026-NLR-NLR-V-36-PUNCHI-APPUHAMY-v.-DHARMARATNE.pdf
113
Punchi Appuhaiiyy.v. Qharmaratne.
1934Present: MacdonelF C.J.«and Drieberg J.
PUNCHI APPUHAMY v. DHARMAHATNE
283—D. C. Kurunegala, 14,736
Seizure Return of writ—Death of judgment~debtor—Sole in execution—
Validity of seizure—Mortgage action—Death of mortgagee—Sale ofmortgaged property—Rights of purchaser—Equitable relief—OrdinanceNo. 21 of 1927, s. 11.
Where, on a writ issued in execution of a decree for money, the Fiscalseized property and returned the writ to Court as the charges for adver-tising the sale had not been paid, and where 'the Court reissued the writon fresh stamps,—
Held, that the seizure already made remained effective and was notdeprived of its validity by the return of the writ.
The purchaser of property sold in execution of a decree in a mortgageaction to which the legal representative of a deceased mortgagor hadnot been made a party is entitled to equitable relief under section 11 ofthe Mortgage Ordinance, No. 21 of 1927, in an. action brought by the heirsof the mortgagor to vindicate title to the land.
T
HE plaintiff instituted this action for a declaration of title to twoallotments of land as the sole heir of his mother, Kiri Menika.
The defendants claimed a half share on Fiscal’s transfer of February 16,1927, granted as purchasers in execution of a money decree in D. C.,Kurunegala, No. 9,849, entered by consent against Kiri Menika, Pinhamy(her husband), and Ranhamy. On February 20, 1924, application for writwas made and writ issued on February 21, 1924. The Fiscal seized a halfshare of the two lands on March 21, 1924, and returned the writ to Courtas the advertising charges for the publication of the sale had not been paid.Meanwhile, Kiri Menika died on May 26, 1924. Thereafter the writ wasreissued and a half share of the lands was sold to the defendants on»August 11, 1926. It was contended that as Kiri Menika died before thewrit was fully executed, his legal representative should have been madea respondent to the proceedings. The other half share was bought bythe defendants on a conveyance of April 2, 1926, by the Commissionerappointed to carry out an order to sell issued in execution of a mortgagedecree entered in D. C. Colombo, 12,833, against Kiri Menika, her husbandPinhamy, and Ranhamy. On the returnable day of summons to theplaint filed in the action, it was reported that Kiri Menika was dead. Theiother two defendants consented to judgment. Decree was entered inthe action but no person was appointed to represent the estate of KiritMenika before the property was sold to the defendants.
The learned District Judge gave judgment for the plaintiff.
Croos da Brera for defendants, appellant.—As regards half share of theland in dispute it was seized during the lifetime of the judgment-debtor,Kiri Menika. The property was therefore in custodia legis. No freshseizure was necessary. The original seizure was never withdrawn(Wijewardene v. Schubert1; Peria Carpen Chatty v. Sekappa Chetty *;
* (J906) 10 N. L. R. 90.a (19101 8 Citrr. L. R. 189.
36/11
114MACDONELL C.J.—Punchi Appuhamy v. Dharmaratne.
Andris Appu v. Kolande Asari1. It is not necessary to substitute the*legal representative of the deceased debtor (Goonetilleke v. Jayasekere *)nor is a fresh seizure necessary when a writ is reissued. Even if there isa fresh seizure it will not affect the validity of the first seizure (Perera v.Mudalali*). The Fiscal's transfer therefore conveys good title to thedefendants.
As regards the other half, although the defendant, Kiri Menika, was deadthe subsequent appointment of a legal representative has retrospectiveeffect. The plaintiff was present at the sale and did not claim or object.Minority will not prevent an estoppel from operating. In any event thedefendants are entitled to ask under section 11 of the Mortgage Ordinance,1927, for a hypothecary charge in respect of the purchase money. Thepayment of a mortgage is utilis impensa and a person who does this isentitled to compensation and the jus retentionis. De Silva v. Shaik Ali4;Ukku v. Bodiac; Mohamado v. Silva9; Seadoris v. De Silva It isinequitable that the defendants should be referred to a separate action.
Rajapakse for plaintiff, respondent.—Section 341 of the Code makes itimperative that the legal representative of the deceased judgment-debtorshould be substituted before further proceedings are taken in executionof the decree. The authorities cited apply only where there has been areissue of writ. The journal entry of May 8, 1925, shows that thejudgment-creditor applied for a fresh issue of writ. A fresh seizure wastherefore necessary. The old seizure must be taken to have abated.
In the mortgage action there was no valid decree as the defendant wasdead at the time the decree was entered. The defendants should bringa fresh action regarding the hypothecary charge claimed by them. It isnot competent to the Court to make any order in this case. The paymentof a mortgage is not an improvement to property. The Roman-Dutchlaw allowed compensation only in respect of physical improvements.Counsel referred to the observations of Pereira J. in Muttiah Chetty v.Letchimanen Chetty
Croos da Brera, in reply.
August 22, 1934. Macdonell C.J.—
This is an appeal against a decree setting aside two separate sales tothe defendants of certain two undivided half shares in a piece of land..The original owner was one Kiri Menika, who married Pinhamy, andwhose son is the plaintiff-respondent in this case, a minor, suing by oneRanhamy, his guardian ad litem. These same three persons, Kiri Menika,Pinhamy, her husband, and Ranhamy were sued in D. C. Kurunegala,No. 9,849, a money case. It was filed on December 11, 1923, judgmentwas entered on January 21, 1924, and writ issued on February 21, 1924,under which writ there was a seizure of land owned by Kiri Menika onMarch 11, 1924, this being the important date in the case. The land soseized, a half interest, was sold under the writ on August 11, 1926, andthere was a Fiscal’s transfer of February 16, 1927, in favour of defendants,
1 (1916) 19 N. L. B. 225.3(1902) 6 N. L. B. 45.
(2931) 32 N. L. R. 227.3(1906) 3 Bala. R. 248.
3 (1926) 27 N. L. R. 483.•(1914) 2 Matara Cases 127.
(1895) 1 N. L. R. 228.3(1913) 6 Bal. Notes ofCases 3.
MACDONELL ■ C J.—Punchi Appuhamy v. Dharmaratne.
Hi
the present appellants. Meanwhile Kiri Menika herself had died onMay 26, 1924. It will be observed, then, that she died after the seizureof March 11, 1924, but some two years before the sale in August, 1926.It was argued therefore for the plaintiff-respondent that the sale wasbad.
The circumstances of the seizure are not as dear as could be. wished.The relevant journal entries are as follows: —
February 21, 1924.—Writ issued with copy of decree.
June 6, 1924.—Fiscal sends writ unexecuted as the plaintiff failed – toadvance Gazette advertisement charges to publish the sale of theproperty.
May 8, 1925.—Proctors for plaintiff apply for an issue of writ againstdefendant’s properties. Allowed on fresh stamps.
May 11, 1925.—Writ reissued on fresh Stamps for August 11, 1925.
It was argued that in view of the Fiscal’s return, namely, that he sentback the writ unexecuted, there was no seizure on the writ issued Febru-ary 21, 1924. But this seems incorrect. The property seems to havebeen seized although the complete effect of the seizure could not result,since in the absence of stamps for advertising the sale no sale could takeplace, but there does seem to have been a seizure under the appropriatesection 237. It was then argued to us that the seizure must be held tohave been withdrawn as proved by the application on May 8, 1925, for“ an issue of writ ”. But the entry on May 11, 1925, speaking of the,“ reissue ” of the writ is against this contention. I repeat, the journalentries are not as clear on the point as could have been wished, but they;seem to show that there was a seizure on February 21, 1924, and thatthat seizure continued and was not at any time “ removed Therespondent then sought to rely on section 341, “If the judgment-debtordies before the decree has been fully executed the holder of the decreemay apply to the Court which passed it, by petition, to which the legalrepresentative of the deceased should be made respondent, to executethe same against the legal representative of the deceased ”, and it wasargued that as confessedly no such petition had been presented andas the legal representative of the deceased, Kiri Menika, had never beenmade a party to these proceedings, the seizure ceased to be effective andthe sale of August 11, 1926, was of no effect.' But this argument seemsto overlook the effect of Goonatileke v. Jayasekere *, a two-Judge decision.That decision which is binding on us is indistinguishable in its facts fromthat now before us. In that case there was a seizure under writ duringthe lifetime of the judgment-debtor but thereafter the Fiscal returnedthe writ unexecuted because advertisement charges had not been paid,so sale could not be effected. The writ was reissued during the lifetimeof the judgment-debtor—here the reissue was after her death—and thesale took place, as in the present appeal, after the death of the judgment-debtor. Goonatileke v. Jayasekere (supra) is a direct deduction from aninterpretation of section 341 given in Omer v. Fernando *, which may therehave been obiter but which is binding on us since the case in 32 N. L. R. 227Patheruppillai v. Kandappen * was relied on by the learned District Judge 3
» 32 N. L. R. 227.* 16 N. L R. 135.
3 16 N. L. R. 298.
i 16
MACDONELL C.J.—Punchi Appuhamy v. Dharmaratne.
where it was held that when there has been seizure, writ returned to Courtand reissued, and then after the death of the judgment-debtor a sale, such asale is bad, but it conflicts with the decision in 32 N. L. R. 227, and alsowith the three-Judge decision in Perera v. Mudalali the effect of whichis that a seizure once effected subsists unless it can be shown to have beenremoved.
It was very candidly conceded that if the seizure under the originalwrit of February 21, 1924, continued, then the plaintiff-respondentwould be bound by the sale under that seizure of August 11, 1926. Thejournal entries seem to show, as has been said, that the sale was in conse-quence of the original seizure of February 21, 1924, that that seizure wasnever “ removed ”, section 237, and that the writ issued on May 11, 1925,was a reissue of the original writ, and part therefore of the original andsubsisting seizure. If that is so, then the decree appealed from so far asit affects the half of this property sold under the money decree in D. C.Kurunegala, 9,849, must be set aside and the appeal allowed with regardto that half of the property.
The facts with regard to the other half of the property in question ar«as follows:—There was a mortgage bond of February 8, 1923, executed'by the same persons, Kiri Menika, her husband Pinhamy, and Ranhamy*which was put in suit by the mortgagees in D. C. Colombo, 12,833, anaction instituted on July 21, 1924, at which date Kiri Menika was dead;she had died about two months before, on May 26, 1924. All partiessdem to have overlooked this fact. Decree followed in this mortgagesuit on September 9, 1924, and there was a sale by public auction of theremaining one half of this land on January 9, 1926. The defendants-appellants bought that property for Rs. 785 and thereafter received atransfer dated April 26, 1926. Now it is quite clear that this mortgagedecree and consequent sale could not have affected Kiri Menika who wasdead before the mortgage action was instituted. It therefore cannotaffect the plaintiff-respondent, her minor child, who claims under her.The decree, therefore, so far as it says that the defendants, purchasers ofthis property on sale after the mortgage decree, cannot hold the propertyso bought and sold as against a claimant representing the- interests ofKiri Menika, is perfectly correct. The defendants-appellants howeverstated in answer in this case that they had paid this sum of Rs. 785, andraised in the trial below the following issue:—“In the event of the saleheld under D. C. Colombo, 12,833, being declared void, are the defendantsentitled to a hypothecary charge over a half share of the land sold underthe decree? ” The answer to this in the decree appealed from is asfollows:—“I do not think this issue arises in this case. It is an issue ofwhich this Court can give no relief in the present action. The issue israised in view of section 11 of Ordinance No. 21 of 1927. It is for thedefendants to claim the benefit of this section at the proper time and in theproper action. I will only say that the judgment in. this case is not toprejudice any such claim With all respect I do not understand thisdecision. The issue does arise in this case, and was categorically formu-lated, and it is one upon which the Court can give relief in this case, and ifthe present judgment refusing the defendants relief on this issue were to
1 27 N. L. B. 463.
MACDONELL. C.J.—Punchi Appuhamy v. Dharmaratue.
117
pass unchallenged, I do not see how the defendants could again raise it ona later occasion, it would be res judicata against them. After argument onthis matter it became clear that the defendants-appellants were entitledto relief. The position was this. The minor plaintiff-respondent asksto have this portion of his mother Kiri Menika’s estate handed back tohim notwithstanding the conveyance of sale on April 26, 1926. What isthis property of his mother's which he claims? The property which atthe time of her death was subject to a mortgage. The original amountof that mortgage was considerably more than Rs. 785, but for simplicity'ssake one may describe it as a mortgage of Rs. 785 because that was thetotal amount which the defendants on their purchase of April, 1926, paid.If the plaintiff-respondent is to receive back this land clear of mortgageto the extent of Rs. 785 he will be getting back, it seems to me, morethan the person under whom he claims possessed or was entitled to.His claim, properly analysed, is to the piece of land encumbered to thatextent. He asks that he should be given that piece of land unencumberedby that sum, but as I understood the argument for him, it was concededthat this was a claim which was not open to him to make. He whoseeks equity must do equity, and to give back to the plaintiff-respondentthis piece of land unencumbered, or to put it in another way, to deny todefendants their right to be compensated to the amount of the mortgagewhich they have paid off would, it seems to me, be a very plain infringe-ment of that salutary rule. We have the authority of Nicholas de Silva v.Shaik AliL, to the effect that money advances to discharge a mortgageshould be treated as an utilis impensa. Even if there is little or no directauthority in the Roman-Dutch authorities for this, still the right of abona fide possessor evicted to be compensated for money expended onthe property of the real owner is an undoubted right in Roman-Dutchlaw, and in principle should include the right to compensation for amortgage discharged; indeed, it is difficult to state it so as not to includethat right. The South African cases on the point are referred to in Lee(3rd ed., pp. 443-444), some of them being in reports not available to us.
There is also the Mortgage Ordinance, No. 2i of 1927, to which referencehas been made, section 11, sub-sections (1) and (2), of which read asfollows: —
11.(1) On a sale of mortgaged land in a hypothecary action, every
mortgage wholly or in part paid off out of the purchase moneyshall, unless a contrary intention is expressed in the conveyanceto the purchaser, be deemed to be kept on foot for the protectionof the purchaser and his successors in title against incumbrances,estates, and interests to which the mortgage in suit in the hypo-thecary action had priority, and the purchaser and his successorsin title shall, accordingly, be entitled to a hypothecary chargeon the purchase land for a sum (which shall not bear interest)equal to the amount of the purchase 'money or the amount ofthe mortgage money due under the mortgage so paid off at thedate of the sale, whichever amount shall be the less, and havingthe same priority as had the mortgage so paid off at the date ofthe payment of the purchase money.
1 1 .V. T, ft 008
118
MACDONELL C.J.—Punchi Appuhamy v. Dharmaratne.
This section applies to sales effected before or after the commence-ment of this Ordinance, but shall not affect any title acquiredfor valuable consideration before the commencement of thisOrdinance.
Here was a mortgage “ in part paid off out of the purchase money ”.Then in the words of the section the mortgage “ shall be deemed to be kepton foot for the protection of the purchaser and his successors in titleagainst incumbrances, estates, and interests to which the mortgage in suitin the hypothecary action had priority ”. The mortgage in D. C. Colombo,12,833, clearly had priority to the estate and interests of the minor plain tiff -respondent, for suppose there had been no such hypothecary action andsuppose that the mother, Kiri Menika, had died possessed of this property,her son, the plaintiff-respondent, would have had to have taken itencumbered with the mortgage to which she was a party. Then in thewords of the section, the person who had paid off part of the mortgageout of the purchase money, here the defendants-appellants, is “ entitledto a hypothecary charge on the purchased land for a sum (which shall notbear interest) equal to the amount of the purchase money or the amountof the mortgage money due under the mortgage so paid off at the date ofthe sale, whichever amount shall be the less, and having the same priorityas had the mortgage so paid off at the date of the payment of the purchasemoney ”, which in this case seems to have been April 26, 1926. Thedefendants-appellants seem undoubtedly entitled to a decree in the termsof the section just quoted, and the only difficulty is the form which thatdecree should take. A similar point seems to have come before Daltonand Akbar JJ., in Girigoris v. Amolis', where, however, the amountclaimable by the evicted purchaser was small, only Rs. 50. The orderthere made was that the parties claiming to set aside the transfer bysale were entitled to do so “ subject, however, to the payment of. Rs. 50 by them …. Defendants will pay Rs. 50 to theplaintiff ”.
For the appellants it was contended that the decree should take theform of giving them the right to retain this land until their charge on thesame, Rs. 785 was paid. But I doubt that section 11 of Ordinance No. 21of 1927 contemplates that course.
I would propose then the following order, on the whole appeal:—Thedecree, so far as it refers to the lands sold under the decree in D. C.Kurunegala, No. 9,849, and described in the schedule to the plaint in thataction, should be set aside and that portion of the action against defend-ants should stand dismissed, and the decree so far as it affects the portionof land sold under the decree in D. C. Colombo, No. 12,833, should alsobe set aside and the following substituted for it:—It is ordered anddecreed that the first plaintiff be declared entitled to a half share of thelands sold under the decree in D. C. Colombo, No. 12,833, and describedin the schedule to the plaint in that action and to possession of the saidhalf share, but that the defendant-appellants be entitled to the hypothe-cary charge on the said lands created by the bond sued on in D. C.Colombo, No. 12,833, for the sum of Rs. 785.
i 31 N. L. R. 481.
DRIEBERG J.—Punchi Appuhamy v. Dharmaratne.110
The order in the decree awarding the plaintiff damages must be set aside.The proper course for plaintiff to have adopted was to have tendered theamount paid by the defendants for the land, before plaintiff broughtaction. The defendant-appellants having substantially succeeded shouldhave their costs here and below.
Drieberg J.—
The plaintiff, who is a minor, brought this action for a declaration oftitle to two allotments of land which he claimed as the sole heir of hismother, Kiri Menika. The defendants claim title to the lands by purchaseat two sales in execution against Kiri Menika. The question at issue isone of title only; the trial Judge found in favour of the plaintiff, and thedefendants have appealed.
The defendants claim a half share on Fiscal’s Transfer D 4 of February16, 1927, granted to them as purchasers at a sale in execution of a moneydecree in D. C. Kurunegala, No. 9,849, entered by consent against KiriMenika, her husband, and another. On February 20, 1924, application forwrit was allowed and writ issued on March 21,1924. The Fiscal seized a halfshare of these two lands on March 11, 1924, but on June 6, 1924, returnedthe writ to the Court “ unexecuted ”, so it is recorded in the journalentry, as the execution-creditor had not paid in advance the cost ofpublishing the sale in the Government Gazette. It was wrong to describethe writ as unexecuted. Seizure, though a preliminary step to sale,is equally a step taken in execution of a decree. A Fiscal executes a writfor the recovery of money by demand on the executor-debtor, and if thedemand is not complied with by seizure and, if necessary, by sale—section 226 of the Civil Procedure Code. The entry of June 6, 1924.should have been that the Fiscal returned the writ not fully executed.Kiri Menika died on May 26, 1924, after the seizure and before the returrof the writ to Court on June 6 ; the proceedings continued without a legalrepresentative of Kiri Menika being appointed. In view of the objectioitaken to the sale, it is necessary to state in detail the subsequent,steps.. (
On May 8, 1925, the plaintiff applied for an issue of writ and this wasallowed on the execution-creditor supplying fresh stamps. This wa«?right, for the failure to proceed with the execution of the writ was due t- ■the default of the execution-creditor and not to one of the causes state* iin part 2 of schedule B of the Stamp Ordinance, No. 22 of 1909.
Writ was issued returnable on August 11, 1925. It is not possibi?without the record to know precisely the progress made in the executvof this writ. There was a claim to property seized, but some proper *y
was sold and Rs. 5 recovered. On August 19, 1925, the Fiscal ret*
the writ, reporting the sale I have referred to ; of the other prop^riyseized on July 4 and 5, 1925, he said some were claimed and t**<» salestayed on order of Court. Whether the lands in question were seizedagain on July 4 and 5, 1925, we do not know. On February 18, 1926,writ was reissued on fresh stamps, returnable on May 20, 1926 ; therewas a claim and on May 21, 1926, the Fiscal returned the writ unexecuted
120DRIEBERG J.—Punchi Appuhamy v. Dharmaratne.
as the sale was stayed by Court owing to the claim. On July 13, 1926,writ was reissued and a half share of these lands was sold on August 11,1926, for Rs. 400 and bought by the defendants.
It is contended for the plaintiff that the case falls within section 341 ofthe Civil Procedure Code and that as the judgment-debtor, Kiri Menika,died before the decree was fully executed the execution-creditor shouldhave applied to execute the decree against her legal representative makinghim a respondent to the application. The plaintiff contends that allproceedings in execution after the death of Kiri Menika are null and voidand that title did not pass to the-defendants under the Fiscal's transfer.This contention cannot succeed. It was held in Goonetileke v. Jaya-sekere that section 341 has no application where property has beenseized under a writ before the death of the execution-debtor and was underattachment at his death. The plaintiff sought to meet this by arguingthat the seizure on March 'll, 1924, terminated when the Fiscal returnedthe writ on June 6, 1924, and that the reissue of the writ with fresh stampswas a fresh mandate to the Fiscal, that the seizure under the first issue ofwrit had ceased to be effective, that a fresh seizure was necessary and asthis would be after the death of Kiri Menika the appointment of a legalrepresentative was necessary. But these are all matters on which thereis clear authority. There are no such implications in the words " re-issueof writ on fresh stamps A writ may be issued as often as is necessary.Where it is reissued on fresh stamps it is not a new mandate vesting theFiscal with a new authority, terminating his powers under the previouswrit and depriving what was partly done under it of validity. A secondor subsequent issue of writ has to bear stamps unless the previous writwas returned for one of the reasons stated in the Stamp Ordinance, butthis is for purely fiscal purposes and the effect of the writ is the samewhether it be issued without stamps or the Court directs that it shouldbear stamps.
That no fresh seizure was needed in this case is clear on the authorityof Andris Appu v. Kolande Asari2 (Full Bench). There the Fiscal hadseized property but had not advertised it for sale ; writ was reissuedafter the returnable day of the previous writ, and the property was sold.Wood Renton C. J. said:“ The third question submitted to us is,
' whether a seizure effected under one writ can be availed of for the purposeof another writ, or a reissued writ, or a writ for the execution of whichthe time has been extended, or is a fresh seizure necessary in any or all ofsuch cases This question is one of great difficulty. But I have, withconsiderable hesitation, come to the conclusion that the answer to itshould be that a fresh seizure is not necessary in all cases. In the circum-stances before us, the writ was not recalled or withdrawn in the ordinarysense of either of these terms, and there can be no ground for saying thatIt was abandoned
Even if there was a fresh seizure under a writ reissued subsequent tothe writ on which the property was first seized, that would not affect thecontinuing validity of the first seizure, Peria Carpen Chetty v. SekappaChetty.* The case of Patherupillai v. Kandappen *, relied on by the trial
(1932) 32 N. L. Jt. 227.3 (1910) 2 Curr. L. R. 1*2.
(1916) 19 N. L. R. 225.4 (1913) 16 N. L. R. 293.
DRIEBERG J.—Punchi Appuhamy v. Dharmaratne.121
Judge, is a judgment of a single Judge. These two cases were consideredby the Full Bench in Andris Appu v. Kolande Asari (supra) and thedecision in Peria Carpen Chetty v. Sekappa Chetty (supra), a judgment oftwo Judges was followed, see Wood Renton C.J. on page 227, andSampayo J. on page 233.
The answer to the question how long a seizure remains effective is tobe found in sections 238 and 239 of the Code. If the seizure is registered,any private alienation thereafter of the property by the execution-debtoris void as against all claims enforceable under the seizure, and this dis-ability of the execution-debtor continues until the removal of the seizure.Section 239 provides for the Court withdrawing the seizure on the appli-cation of any person interested in the property, and this can be done ifthe amount of the decree, including all execution charges, is paid intoCourt or if satisfaction of the decree is otherwise made through the Court,or if the decree be reversed. The sale by the Fiscal on August 11, 1926,must be regarded as made under the seizure of March 11, 1924, and asthe execution-debtor died when the property was under attachment onthat seizure the execution-creditors were entitled to have the propertysold without making the legal representative of the execution-debtor aparty to the proceedings. The defendants have, therefore, title to thishalf share.
The other half share was bought by the defendants on a conveyance D 2of April 2, 1926, by the Commissioner appointed to carry out an order tosell issued in execution of a mortgage decree entered in D. C. Colombo,No. 12,833, against Kiri Menika, her husband Pinhamy and Ranhamy. Theplaint was filed on July 21, 1924, against these three persons, who wereall parties to the bond, after the death cf Kiri Menika. On the returnableday of summons, September 9, 1924, Pinhamy and Ranhamy appearedand consented to judgment. It was reported that Kiri Menika, the firstdefendant, was dead. The only further note in the journal is that writwas not to issue for two months, but apparently decree was entered andnearly a year later, on August 20, 1925, the plaintiff’s proctor appliedfor execution of the decree by the issue of an order for the sale of themortgaged property ; this was allowed, but before the returnable datethe plaintiff’s proctor moved for a notice on Pinhamy to show cause whyhe should not be appointed to represent the estate of Kiri Menika.Pinhamy was absent on notice being served, and the order appointingher legal representative was made absolute on November 2, 1925. Sofar as I can see, the property was sold on the order for sale issued onAugust 26, 1925. The mortgage decree was of no effect and did not bindthe estate of Kiri Menika. In cases falling within the proviso to section642 of the Civil Procedure Code, when the property mortgaged is underthe value of Rs. 1,000, it is necessary to procure the appointment of arepresentative before the action is brought.
The defendants, therefore, have not acquired title to this half share.The defendants in their answer asked that the action be dismissed or, inthe alternative, that they be declared entitled to a hypothecary chargeover this half share for Rs. 805 ; this claim was for the relief granted bysection 11 of the Mortgage Ordinance, No. 21 of 1927, The learned
122
GARVIN S.P.J.—Gunadasa v. Appuhaviy.
District Judge did not give the defendants this relief as he was of opinionthat it should be claimed in a separate action. J^do not think this isright, and it appears to me that the defendants are entitled to ask for thisrelief in this action. The defendants, I think, are entitled to this reliefunder the Ordinance, apart from any rights which they may have if thedischarge of the mortgage be regarded as an utilis impensa.
Set aside.