050-NLR-NLR-V-05-SAMARASINHA-v.-KURUKULASURIYA.pdf
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1900.
November 30.
1901.
IFebruary 14.
SAMARASINHA v. KURUKULASURIYA.
D. C., Oalle, 5,349.
Res judicata—Action by mortgagee against the executor of mortgagor—Judg-ment against executor for money due—Fresh action against devisees ofmortgagor's last will for mortgage decree—Plea of defendant.
Specific devisees under a will are privies to judgments affecting theland devised to them and pronounced in an action to which the executorof the will was a party.
As, under section 641 of the Civil Procedure Code, an executor is theonly necessary party to an action to realise the mortgage, a judgmentrefusing a mortgage decree against the executor of the mortgage-debtormay be pleaded as res judicata in a hypothecary action brought by themortgagee against the devisees of the last will of the debtor.
O
NE Weerasuriya and his wife made a last will in 1887, be-queathing certain property to certain persons to be enjoyed
by them after the life interest granted to the surviving spouse hadfallen in. After the death of his wife, Weerasuriya hypothecated
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by his bond, dated 19th July, 1892,to plaintiff the property1900.
which formed the subject of the deviseas aforesaid. On the 1st November 30.
July, 1893, the mortgagor died. Inthe following year, the1901,
mortgagee raised the action No. 2,848 against the executor of the February^ 14.deceased debtor praying that the money which belonged to himbe made executable for the payment of the debt. The DistrictJudge refused a mortgage decree on the ground that the mort-gagor had only a life interest in theproperty mortgaged, and
entered in favour of the plaintiff a money decree condemningthe executor to pay the amount claimed out of the assets of themortgagor’s estate.
On appeal, the Supreme Court affirmed this decision.
Some time afterwards, when the devisees came into possessionof the property bequeathed to them, the plaintiff instituted thepresent suit against them, praying that the half share of thedeceased debtor in the property in question be bound and heldexecutable for the mortgage debt.
The devisees pleaded, inter alia, the judgment against theirtestator’s executor in bar of the plaintiff’s claim. On the DistrictJudge over-ruling this plea, the plaintiff appealed.
The case was argued in appeal before the Chief Justice and Mr.
Justice Lawrie on the 30th November, 1900, and at their requestre-argued on the 14th February, 1901.
Wendt, for appellant.—The suit No. 2,848 was brought byplaintiff against Samaraweera. to whom probate of Weerasuriya’swill had been granted by the District Court on 24th November,
1893. Plaintiff’s prayer for a mortgage decree in that case wasdismissed. 4s the executor represented all interests underthe will, the decree in that case was binding on the plaintiff,although the present defendants were not parties to it. Thatdecree is res judicata. Till the validity of this plea is settled.itis needless to consider the right of the surviving spouse to alienateproperty devised under the joint will.
Vau Langenberg, for respondent, heardcontra.—[Bonser,
C.J.—Under sections 640 and 641 of the Civil Procedure Code,was not the executor the only necessary party to the suitNo. 2,848?] Yes.
14th February, 1901. Bonser, C.J.—
This is an action brought by the mortgagee of one Weerasuriya.The mortgage is dated the 19th July, 1892, whereby the mort-gagor hypothecated certain immovable property to secure themortgage deed and interest.
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1900.
November 30.
1901.
February 14.Bonser, C..J.
The mortgagor died on the 1st July. 1893. He had, by awill made jointly with his spouse, who predeceased him, devisedthis property to the defendants in this action, to be enjoyed bythem after the life interest given to the surviving spouse.
Probate to the joint will was granted to the executor thereinnamed. The mortgage was subsequent to the death of the mort-gagor’s spouse.
In 1894, the mortgagee brought an action in the District Courtof Galle against the executor to realize the mortgage, and haveit declared that the moiety which belonged to the mortgagor inthis property was bound and executable for the payment of themortgage debt. The District Judge held that, as the mortgagorhad only a life interest in the property mortgaged, the plaintiffwas not entitled to a mortgage decree, but only to a moneydecree to be paid by the defendants out of the assets of the Mort-gagor’s intestate estate.
A decree was drawn up in accordance with that judgmentgiving the mortgagee a simple money decree. He appealedagainst that to this Court, and the decree was affirmed withslight variations, which it is unnecessary to mention. Not con-tent with this decision, the mortgagee sought to execute hisdecree as against this property and got the Fiscal to seize it.The specific devisees having by that time been put in possession ofthe property, came forward and claimed it. This was in August,1898. Thereupon the mortgagee consented to the property beingreleased by the Fiscal.
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This action was commenced on the 27th January, 1899. andis brought against the specific devisees under the joint will. Itrecites the mortgage and the money decree, and seeks a declara-tion against them that the half share of the mortgaged propertyis bound and executable for the mortgage debt. It is in the formof what is known as an hypothecary action—-an action broughtagainst a person (other than the mortgagor) who is in possession ofthe mortgaged property seeking to realize the mortgage as againsthim. They have pleaded the decree in the former action, andthey sav that the plaintiff, the mortgagee, is concluded by thatdecree, and cannot again i-aise the question as to the validity ofthe mortgage, and that inasmuch as it was held in that case thatthe mortgagor had no title to mortgage, that concludes the ques-tion once and for all.
I am of opinion that that contention should be upheld. At thetime the action was brought the only necessary party to theaction to realize the mortgage under sections 640 and 641 of theCivil Procedure Code was the executor of the mortgagor. He
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represented all interests under the will,( and, in my opinion, the
decree was binding upon the mortgagee, and he is not at liberty November SO.
to litigate this question anew.1901'
February 14.
Browne, A.J.—I agree., Bonser.C.J.
Lawbie, J.—•
Tt may be that something might be said against the decision otthe District Court of Galle, aiArmed by this Court.
It may be that, if the case had been fully argued., and if recentdecisions to the Court of Cape Colony had been cited, the deci-sion might have been different, but it is res judicata between theparties and their privies.
I have no hesitation in holding that the special devisees undera will are privies to judgments affecting the land devised, pro-nounced in actions to which the executor of the wall is a party,either plaintiff or defendant.
I would uphold the plea of res judicata.