SOERTSZ A.J.—Pedrick v. Kitchil.
Present: Koch J. and Soertsz A.J.
PEDRICK v. KITCHIL163—D. C. Kandy, 43,549.
Contribution among co-debtors—Payment of mortgage debt by one of the mort-gagors—Sale of land to third party—Right to contribution from transferee—Certification of payment of mortgage decree—Civil Procedure Code, s. 349.
Plaintiff and three others mortgaged a land to secure a sum of moneyborrowed by them. During the currency of the mortgage some of theco-mortgagors transferred their shares in the land to the defendant’sintestate.
When the bond was put in suit, the plaintiff paid the debt and suedthe defendant, as administratrix-transferee of the land, for a proportionateshare of the debt.
Held, that the plaintiff had no right of contribution against thedefendant’s intestate.
Section 349 of the Civil Procedure Code regarding the certificationof payment out of Court applies to mortgage decrees.
^ PPEAL from a judgment of the District Judge of Kandy.
Gratiaen, for plaintiff, appellant.
H. V. Perera, for defendant, respondent.
Cur. adv. vult.
August 21, 1935. Soertsz A.J.—,
The plaintiff-appellant brought this action to recover from thedefendant in her capacity of administratrix of the estate of her deceasedhusband, Awana Meera Saibo, the sum of Rs. 619.50, with legal interestand costs. His case was that he and the vendors to the defendant’shusband had borrowed a certain sum of money upon a mortgage bondby which they had hypothecated the land referred to in this case withone Jayasinghe who had assigned the bond to one de La Motte. Theplaintiff’s co-mortgagors had, while the mortgage was current, soldtheir interests to Awana Meera Saibo. The assignee of the mortgagebond put it in suit in case No. 40,056, D. C., Kandy, against the fourmortgagors or their representatives against the original mortgagee,Jayasinghe, and against Awana Meera Saibo. When that case came totrial, the first defendant in that case, namely, the present plaintiff, andthe defendant who had been substituted in place of the original mort-gagee, Jayasinghe, were present. The other defendants were absent.The case was settled by those defendants who were present consentingto judgment in favour of the plaintiff in that case for a sum of Rs. 1,150,with legal interest from date of action without costs. Writ was not toissue for two months. As far as Awana Meera Saibo was concernedhe had died in the course of the mortgage action, and his heirs with thepresent defendant as guardian ad litem had been substituted defendants,and in the decree that was entered upon the settlement those substituted
SOERTSZ A.J.—Pedrick v. Kitchil.
■defendants were expressly declared to be liable as “ substituted transfereesonly ” and “ only for the purpose of binding the lands transferred andcovered by the bonds”. The absent defendants were made liable by thedecree for the payment of the amount agreed upon along with the presentplaintiff and the defendant who had been substituted in place of theoriginal mortgagee, Jayasinghe. After the time stipulated in the courseof the settlement of the mortgage bond action had elapsed, the plaintiffin that action took out writ. Thereupon the present plaintiff paid himthe full amount due and there is document P 1, a Kachcheri receipt, toattest that payment. The plaintiff claims that as the land mortgagedbelonged to him and Awana Meera Saibo in the proportions of 53/96thsand 43/96ths respectively, the defendant as administratrix of the estateof Meera Saibo is liable to pay him the sum claimed as the 43,/96th shareof the amount paid by him to the judgment-creditor.
The case went to trial on the following issues : —
Did the plaintiff pay Rs. 1,383 in satisfaction of the decree in D. C.,
Kandy, No. 40,056 ?
(a) Did payment by the plaintiff constitute an impensa utilis,
so far as the premises mortgaged are concerned ?
(b) If so, is the defendant liable to make good a proportionateshare ?
(It was admitted that there was no decree against the defendant forRs. 1,383.)
Is plaintiff entitled to claim any contribution from the defendant ?
I cannot help saying that the case was most inadequately presentedin the trial Court and the learned Judge disposed of it really on consi-deration of the question raised in the first issue only, although he made apassing reference to the question involved in issue (2) (a) and (2) (b) ;he held that as the provisions of section 349 of the Civil Procedure Codehad not been complied with, he was debarred from holding that therehad been a payment or adjustment, although as a matter of fact, he wassatisfied that that was the case. He held that section 349 as interpretedin the Full Bench case, Pitche Thamby v. Mohamadu Khan1 made thecertificate under section 349 “ the sole admissible evidence of thesatisfaction of the decree ”. Counsel for the appellant contends that theprinciple laid, down by the Full Bench in the case just referred to isapplicable only to money decrees pure and simple and not to such adecree as was entered in the mortgage bond case in this instance, wherein addition to ordering the payment of a sum of money as against somedefendants, it made other defendants liable to the extent that theirland was executable under the decree. In such a case, he says, where theexecutability of the land under the decree is obviated and an adjustmenteffected by the payment of the amount decreed to the parties to whom pay-ment is due, no certificate is necessary. For this contention he relies onthe case of Sankaran Nambiar v. Kanara Kurup' where it was held thatsection 258 which is the Indian Civil Procedure Code equivalent of section349 of our Code, refers only to the execution of decrees under which moneyis payable and is not applicable to decrees for possession of immovable1 9 S.G. C. 187.1 22 Madras 182.
SOERTSZ A.J.—Pedrick v. Kitchil.
property. I do not think a case such as this which is a money decreeand a decree affecting immovable property rolled into one was in thecontemplation of the Bench that decided that case. A decree such aswas entered in the mortgage action in this instance is the result of ourpeculiar mortgage. But apart from that the decision in that case wasbased upon a consideration of section 258 of the Indian Civil ProcedureCode read along with the preceding section. Section 257 enacts that" all money payable under a decree shall be paid as follows : namely,fa) into the Court whose duty it is to execute the decree ; (b) out of Courtto the decree holder; or (c) otherwise as the Court which made thedecree directs ”. Section 257a lays down that “ any agreement togive time for the satisfaction of a judgment debt, shall be void unlessfor consideration, &c.” The Judges in that case pointedly say “ Theopening words of the section (i.e., 258) ‘ If any money payable under adecree is paid out of Court,’ evidently refer back to section 257, clause (b) ;and the next words of section 258 ‘ or the decree is otherwise adjusted.,in whole or in part, &c.’ refer back to the other clauses of sections 257and 257a. But sections 257 and 257a deal only with decrees for money.Moreover in the second line of section 258 the words * the decree ’ clearlyrefer to the decree mentioned in the preceding line which is a decreeunder which money is payable ”. Now, in our Civil Procedure Code,section 349 is not preceded by any provision such as is contained insections 257 and 257a of the Indian Code, and there does not seem to beany justification for restricting the scope of the local section in the mannercontended for by counsel for the appellant.
In my opinion, therefore, according to the Ceylon Code any adjustmentof the decree has to be certified, and the certification is made the onlyproof of payment or adjustment that any Court may recognize. In thisconnection it is worthy of note that while section 258 of the Indian Codeprovides "unless such a payment or adjustment has been certified asaforesaid, it shall not be recognized as payment or adjustment of thedecree by any Court executing the decree”. Our section 349 provides“ unless such payment or adjustment …. by any Court ”. Sothat the trial Judge in this case, though not the Judge executing thedecree, could not recognize the payment or adjustment relied upon.Counsel for the appellant next contended that no objection had beentaken when P 1 was tendered in evidence and that, having been admittedwithout objection, it constituted proof of the payment. But the answerto that is that though P 1 was evidence of payment, it was evidence thatthe Court could not recognize. Counsel for the appellant also submittedthat in the circumstances of this case, the plaintiff should be given anopportunity to have payment or adjustment certified as that was thecourse adopted in the Full Bench case. That is a plea I would entertainif I felt confident it would serve a useful purpose. But, in my opinion, itwill do the plaintiff no good to have the case sent back for him to certifyadjustment and then proceed against the. defendant. The plaintiff’sfull case, as it was thought fit to present it, was before the trial Court. Itis not as if the first issue was tried as a preliminary issue. It must beassumed that all the material which the plaintiff relied upon for all theissues was before the Court.
SOERTSZ A.J.—Pedrick v. Kitchil.
What then is the position as disclosed by this material ? The plaintiffhad paid a debt which he and certain other defendants had been decreedliable to pay. Expressly, it was not a debt for which Meera Saibo waaalso liable. In other words Meera Saibo was not a co-debtor and,therefore, no cause of action accrued to the plaintiff when he paid thatdebt, to call upon Meera Saibo to contribute on the footing that a debtfor which he too was liable had been paid. Viewed in. that way theplaintiff’s action must, therefore, fail. It would have been different ifthe plaintiff was suing the other defendants who had been expresslydecreed liable along with him for the mortgage debt. Can the defendantbe made liable on any other principle ? It is said that she is liableinasmuch as her intestate was a co-owner along with the plaintiff of aland burdened with a mortgage and that when the plaintiff paid off thatmortgage he effected an “ utilis impensa ” in regard to the land and is,therefore, entitled to be compensated for it. It is true that in Nicholasde Silva v. Shaik Ali1 and in Ukku v. Bodia ’ it was held that the paymentof a mortgage was an “utilis impensa”. In the circumstances of thosecases it may well be so, but it is more than doubtful whether the paymentby a person of a debt due by him can be regarded as an “ utilis impensa ”so far as a person who had no part or lot in such a debt is concerned. Theplaintiff in paying the debt was fulfilling an obligation which devolvedon him under the decree. It is the fact that by so doing, he, incidentally,benefited the defendant, but that was just the defendant’s good fortune.If those parties whose obligation it was to pay the debt failed or refusedto pay the debt, then the defendant’s interests in the .land were liableto be sold, but that was the result of those interests having beenhypothecated to secure a debt that was not the debt of the defendant’sestate. Fortunately, when one of those bound to pay the debt, paid it,the defendant escaped from that risk. It was contended that whenAwana Meera Saibo bought these interests he must have paid a purchaseprice assessed with the existence of the mortgage well in view and thatnow he gets the interests free from the mortgage at the same price. That,however, is a matter that cannot be taken into consideration in casesof this nature in determining the rights and liabilities of parties. Suchenterprises as these are often beset with pitfalls, and it should not be amatter for complaint when in some instances there are compensatingwindfalls. The case of Ukku v. Bodia (supra) relied upon is clearly distin-guishable. There a co-heir paid off in full the amount due by him andall his co-heirs, his brothers and sisters, who inherited the land subjectto a mortgage created over it by their father. In the present case, asalready pointed out, Awana Meera Saibo got the land subject to themortgage, but he was not liable for the debt in any other way.
In my opinion, in view of all this, to send the case back for the purposeindicated will only expose the plaintiff to further litigation and expenditurewithout any resulting benefit. I would, therefore, dismiss the appealwith costs.
Koch J.—I agree.
1 1 X. L. R. 288.
– G N.L. R. 45.
PEDRICK v. KITCHIL