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Present: Mr. Justice Wendt.
SALOHAMV v. WEERASEKERA et al.
C. R., Matara, 4,268.
Mortgage debt—Seizure—Procedure—Seizure and sale of land mortgaged—Civil Procedure Code, s. 229.
S was the usufructuary mortgagee of a certain property. On awrit of execution issued against him the Fiscal purported to selland convey to the purchaser H the property itself; the mortgagedebt itself was not seized in the manner required by the Code, andthere was no mention of it in the Fiscal's" conveyance,—
Held, by Wendt J., that the right to recover the mortgage debt 'did not pass by the sale; and that the heirs of 8 were entitled to bepaid the amount of the said debt in preference to the heirs of H.
Wendt J.—The seizure of a mortgage debt should be effected inthe manner prescribed by section 229 of the Civil Procedure Code.Bastiampittai v. Anapillat1 followed.
HIS was an interpleader action. Don Luis Abeyadeera Weera-warna, who was the owner of 13/ 16th shares of a land,
mortgaged it by bond No. 141 dated September 8, 1849, to Salamande Silva Abeyaratne Weerasekera. On a writ issued against the saidSalaman de Silva Abeyaratne Weerasekera, in case No. 24,512 of theVillage Tribunal of Wellaboda pattu, the said shares were sold onthe footing that he was the owner thereof, and were purchased byHendrick Dias Abeyaratne Weerasekera, who obtained Fiscal’stransfer No. 4,013/24,512 dated August 31, 1893, and who i9 repre-sented in this action by the 9th, 10th, and 11th defendants.The heirs of the said Don Luis Abeyadeera Weerawarna, by deedNo. 22,672 dated July 14, 1873, sold the said property to Sellahewa-gey Don Dines, who sold it to the plaintiff. The plaintiff broughtthe amount due on the said mortgage bond No. 141 dated September8, 1849, into Court, and prayed for a decision whether the heirs(1st to 8th defendants) of the said mortgagee, or the heirs (9th to 11thdefendants) of the said Fiscal’s purchaser, were entitled to the money.
The Commissioner (G. F. Plant, Esq.) held that the heirs of themortgagee (1st to 8th defendants) were entitled to the money. Hisjudgment was as follows:—
“ The issue in this case is one of law. The facts are admitted.Pokunebodawatte belonged to Don Luis. He mortgaged it withSalaman; in 1849 Salaman possessed. In 1893, under writ againsthim, the land was sold by the Fiscal. The purchasers obtaineda Fiscal’s conveyance and entered into possession. Meanwhile the
» (1901) 5 N. L. R. 165.
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heirs of Don Luis sold the property to Don Dines* who sold to iQQg.plaintiff. Plaintiff now tenders into Court the amount of the February 24.mortgage debt, and prays that the mortgage be redeemed.
“ The question is, Are Salaman’s heirs entitled to the mortgagemoney, or are the heirs of the purchaser at Fiscal’s sale entitled?
Mr. Jayatilaka appears for Salaman's heirs. Mr. Keuneman appearsfor the heirs of the purchaser under writ.
“ Mr. Keuneman argues that the Fiscal sold all Salaman’s title tothe land. Salaman was entitled as mortgagee, therefore the Fiscal’stransfer conveyed Salaman’s rights as mortgagee.
“ Mr. Jayatilaka urges that Salaman’s rights as mortgagee couldonly be sold by regular procedure under section 229 of the Code;the mortgaged debt must be seized in the manner laid down in thatsection. That was not done. Therefore the mortgage debt did notpass at the Fiscal’s sale. Mr. Jayatilaka quoted the decision reportedin 2 Browne 117-124. I think that decision governs this case, andMr. Jayatilaka’s clients are bound to succeed.
“ The land itself was seized and sold; there was no mention of themortgage debt. In fact, at the time it was thought that the landwas Salaman’s absolute property, and it was not known (it had beenforgotten between 1849 and 1893) that Salaman held simply asusufructuary mortgagee.
“ There was a previous action (C. R., 1,993)'about this land. The1present plaintiff’s vendor sued the purchasers at the Fiscal’s sale'to be put in possession; he was held to have title, the purchasersat the Fiscal’s sale against Salaman being held to have kept themortgage alive. It may seem bard that the purchasers under writshould fail to prove title, it being held that they had possessed asmortgagees (see C. R., 1,993), and that now they should fail to getthe mortgage debt paid to them as they had not purchased themortgaged But I think the law is clear, and the Fiscal’s sale didnot convey the mortgage debt. The mortgage -debt will thereforebe paid to the heirs of Salaman, defendants 1st to 8th.
“As to costs, defendants 9th, 10th, and 11th must pay the costsOf this action.”
The 9th, 10th, and 11th defendants appealed.
Tambayah, for the appellants.
A. St. V. Jayewardene, for the 1st to 8th defendants, respondents.
Cut. adv. vult.
February 24, 1908. Wendt J.—
This is an interpleader action, the subject of contest being theamount of a usufructuary mortgage debt admittedly due by theplaintiff, who is the present owner of the mortgaged land. Thecompetition is between the first eight defendants, who are the legal
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1998. representatives of the mortgagee, and the 9th, 10th, and 11thFebruary 24. (iefendants, who ore the legal representatives of a person who hadWendt J. purchased in execution the interest of the mortgage. The solequestion is, whether the execution sale entitled the purchaser torecover the debt in the same manner that the execution-debtor(the original mortgagee) might have recovered it? To answer thatquestion we must examine the instrument by which the mortgagee’srights are said to have been transferred. It is entitled " Fiscal’sconveyance to purchaser after confirmation of sale by Court,” andis in the form No. 56 prescribed by section 286 of the Civil ProcedureCode for sales of immovable property. It conveys “ all that 13/16thsof one-fifth of Pokunewatte ” within certain boundaries. That is themortgaged land. There is no mention whatever of the mortgage.
In fact the sale was carried out in the belief, and on the footing,that the execution-debtor was the owner of the land of which he ■had so long been in possession. The mortgage, which was datedforty-four years earlier (1849), had been forgotten. The form ofseizure for a debt was not adopted, but, instead, the Fiscal followedthe procedure prescribed in the case of immovable property. Underthese circumstances the, learned Commissioner held that the rightto recover the mortgaged, debt did not pass by the sale, and I thinkhe was right. In Alisandry Appu v. Mariahamy 1 Lawrie andWithers JJ. held that a mortgagee’s interest in the mortgage camewithin the description in section 229 of the Code of a ” debt notsecured by a negotiable instrument,” and that its seizure should beeffected in manner laid down by that section. In Karuppen Chetty v.Silva, 2 where the sale of the lessor's interest in a lease was concerned,
I followed the analogy of that case, which is binding on me. InBaaiianpiUai v. Anapillai,3 a case strictly analogous to the present,an action was brought to recover a mortgage debt by a party whohad purchased the mortgagee's interest in execution, and it appearedthat tbe Fiscal had seized and sold the mortgaged land itself. Tinswas held fatal to plaintiff’s action. That was practically a decision ofthree Judges, and is binding on me. I was invited by Mr. Tambayah,for the appellant, to consider the propriety of that decision, and toreserve the question for a Full Court, on the ground that the authorityof Mahadea Dubey v. Bhola Natt Dicket, 4 upon which Bonser C.J.founded his judgment, had been undermined, if not destroyed, bydecisions in other Indian cases and of the Privy Council. I am not,however, convinced that this is so, or that the alleged present viewof the Indian Courts would be applicable to our own Mortgage Lawand Code of Civil Procedure. And it is not desirable that anyuncertainty should exist in so frequently-recurnng a point ofpractice.
i (1896) 1 App. Court Reports 115 (note). 3 (1901) 5. N. L. R. 165; 2 Browne, 117..2 (1906) 1 App. Court Reports 112.4 I- l>. R. 5 All. 86.
It may or may not be the ease that (as Mr. Jayewardene wasdisposed to admit) the Fiscal's sale conveyed to the purchaser theright to possess the land, so long as the debt remained unpaid,though not a right to recover the debt lor himself. At any rate,the purchaser, who has had over fourteen years' possession for theBs. 76 which he paid, does not appear to have made a bad bargain.
I dismiss the appeal with costs.
SALOHAMY v. WEERASEKERA et al