015-NLR-NLR-V-38-NAGOOR-PITCHE-v.-KAWALA-UMMA.pdf
Nagoor Pitche v. Katoala Umma.
71
1936
Present; Garvin S.P.J. and Maartensz A. J.
NAGOOR PITCHE v. KAWALA UMMA.
23—D. C. Colombo, 35,054.
Mortgage action—Sale of property under decree—Application by purchaser toremove person in possession—Proof that the respondent is a personbound by the decree—Ordinance No. 21 of 1927, s. 12.
In an application under section 12 of the Mortgage Ordinance by apurchaser of property sold urder a mortgagevdecree for directions as tothe delivery of the property to him and the removal of the respondentwho was in possession, it is essential that the petitioner should showthat the respondent is bound by the decree, within the meaning of tbe
section.
72GARVIN S.P.J.—NaX/do'r Pitche v. Kawala Umma. ■
^ PPEAL from an order of the District Judge of Colombo.
1 Hayley, K.C. (with him H. V. Pkrera, Canakeratne, and Ferdinands),for petitioner* appellant.
Keuneman, for the respondent.
Cur. adv. vult.
May 21, 1934. Garvin S.P.J.—
■ At a sale in execution of a hypothecary decree entered in this case theappellant became the purchaser. It was provided by the decree that.'the Fiscal should give delivery of possession. Presumably, in pursuanceof this provision, the purchaser applied to the Court and obtained awrit authorizing the Fiscal to place him in possession. The Fiscal reportedthat he had given possession to the purchaser. Shortly afterwards thepurchaser applied to the Court stating that he was unable to obtain•effective possession of the premises and that the respondent was inpossession and claiming to do so in her own right. Thereupon the peti-tioner applied again to the Court for a special order directing the Fiscalto remove the respondent from the premises. There is nothing in theway in which the petition is drawn up to show under what provisionof the law it was made. But it is quite clear from the arguments thathave taken place before us, and also from the proceedings in the Courtbelow and in particular the order of the learned District Judge that thiswas an application under section 12 of Ordinance No. 21 of 1927, bywhich the Court is empowered among other things, to give directionsand orders as to delivery to the purchaser and as to the removal of anyperson bound by the decree from the property.
It is essential, therefore, for the petitioner to show that the respondentwas a person bound by the decree before he can be granted an orderdirecting that she be removed. Now reference was made in the courseof the argument to the provisions of sections 6 and 10 of the Ordinance.The first section is intended to indicate to a mortgagor those who arenecessary parties to the action and to inform him that there are certainclasses of persons who under special circumstances need not be jo±ncu.Section 10 then proceeds to state that when the provisions of this Ordi-nance have been complied with the conveyance issued to the purchasershall operate to convey the property sold “ for such estate and interesttherein as is the subject of the mortgage freed from the interests, mortgagesand rights of every party to the action and every person who by sub-section (2) of section 6 is declared not to be a necessary party to the action ”.In effect the decree not only bound those parties ordinarily bound by thedecree but even those who by sub-section (2) were declared not to benecessary parties to the action. If, therefore, the purchaser is to succeedhe must show that the respondent comes within one or other of theseclasses. The respondent was not a party to the action nor am I awareof any circumstances which would justify one in holding her boundby the judgment and she certainly does not come within sub-section (2) of.section 6. The claim she made was the right to retain property whichthe law gives to an improver. It has been urged that certain documentstendered in evidence indicated that in point of fact she had no such
73
GARVIN S.P.J.—Nagoor Pitche v. Kawala Umma.
right, and, in the alternative, if she had any right it was a right tocompensation based on a parol agreement and was not the jus retentionisof the Common law. The question for the decision of the Court was notwhether or not the right which the respondent asserted was well foundedbut whether she can be said to be a .person bound by the decree in thecase. In so far therefore as it is alleged that she had no right, I thinkthat was a matter which was outside the scope of this section. As tothe argument that, the respondent’s position is akin to that of a puisneencumbrancer the material before us does not justify us in coming to anysuch conclusion.
A definite claim is to be found in the answer filed by her in caseNo. 36,200, a copy of which was filed of record. After stating that herhusband Thana Mohamadu was prior to 1928 the tenant of the premisesin question, it proceeds to state that he built on and otherwise effectedimprovements to the premises and that it was agreed that he shouldpossess the premises, and that on the valuation of the improvementsSeenia Kadiripillai Marikar, the owner, should execute a transfer of thepremises in favour of Thana Mohamadu for a sum of Rs. 22,000. Thecase for the respondent would seem to be that there was an agreementby Kadiripillai Marikar undertaking to sell the premises to her husbandfor a stated price and that pending the completion of the transfer hewent on to make certain repairs and improvements. If this be in accord-ance with fact, it is impossible to say that the respondent was merelyin the position of a person who has effected some improvements uponan express agreement by which he was to be paid for the improvementsand nothing more. In the result, therefore, we have here a claim by therespondent to retain these premises adversely to the mortgagor and thoseclaiming under him. There is nothing in the evidence to justify one inholding that this right is one which he derived from the mortgagor or intreating the respondent as occupying a position akin to that of a puisneencumbrancer. It was for the Court to determine whether or not theperson claiming to remain in possession was a person bound by the decree.I can see no alternative on the evidence before the Court but to hold thatshe was not such a person. It was pointed out that the District Judgehad expressed himself in a manner which might be taken to mean that asbetween the purchaser and the respondent it had been definitely foundthat the respondent was entitled to the right she claimed. I think it isright to say that if that was the intention of the District Judge then Ithink he has travelled beyond the limits of the section. The questionin this proceeding under section 12 is not whether the respondent had ajus retentionis, but merely, as I said before to determine whether she isa person bound by the mortgage decree entered in the action. The onlyquestion on which any determination of the learned District Judge isbinding upon the petitioner is this, that she was not a person who wasbound by the decree in the mortgage action within the meaning and forthe purpose of section 12. The respective rights of the parties must beleft to be determined in appropriate proceedings. For these reasonsI would dismiss the appeal with costs.
Maahtensz A.J.—I agree.
Appeal dismissed.