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MOHAMADU LEBBE v. UMMA NATCHIA.
D. C., Kalutara, 1,134.Bos judicata — Action by mortgagor against representative of deceased mort-gagee—Civil Procedure Code, s. 642—Effect of mortgage decree on suchrepresentative—Personal claim of representative to land mortgaged bydeceased.
A mortgage decree in an action brought against the representative,appointed under section 642 of the Civil Procedure Code, of a deceasedmortgagee, will estop Buch representative from questioning the right ofthe mortgagor to mortgage the lands decreed executable.
If the representative, who was the widow of the mortgagor, wasentitled to the land in her own right, she should not have assumed therepresentative character imposed on her.
Per Lawbie, J.—Under a decree passed in such an action no otherland can be seized in execution than those named in the decree aBexecutable.
N a previous case plaintiff having sued the defendant, asrepresentative of the estate of her deceased husband, for the
recovery of a sum of Rs. 353 and interest secured by a mortgagebond executed by her late husband, obtained a judgment declaringthe mortgaged lands bound and executable for the said debt. Onwrit being issued, the Fiscal seised certain other lands in additionto the land that was mortgaged, and the defendant claimed theselands and one of the mortgaged lands as her own. The DistrictJudge upheld her claim, and the plaintiff brought the presentaction against the defendant, under section 547 of the CivilProcedure Code, to have a declaration that the said lands wereliable to be sold under the said writ.
The District Judge dismissed the plaintiff’s action, and theplaintiff appealed.
Dornhorst, for appellant.
Penes, for respondent.
11th February, 1886. Lawbie, J.—
Meera Lebbe Marikar mortgaged some lands to the plaintiff;after the mortgagor’s death his widow was appointed to representthe estate of the deceased mortgagor for all the purposes of anaction on the mortgage.*
The widow appeared and contested the mortgagee’s claim, buther objection or defence, whatever it was, was repelled, and amortgage decree was pronounced.
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On writ on thin decree some lands were seized, and the widowclaimed these as her own by a title adverse to her late husband.
The Court sustained the claim and released the property fromseizure.
•Tan. 31 andlib. 11.
The plaintiff then brought thiB action under section 547. Oneof the lands seized and claimed was a land mortgaged which hadbeen declared bound and executable in the judgment against thedefendant.
It seems to me clear that she is bound by that judgment, andthat the plaintiff is entitled to have the land sold.
As to the other lands seized, which were not mortgaged, thedefendant is entitled to claim that these be excluded from theseizure. She does not represent the whole estate of the deceased;assuming that these mortgaged lands belonged to the deceased,they can be touched only in a suit to which his general legalrepresentative is a party I need not enter on the question whetherthese unmortgaged lands belonged to the widow personally. Itis enough that we decide that, under a decree passed in an actionagainst a representative of the estate, appointed under section 642,no other land can be seized than those named in the decree asexecutable.
The judgment dismissing the action is 6Ct aside. The plaintiffis entitled to judgment declaring the mortgaged land executable,but his action, quoad the other lands, must be dismissed. I wouldgive no costs, success being divided.
It seems to me that defendant cannot escape the consequencesof taking up the appointmentof administratrix of the deceasedmortgagor’s estate for the purpose of this hypothecary action, andnot limiting her defence—if it were possible to do so—to theexistence and subsistence of the debt for which the speciallyhypothecated properties were secured by her deceased husband.
She could easily have found out by inquiry the fact that herlands, as she claims them to be, had been secured by her husbandwithout any right so to bind them, and 6he was not obliged toassume the representative character imposed on her.
I fail to see how she can now be heard to 6ay that the landsspecially mortgaged by her late husband are not executable underthe mortgage decree to which she was a party.
I am therefore of opinion that the judgment should be modifiedin the manner proposed by my brother Lawrie.
MOHAMADU LEBBE v. UMMA NATCHIA