015-NLR-NLR-V-14-ROWEL-et-al-v.-JAYAWARDENE.pdf
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Present: Middleton J. and Wood Renton J.July 28,4910
ROWEL et ai v. JAYAWARDENE.
81—Z). C. Ckilaw, 4,138.
furnished to the Registrar of Lands by primary mortgagee and-puisne incumbrancer—Action by primary mortgagee on the mortgagebond with notice to the puisne incumbrancer—Hypothecary decreebinding on the puisne incumbrancer—Civil Procedure Code, ss. 237,613, 644.
Whore the primary mortgagee and puisne incumbrancer hadboth failed to comply with the provisions of section 644 of i ho CivilProcedure Code as to furnishing an- address to the Registrar ofLands for notice, and where the primary mortgagee brought- ahypothecary action on the bond and gave the puisne incumbrancerfull notice of the action and the puisne incumbrancer failed tointervene in the action,—
Held, that the puisne incumbrancer was bound by the hypothe-cary decree.
HHHE facts of this case are fully set out in the following judgmentof the District Judge (T. W. Roberts, Esq.) :—
“ The property in dispute was mortgaged by its owner in 1900.In March, 1906, the defendant, an unsecured creditor, seized theproperty in execution of his money decree and himself bought it atthe sale held on June 23, 1906.
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July 28,ifno « On July 5, 1906, the mortgagee put his bond of 1900 in suit,Rowel v. in case Mo. 3,571, D. C. Chilaw.: In execution under writ issued inJaydwardcne that case the property was sold to the plaintiff in 3,571 in August,1906, and he subsequently conveyed it to the present plaintiffs.
“The question is whether defendant is bound by the decree incase No. 3,571. It was contended for plaintiffs (1) that the defend-ant’s purchase was ^explicitly subject to the mortgage of 1900 ; (2)that the seizure in defendant’s interest of March, 1906, was not adeed of incumbrance, and the date at which the owner and mort-gagor was divested of and the defendant invested with the titleto the property was subsequent to the institution of the mortgageaction, and could not on the principle of Us pendens affect theinterests of the parties to that action.
“ The first contention is categorically negatived by the decisionreported on the 139th page of the New Law Reports, vol. XII.
“The second is partly a misrepresentation, in that the seizurewas certainly an act creating certain rights in the property. Assuch it was capable of being, and was in fact, registered. As suchit was a deed of incumbrance.
■ *“ Even if that were not so, the sale occurred before the mortgage
action was instituted, and the decision in S. C. 305, C. R. Balapitiya,is precisely in point on the facts with the present case, and is againstthe plaintiffs’ contention.
'■ The decisions are numerous and particularly decisive, that theleaving of his address with the Registrar of Lands is a conditionprecedent which a primary mortgagee must fulfil before his decreecan without notice bind puisne incumbrancers, it is admitted thatthe plaintiff left no address. He omitted, that is to say, to dowhat it lay on him to do, viz., to give the purchaser at the sale ondefendant’s .writ the opportunity of notifying him. of his purchaseor subsequent incumbrance. It follows that the argument wasunsound in its.denial of the necessity of notice.-
" The next point was the sufficiency of the notice given. Noticewas in fact given to the defendant at the time of, the issue of summonsin D. C. 3,571. 'The plaintiff is uncertain whether a copy of thesummons accompanied that notice or not, and asked the Court topresume that it did from the fact of the motion made in that case(P I). The presumption does not arise that the proctor for plaintiffin 3,571 did what he ought to have done ; the record does notmention any issue of any copy of the summons, .and the presumptionis rather the other way. The fact of issue of a copy of the summonsto defendant is a fact the burden of proving which lay on theplaintiffs. So it has been ruled expressly in exactly similar circum-stances (3 Balasingham 227).
“ l conclude that no copy of the summons jri 3,571 was attachedto the notice .therein sent to defendant under section 643. The; notice was therefore formally defective, but I should perhaps have
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been prepared to disregard the formal defect if the notice had been July 28* impsubstantially equivalent to the summons copy in its statement of Bowel v.the material facts. The notice has been filed by the defendant J^yawardene(D 4),1 and it gives most of the required information. But it lacksthe force of a summons, in that it is not signed by any officer of theCourt, and, what is more important, it does not give the date ofthe case.
“ I would reluctantly hold, therefore, that the defendant is notbound by the decree in the case No. 3,571. The case must bedismissed, and with costs.**
The plaintiffs appealed.
Sampayo, K.C. (with him Wadsworth), for the appellants.—At thedate of the commencement of the action the first defendantwas only a purchaser at a Fiscal’s sale ; he had not got a Fiscal’stransfer ; he was therefore not a person entitled to be either madea party to the mortgage action or to be noticed. The Fiscal’s salewas merely an inchoate sale.
Sections 643 and 644 do not apply to either the primary mortgageeor to the first defendant, as neither of them had furnished theRegistrar of Lands with an address as required by those sections.
The ordinary law of mortgage must apply to this case. Voet(20, 4, 2, Berwick, 2nd ed., p. 375) indicates the class of personswho should be joined in hypothecary actions. Moreover, the firstdefendant cannot be said to be a puisne incumbrancer. [MiddletonJ.—Cannot an incumbrance be created by registered judgment ?]
No ; an incumbrance can be created only by a deed. [WoodRenton J.—Is not a seizure an incumbrance ?] It is, but it is
1 D 4.To Francis Wijeyesinha Jayawardene of Madampe,
Chilaw, July 7, 1906.
Sib,—You are hereby informed that Muttu Kuna Pana Palaninppa Chettvof Madampe has instituted an action, No.-3,571, for the recovery ofRs. 2,922.50, being amount due to him on bonds Nos. 3.954 dated September17,1900, and 3,625 dated January 31, 1900. The property mortgaged on thesaid bonds is the land called Wuduwalevukani, situate at Chilaw, which waspurchased by you in execution of writ in D. C. 788 K.
Yours, &c..,
C. Munasinha,
Proctor for M. K. P. Palaniappa Chotty.
The first defendant sent the following reply to the above letter :—
Madampe, N. W. P.,
P 2.July 13, 1906.
Sib,—With reference to your letter dated the 7th instant, informing me ofthe institution of action No. 3,571, D. C. Chilaw,-J have to give you noticethat I do not admit the plaintiff's claim therein stated in its entirety, and amprepared to contest any action in which I am a party..
Yours, &c.,
Fbancis W. Jayawaupkne^
pJ. N, A 93348 (11/49}
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Jithj2S, 1010 not an incumbrance within the meaning of section 644. TheBowel v. registration of seizure is a special provision of the Code (sectionJayawardene 237), and its purpose is only to invalidate subsequent alienations.
The cases relied on by the District Judge refer to encumbrancesby deed.
A. St, V, Jayewardene, for the respondent.—The term “ puisneincumbrancer ” has no technical meaning. Evans v. Evans,' Packv. Tarplcy.2 “Deed ” need not necessarily be one which is executedriotarially ; the term includes any instrument creating an incum-brance. See (1909) 12 N, L. R. 281; see Registration Ordinance,No. 3 of 1907, section 3 ; Ordinance No. 14 of 1891, section 16.The old hypothecary actions have been superseded by the Code ;the old procedure would not’ apply now. See Punchi Kira v.Sangu* [Middleton J.—May not the primary mbrtgagee givenotice in any way he pleases ?1 The puisne incumbrancer cannotbe bound except by a notice as provided by section 644.[Middleton J.—What is the object, of the notice ? U is to enablethe puisne incumbrancer to come, into the action. If he gets theinformation by getting the summons or other notice, what moredoes he want ?]
Sampayo, K.C., in reply.—The definition of “deed” in OrdinanceNo. 3 of 1907 is not its legal or ordinary meaning ; it is a definitionfor the purpose of that Ordinance. If seizure is to be deemed anencumbrance, to whom is notice to be given ? Is it to the execution-creditor ? Documents D 4 and P 2 clearly show that the firstdefendant had full notice of the action. He would therefore bebound by the hypothecary decree.
Cur. advt vult.
July 28, 1910. Middleton J.—
This is a case in which at the argument we were rather led awayfrom the substance of the matter to a critical consideration of itsshadow. The question as raised before us was whether a judgmentcreditor on a money decree, who had seized and registered hisseizure of property under section 237 of the Civil Procedure Code,was a puisne incumbrancer under section 643 of the Civil ProcedureCode, and as such entitled to notice of proceedings in a hypothecaryaction by a mortgagee of the same property in order to bind theproperty by a mortgage decree. The question is an interesting one,but it requires no decision at our hands here.
Assuming that the first defendant was a puisne incumbrancer, itseems to me he received the notice D 4 sent to him by the mortgagee’sproctor on July 7, 1906, and by his letter in reply (P 2) of July 13,1906, was fully aware of the hypothecary action, its number, the• (ISoZ) 22 L. J. ch. 7*0.* (7*39) 9 A. <1- E, 408.
:i (juou) 4 .y. l. y. 42.
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Court in which it was brought, and its claimed amount. The object -July 2S*1010of notice under sections 643 and 644 is to enable the puisne incum- Middletonbrancer to intervene in the hypothecary action and to support his Tinterests therein, and here the first defendant had ample informationBowdv.
to enable him to do so, but failed to avail himself of it. It is true Jayawardenethat here no copy of the summons was attached, and that themortgagee did not furnish an address to the Registrar of Lands towhich the alleged puisne incumbrancer could have notified him inwriting, according to section 643, that he had registered his seizeror (as the learned counsel for the first defendant argues it to be) hisdeed of incumbrance. At the same time it does not appear that thefirst defendant gave any address for service to the-Registrar-General.
His alleged incumbrance, however, became known to the mortgagee,and he got a clear and distinct notice of the. hypothecary action3,571 in time to have intervened had he chosen to do so.
In Peiris v. Weerasinghe,1 Lascelles A.C.J. and I held that a strictcompliance with the procedure laid down in the first proviso tosection 644 was a condition precedent to the mortgagee comingwithin the benefit of the provisions of section 644. Here themortgagee had not complied with the proviso as to furnishing anaddress for notice, and it is clear also, I think, that the allegedpuisne incumbrancer failed to do the same. Both have ignored thedetails of the section, but notice was in fact given which, if thesections are ignored, would be the obvious course to obtain a bindingmortgage decree.
I think, therefore, that the appeal must succeed, and thejudgment of the District Court be set aside and judgment enteredfor the plaintiffs in the terms of the order proposed by my brotherWood Renton.
Wood Renton J.—
I think it is unnecessary for us to decide the interesting questionraised at the argument of this appeal as to whether or not a personwho has registered a seizure of property in execution of a decreemay be regarded as a puisne incumbrancer so'as to entitle him tonotice, under the provisions of section 643 of the Civil ProcedureCode, of any action brought by a prior mortgagee in respect of theproperty forming the subject of the seizure. Assuming that thefirst defendant-respondent was a puisne imcumbrancer within themeaning of that section, I am clearly of opinion that in view of theterms of the letter D 4 dated July 7, 1906, from the prior mortgagee'sproctor, and of the reply to that letter (P 2) dated July 13, 1906,by the first defendant-respondent himself, he cannot be allowed toallege in this action that he had not notice of the proceedings. Iwould, therefore, set aside the decree under appeal and declareW907) 9 N. L: if. 359,
July 28,1910 that the plaintiffs-appellants are entitled to the land and premisesWood described in the plaint, and that the first defendant-respondent shouldRenton j. ejected therefrom and the appellants put in possession thereofBowel v. forthwith. The first defendant-respondent must pay to the plaintitf-Jayaward*ne appellants the damages agreed on at the trial, namely, Rs. 25 amonth from October 17,1906, till the land and premises are restoredto the appellants’ possession. The appellants are entitled to allcosts of this appeal and of the action.
Appeal allowed.