to do is tothrust upon the plaintiff a weapon which the plaintiff never wanted.As a matter of fact the plaintiff relies on other grounds, such asthose decided in the Full Bench decisions above referred to. It isnoticeable that (Davith v. Davith (supra) ) does not. refer to thosedecisions, and they do not appear to have been cited. The plaintiffin that case was in a position and similar to that of the defendant
•Note.—The Fiscal’s transfer In favour of defendant bore a subsequent number,but was issued on the same date (August 22).
1588.
Da Sakpayo
MohamaduBuhari t»Sitva
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IMS. in this oase, and Ennis J., while expressing the opinion that aDk 8uvato purchaser may acquire good title pending a mortgage action if the*T. mortgage action hak not been.registered, proceeds as follows:—
“ This plaintiff, therefore, it would seem, has purchased a landsubject to a mortgage. The facts in the case are verymeagre, and the defendant (purchaser under the mortgagedecree) has not made any claim on the basis of this position.It may be that he cannot make any such claim, but thequestion has not been gone into or considered. ”
The Court, while dismissing the appeal, reserved to the defendantany- rights which might remain to her under the mortgage. It isthus clear that the point now under consideration was not decidedin Davith v. Davith (supra), but was reserved for future decision if itwere properly raised. I think, therefore, we are at liberty to considerthe question of title in this case independently of any opinionexpressed in Davith v. Davith {supra) with regard to the effect ofnon-registration of a. mortgage action as a lis pendens.
In my opinion the appeal should be dismissed, with costs.Schneider J.—I agree.
Appeal dismissed.