( 43 )
** decreed that the property mortgaged to the plaintiff, &c., be“ declared bound and executable,” &c.
The defendants appealed.
Maartenz, for appellants.—The irregularity in procedure in thiscase is fatal. No fepresentative has been appointed to represent theestate of the deceased mortgagor as required by section 642 of theCivil Procedure Code. The action is not maintainable, becausethe mortgagee plaintiff has failed to apply to the Court to appointan administrator to the estate of the deceased mortgagor, nor hasthe Court been moved to appoint some person to represent theestate for the purpose of the present action. The case of KannappaPattiriani v. Canapathi Pulle (D. C-, Batt-icaloa, 1,798), decidedon 28th November, 1898, is on all fours with the present case.
H. Jayaward'ena, for respondent.—The appointment of arepresentative is not absolutely necessary. It is a matter left tothe discretion of the Court. Silva v. Fernando (3 N. L. R. IS).No objection was taken in the Court below to the want of repre-sentation; and Mr. Justice Lawbie pointed out in Mudiansc v.Mudiansc (2 N. L. R. 91) that where the defendants succeededto their father’s estate, on his death they were liable for theirfather’s debt so far as his estate went, but their own land couldnot be sold for such debt. His lordship therefore deleted somuch of the decree passed in that case as made the defendantsliable personally and limited the decree to a hypothecary decree.
In Adagappa Clictty v. Becbcc the practice of suing the heirs ofa deceased debtor was recognized (6 S. C. C. 13).
Section 642 of the Civil Procedure Code has been construed bythe Supreme Court to mean that the old remedy of suing the heirsin possession still exists. That, section only makes it optionaleither to sue the heirs in possession or to get a person appointed torepresent the estate of the deceased mortgagor. [Boxser, C.J.—Under the old law two actions were competent: a personal actionand the actio quasi Scrviana, commonly called the hypothecaryaction, and both actions might be joined in the same libel.] Beforebringing the hypothecary action against a third party a decreemust be obtained against the mortgagor. Section 642 says ” the
Court mayappoint some personSo that it is not
obligatory to have one appointed before instituting the action.
Boxser. C.J.—
This is a troublesome case, owing to the way in which it has beenpresented in the Court below, and also owing to the careless wayin which the decree of tire Court was drawn up.
July 17.
( 44 )
July 17.
Bonskk, C.J.
It appears that a man called Hawadiya was the owner of n certainfield, and on. or about the 18th December, 1878, he mortgagedit to the plaintiff for Its. 140, mortgaging to him “ 14 lahas and lmeasure paddy sowing extent out of the upper part of Paduunge-kumbura ” to secure that amount, and it was agreed that theplaintiff should take the produce in lieu of interest. Many yearsago Hawadiya died intestate leaving three children by the first bed(the first, second, and third defendants) and one son, Kuda, by asecond marriage, who was dead at the date of the action. Noadministration was taken out to the estate of the mortgagor, andthe plaintiff asserted that he had ever since his mortgage been inpossession of the mortgaged property and taking the produce. Thiswas contested by the defendants, but the Commissioner found thatissue in favour of the plaintiff, «nd held that the mortgage bondwas not prescribed as the defendants contended. The fourth andfifth defendants were joined as having intruded on this land andprevented the plaintiff from realizing the produce. The statementof the plaintiff as regards them is this: “ That the fourth and“ fifth defendants are joined in this action, inasmuch as they“ wrongfully prevented the plaintiff from cultivating the said land“ during the yala season of 1897, and still continued to cultivate“ and appropriate the produce thereof to the damage of the plaintiff“ of Es. 50.” It appears to be the fact that the fourth and fifthdefendants claim to be owners of this land, and had a conveyancedated in 1875 from the children of the original mortgagor. Theplaintiff was aware of this sale when he filed his plaint, and headmitted, when he gave his evidence, that he had taken a mortgagefrom these defendants of this very property for Rs. 50, and hefurther admitted that the money paid by the fourth and fifthdefendants for this land was used by the- heirs of the deceasedmortgagor in payment of the debt due to himself from the mort-gagor, so that it was not very ingenuous of him. to make it appearin the plaint that they were strangers who had come in andinterfered with his possession.
The second and third defendants are dead. The decree, disre-garding that fact, orders them to pay the mortgage money, andalso makes them pay damages of Rs. 50, which were awardedagainst the fourth and fifth defendants for their wrongful act ininterfering with the plaintiff’s possession. The decree appears tobe hopelessly wrong. It also appeal’s on the face of the decreethat there are persons not parties to the action who are interestedin the land, for it directs the sale of the mortgaged property,“ reserving the rights of those having an interest in the property,but who are not parties to the action.”
( 45 )
Objection lias been taken that the suit is improperly constituted,and that the plaintiff has not complied with the procedure laid downin chapter XLV1. of the Civil Procedure Code, and in my opinionthat objection is a good one. Chapter XLVI. is not very skilfullydrawn, but 1 think if it is carefully read its meaning is reasonablyclear. At the time of the passing of this Code the law was thatthe mortgagee was entitled to two actions upon the mortgagebond, viz., a personal action against the mortgagor for the debt;and the actio qimsi Scrviana, commonly called an hypothecaryaction, against the land to have the land sold for the purpose ofrealizing the debt; and when the mortgagor was in possession ofthe mortgaged property he might bring both the personal and thehypothecary action simultaneously and join them in one libel.If the property was in the possession of a third person—if, forinstance, the mortgagor had sold the land—then the mortgagee hadthe choice of suing the debtor by the personal action, or theperson in possession of the property by the hypothecary action,and he could sue them in any order he pleased. But chapter XLYI.plainly intended to alter that porcedure. It took away the rightof suing a third person in possession of the property by thehypothecary action without joining the mortgagor, for it providedthat in every hypothecary action the mortgagor must be joined asa defendant, whether he is in possession or not of the propertymortgaged at the time of the action. That seems to me to be themeaning of section 640, although, if construed literally, it wouldseem to require every mortgagee to sue his mortgagor whether hewished to recover the debt or not.
Then section 641 provides for the case where the mortgagor isdead, declaring that in such a case the mortgagee shall be entitledto sue the executor or administrator of the mortgagor. Thatsection seems to me clearly to point to the fact that these sectionsare dealing with hypothecary actions, that is to say. actions whichhave for their object to realize the mortgage by a. sale of the land,for it does not require a statutory enactment to inform us that, ina case of a personal action against a mortgagor, a mortgagee isentitled to sue the mortgagor's executor or administrator after hisdeath.
Section 642 goes on to provide that, where there is no executoror administrator, the mortgagee must have an administratorappointed before lie can commence his action, if the propertymortgaged is of the value of Its. 1,000 or upwards, and it goes onto provide that, where the property mortgaged is less than Its. 1,000in value and there is no executor or administrator, it shall not benecessary for ihe mortgagee to get an administrator appointed,
July 17
Bosses, C.J.
( 46 )
1900.but that he may apply to the Court to appoint some one to repre-
Jiily 17.tiellt the deceased mortgagor’s estate for the purposes of the action;
Bonsrr.C.J. and that in that case, if the Court thinks it desirable that such aperson, should be appointed and appoints him, any decree made inthe hypothecary action is to bind the mortgagor’s estate inthe same manner as, and in all respects ns, if a duly constitutedadministrator of the deceased mortgagor were a party. It was notobligatory on the Court to appoint such a person. It may well bethat the Court may decline and say that, although the mortgagedproperty is of very small value, yet the whole estate is of suchvalue that it is desirable to have an administrator appointed.
It was suggested that the discretion left- to the Court to appointa person to represent the mortgagor was intended to allow theheirs of the deceased who had adiated the inheritance to be suedns representing the deceased’s estate for the purposes of such anaction; but it seems to me that that is rather a farfetched sugges-tion and does not fit in with the general policy of these sections,and I see that in a case reported in 6 S. G. C. 13 my prede-cessor held that when a person dies intestate an administratormust be appointed, and he doubted whether an inestate’s heirscould properly be sued, except in so far as they may haverendered themselves liable as executors de son tort by inter-meddling with the estate. I share the same doubt. Howeverthat may be, an hypothecary action is not properly constitutedunless the mortgagor, if he is alive, is a party. If he is dead hisexecutor or administrator must be made a party, or some personappointed by the Court to represent his estate.
The record and decree are in a state of such confusion in thepresent case that, with every desire to save expense to the parties,I cannot see my way through the labyrinth.
The appeal is allowed, but this will not prevent the mortgageefrom bringing a properly constituted suit.
I wish to add that the present case is on all fours with the case ofKammppa Pattiriani v. CanaiKithi Pulle (D. C., Batticaloa, L,798).which was decided by my brother Withers and myself on the8th November, 1898, and I. follow that decision.