004-NLR-NLR-V-07-MUDALIHAMI-v.-PUNCHIRALA.pdf
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1903.
July 3and 6.
MUDALIHAMI v. PUNCHIRALA
B., Kurunegala, 10,512.
Costs—Action on mortgage bond—Order of Court as to costs of second andthird defendants and costs of the second set of added parties.
Where the first defendant was sued on his mortgage band and thesecond and third defendants were joined as parties in possession ofthe land mortgaged under a conveyance made by the first 'defendantsubsequent to his mortgage, and certain persons came into the suit asadded defendants denying the right of the mortgagor to mortgage to theplaintiff the said land, and the plaintiff thereupon moved for leave towithdraw his prayer for the mortgage decree, as he did not wish to enteron a contest as to title,
Held, that the plaintiff was liable to pay the costs of the second andthird defendants, but not the costs of the added' defendants, becausethey came in irregularly.
In a hypothecary action it is irregular to raise questions of title.
A
CTION upon a mortgage bond. Gertain persons came into the
. suit as added parties denying the right of the mortgagor tomortgage to the plaintiff the lands which formed the subject of themortgage. Thereupon the plaintiffs moved for leave to withdrawtheir prayer for the mortgage decree. The two sets of addedparties moved for costs incurred by them in asserting their claim.The plaintiff objected to paying their costs on the ground that theyhad come too prematurely into Court, and that they should havewaited till seizure and execution and then have pressed their claim.
The Commissioner’s order was as follows:—“ The only questionfor me is that of costs claimed by the added parties. Persons whovoluntarily come in as claimants of land hypothecated to a plaintiffsuing for his mortgage debt do so at their own risk, for there isno reason why the debt should not be paid by the defendantwithout execution or sale of the mortgaged property. I hold there-fore that the first set of added parties are not entitled to theircosts. The plaintiff did not consent to their being joined, but theplaintiff did consent to Mr. Gunawardene’s clients being joined’,and for that reason the plaintiff ought to pay their costs. "
“ I give leave to withdraw the prayer for the mortgage decree,the plaintiff paying the co&ts of – the defendants and of Mr.Gunawardene’s‘clients.” ,
The plaintiffs appealed. The, case was argued on 3rd July, 1903.E. W. Jayawardene, for appellant.
H. A. Jayawardene, for added defendantst respondents.Batuwantudawe, for .second and third defendants, respondents;
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6th July, 1903. Gbenieb, A.J.—
This iB an appeal from an order as to costs. No appeal lies asof right from such an order, and I was therefore asked to exeroisethe powers of revision which this Court has. But before I do so1 must be satisfied that the order has worked a clear injustice, orthat it has violated some principle which ought to regulate theliability to pay costs.
There are two sets of added parties in this case and threeoriginal defendants. The plaintiffs’ action was on a mortgagebond executed by the first defendant in their favour. The secondand third defendants were joined by the plaintiffs, as they claimedand were in possession of the land mortgaged to the plaintiff bythe first defendant by right of a deed of transfer executed subse-quently to the mortgage. The first set of added defendants, whovoluntarily came in as claimants of the land mortgaged to plaintiffs,were ordered to pay their own costs, and they are evidently satisfiedwith the order. The plaintiffs were ordered to pay the costs of thesecond and third defendants and those of the second set of addedparties in the following circumstances: —On the day of trial theplaintiffs’ proctor asked for a money decree only, as he did not wishto enter on a contest as to title. By this action on his part he clearlymade his clients liable for costs to the second and third defendantswho were brought in by the plaintiffs, and who had filed answerand were presumably ready for trial. I cannot see any grounds todisturb the order of the Commissioner whereby the plaintiffs wereto pay the second and third defendants’ costs.
Then, as regards the costs of the second set of added parties,much depends upon the circumstances under which these partiescame into the the case. It was said, and so found, by the Commis-sioner that plaintiffs consented to their being joined. They arenot, therefore, in the position of the first set of added parties whocame in voluntarily. On reference to the motion paper dated the3rd February, 1903, I find tha't the plaintiffs’ proctor endorsed onit his consent to the statement of claim of the second set of addedparties being admitted into the record. But this was hardly anact for which the plaintiffs should be held liable to the extent towhich the Commissioner has held item liable jn the nqatter ofcosts. In the first place, I think that t>oth sets Of added partiesshould not have been allowed to come int<5 the case in the waythey did and raise questions of title which wire .more appropriateto an action ret vindicatto than to a hypothecary action like thepresent one. If the plaintiffs had brought them in alleging thatthey were in possession of the mortgaged property, and were o5-
1903.
July 3and 6.
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isos..
July 3and 6.
Gbsnteb,
A.J.
therefore necessary parties, the case would have been differentthen. If they were the real owners of the land and in possession,no decree in this action could affect them. The second set ofadded parties, however, have managed to find a place in the record,but I do not think it right or equitable that the plaintiffs should .pay their costs. They came in irregularly, and they must go outwithout mulcting anybody in costs. They were not brought inby plaintiffs, and I do not think that the consent given by theplaintiffs’ proctor, which, at the best, was an informal one, can beconstrued into an act pledging his clients to the payment of theircosts in the event, which was not then thought of, of the prayerfor a mortgage decree being withdrawn. In these circumstancesit would, in my opinion, be unjust to condemn the plaintiffs inthe costs' of the second set of added defendants, and I wouldaccordingly, in revision, set aside that part of the order dealingwith those costs.