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MUTTIAH CHETTY v. DE SILVA et al.
Joint and- several promissory note—Liability of executor of deceasedmaker to be sued jointly with the survivor—Civil Procedure Code,as. 14 and IS.
Under section 15 of the Civil Procedure Code the executor of adeceased person who was a party to a joint and se* era! promissorynote can be joined with the surviving party in an action by theholder of the note.
T | THE facts of the case appear in the judgment of Withers, J.jDomhorst and Wendt, for appellant.Cur. adv. vutt.
28th July, 1896. Withers, J.—
In this case the plaintiff, as payee, seeks to recover the prin-cipal and interest of a note alleged to have been made at Galleon the 9th June, 1893, by one Sadris de Silva and one Janis.Jams is dead, and his executrix is made a party defendant in thiscase.
The order appealed from is an order directing that the nameof the second defendant be struck out of the plaint as improperlyjoined. This being a case of a promissory note the English Lawapplies, subject to any modification by local Ordinances. Thisis a joint and several promissory note.
Formerly, all could be used jointly on such a note, or each couldbe sued separately.
When a note is joint only, the whole liability falls on thesurvivor, and if he dies the executor of the survivor can alone besued (see 3 C. L! R. 90).
In the 9th edition of Williams on Executors the law is thuslaid down:—“ But if the contract be several or joint and several,“the executor of the deceased contractor may be sued at law in“ a separate action, but he cannot be sued jointly with the survivor“ because one is to be charged de bonis testatoris, the other de“ bonis propris.”
For this statement the learned editor refers to Hall v. Huffam(2 Lev. 228.) He makes no reference to the rules of*the SupremeCourt, 1883. Order 16, rule 6, enacts as follows :—
“ The plaintiff may at his option join as parties to the same“ action all or any of the persons severally or jointly and severally“ liable on any one contract, including parties to bills of exchange“ and promissory notes.”
( no )'1806.July 24and 28.
Section 15 of our Civil Procedure Code adopts that rule wordfor word.1
There was no appearance for the respondent in this case.Counsel for appellant has not found any instance of an Fngliahcase in which the surviving maker of a joint and several note andthe legal representative of a deceased maker were joined in thesame action.
I can find no 'precedent of such a case in modem works onpleading in Courts in England. I can well understand no case ofthe kind being found in England, because in the Queen’s BenchDivision it would be scarcely possible to work out a judgment debonis testatoris, which must be the judgment against an executoras such. Our courts know no distinction of equity and commonlaw. They are simply courts of law, one and indivisible so tospeak.
In principle I see no objection to section 15 of the Civil Proce- .dure Code being interpreted to include in persons liable as partiesto promissory notes deceased persons who are bound in theirestate duly represented to answer for debts contracted in theirlifetime, and which at the time of their death have not becomebarred by any statute of limitations.
In the absence of express authority to the contrary, I propose tohold that in our courts, by virtue of section 15 of our Civil Proce-dure Code, the executor of a deceased person who was a party to ajoint and several note can be joined with the surviving party inan action by the holder of the note.
For these reasons I agree with my brother in setting aside theorder of the Court below.
When one of two makers of a joint and several promissorynote dies, his executor is liable to pay^the debt.
Whether the executor can be sued along with the survivingmaker of the note, or must be sued in a separate action, is amatter not of liability but of procedure, which is governed, bythe 14th and 15th sections of the Civil Procedure Code.
I recommend that the order to remove the name of the seconddefendant from the action be set aside, and that the case be sentback to the District Court in order that the second defendant becalled on to file answer, and that the case be proceeded withaccording to law.
The plaintiff to have the costs of this appeal.
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BANDIRALA v. SAIBO el al.D. C., Kwruntgala, 931 (L 251).
July 2 and 7
Property sold subject to mortgage—Bights of mortgagee^—Claim—Regis-tration.
Certainlands mortgaged to B were seized in execution of a moneydecree obtained by A against the mortgagors. B, as mortgagee,made a claim under section 241 of the Civil Procedure Code. TheCourt, after inquiry, directed, under section 246, that the seizurebe continued subject to the mortgage. The lands were put up forsale by the Fiscal with intimation to intending bidders of B’smortgage, and B bid up to the amount of his mortgage. The landswere ultimately knocked down to A. Before A got his Fiscal’sconveyance or obtained possession of the lands B brought an actionagainst his mortgagors on the mortgage bond, obtained payment,and had the same lands seized in execution A, who in the mean-time had obtained a Fiscal’s conveyance, in which no mention wasmade as to the sale to him being subject to the mortgage in B’sfavour, claimed the lands. His claim was upheld, and B sued himand the mortgagor to have it declared that the lands were executableunder B’s writ. The Fiscal’s conveyance in favour of A had beenregistered prior to the mortgage bond in favour of B.
Held, that the lands were still subject to the mortgage in B’s favour,and that he was entitled to succeed in the action.
r j 1H hi facts of the case appear in the judgments.
Dorrihorst, for appellant.
Bawa, for respondent.Cur. adv. vuU.
7th July, 1896. Lawbxe, J.—
Certain lands were mortgaged to Bandirala. They were seizedin execution on a money decree obtained by Assena Pulle againstthe mortgagors. Bandirala, as mortgagee, made a claim undersection 241. His claim was investigated, and the Court (undersection 246) thought fit to continue the seizure subject to themortgage. The lands were sold by the Fiscal. At the sale •intimation of Bandirala’s mortgage was given and Bandirala himselfbid up to the amount of the mortgage, but Assena Pulle bid moreand the lands were knocked down to him. Before Assena Pulle gotthe Fiscal’s transfers Bandirala brought action on his mortgageagainst the mortgagors, only omitting Assena Pulle, because hewas not yet in possession.
When the Fiscal executed the conveyance to Assena Pulle hemade no mention that the sale was subject to Bandirala’s mortgage.When Bandirala caused the Fiscal to seize the lands under themortgage, Assena Pulle claimed them. His claim was sustained by
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1896. the Court on 3rd August, 1894, and on 7th August, 1894, Bandi-July2^and 7. ra]a brought this action against the mortgagor and against AssenaLa wane, j. Pulle ter have it declared that the mortgage debt was stilldue, and that the lands were bound and executable for that debt.Assena Pulle pleaded his Fiscal’s transfers and their prior regis-tration, and urged that he was not bound by the decree in themortgage action to which he was not a party.
The District Judge sustained the defence and dismissed theaction. Assena Pulle knew, from the time of his seizure, thatBandirala had a mortgage over the lands, and that if he brought atthe Fiscal's sale he would purchase a property burdened; andwhy with that knowledge he should oppose the lands being sold .for the mortgage debt (if he himself did not choose to redeem) Ido not know.
The lands are undoubtedly subject still to the mortgage.
The judgment must be set aside, and the plaintiff must get thedecree he asks for, subject to his succeeding in the inquiry whichmy brother Withers suggests.
I think this appeal is entitled to succeed. I do not think thatthe cases cited to us in argument, or the case cited in the judg-ment, apply to the circumstances of the present action. Theplaintiff is the creditor of the first defendant, and his debt issecured by a bond and mortgage over the four lands in question.The bond made on the 31st October, 1874, was not registered till17th February, 1892. I do not think that registration plays anypart^in this case. Those lands on the 13th February, 1892, wereseized in execution of a money judgment obtained by one ManaAssena Pulle against the present first defendant in the DistrictCourt of Kurun^gala.
Plaintiff offered an objection to the seizure and sale of theselands as a mortgagee. The sale was stayed pending inquiryinto this objection. By section 246, Civil Procedure Code, it isenacted, “ If the Court is satisfied that the property is subject to a“ mortgage or lien in favour of some person not in possession, and“ thinks fit to continue the sequestration or seizure, it may do so“ subject to such mortgage or lien.” The Court, after inquiry, madean order that the lands should be sold subject to the presentplaintiff’s mortgage bond. It seems to me that that orderimpressed plaintiff’s mortgage on those lands, and, whether or notit is expressed in the Fiscal’s conveyance, the purchaser took jbherosubject to the mortgage so impressed upon them.
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The impression of course disappears with the debt? and if theplaintiff has a debt subsisting under his mortgage bond it seemsto me hfe is clearly entitled to have it satisfied by the sale of theproperty which, by the order of the Court, was sold subject to hismortgage. I would set aside the judgment and remit the caseto the Court to ascertain what, if anything, is due by way of principalor interest under the first defendant’s mortgage bond. If any-thing is found to be due, it must be declared liable out of the landsin question. The successful appellant will have his costs.
July 2 and 7.Wcthbbs, J
MUTTIAH CHETTY v. DE SILLVA et al