SEBASTIAN PERERA v. JUSEY PERERA

006-NLR-NLR-V-14-SEBASTIAN-PERERA-v.-JUSEY-PERERA.pdf


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Present: Hutchinson C.J. and Wood Renton J.SEBASTIAN PERERA v. JUSEY PERERA.
197, D. C., Negombo, 7,956.
Action by secondary mortgagee instituted after primary mortgagee hadinstituted action on his bond—Fiscal'8 sale under secondary mort•gagee's decree pending primary mortgagee's action—Sale void asagainst primary mortgagee—Civil Procedure Code, ss. 643 and 644.
After the primary mortgagee had instituted an action on hisbond, the secondary mortgagee instituted an action on his bond andobtained a decree and bought the land himself, and got his Fiscal'stransfer registered before the Fiscal’s sale and transfer under theprimary mortgagee’s decree. Both the mortgage bonds were dulyregistered in t-hoir order, but neither mortgagee had left an addressas provided by sections 043 and 644 of the Civil Procedure Code.
Held, that the transfer to the secondary mortgagee was void asagainst the primary mortgagee, by reason of its having been madeduring the pendency of the primary mortgagee’s action.
T
N this case the plaintiff-appellant and the defendant-respondentboth set up title to the land in suit through the same original
owner. The plaintiff claims on a mortgage dated November 11,1907,and registered on January 7, 1908. The property was sold in execu-tion, and bought by the appellant on November 27, 1909. TheFiscal’s transfers in his favour are dated January 11, 1910. Theywere registered on January 24. The respondent’s claim vests ontwo mortgages, dated respectively January 4, 1899, registeredon October 27, following, and January 17, 1905, registered onJanuary 27, 1905. The defendant put both bonds in suit on June21, 1909, in D. C., Negombo, 7,677, obtained decree on July 23,had the mortgaged lands sold in execution by the Fiscal, purchasedthem himself and obtained Fiscal’s transfers dated February 4, 1910.It was admitted at the trial that neither mortgagee had left anaddress with the Registrar of Lands as required by sections 643 and644 of the Code of Civil Procedure, and also that the secondarymortgagee was neither made a party to, nor given notice of, theprimary mortgagee’s action. On these facts the learned DistrictJudge held (1) that as the secondary mortgagee had given no addressto the Registrar of Lands, the primary mortgagee was not bound tomake him a party to, or give him notice of, his action ; and (2),following the decision of Wendt J. in Sami Appu v. Disanayake,l thatas the plaintiff’s case was instituted subsequently to, and during thependency of, the defendant’s, the plaintiff was bound by the decree
1 {1902) 6N. L, i?. 263.
Oct. 20, 1910
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in that action, and could acquire no title by an alienation pendentelife. On these findings the District Judge dismissed the plaintiff'saction with costs.
The plaintiff appealed.
Oct. SO, 1910
SebastianPerera v.Jusey Perera
H. A. Jayewardene (with him Cooray), for the plaintiff, appel-lant.—The plaintiff, who is a secondary mortgagee, is entitled tonotice of the primary mortgagee’s action under section 643 of theCivil Procedure Code. As no notice was given the plaintiff is notbound by the defendant’s decree. See Peris v. Weerasmghe,lWeerappa Chetty r. Arunachalam Chetty? Ratnaweera LiyanaArachchi r. Mohamadu Ibrahim,3 Meyappa Chetty v. Rawter, ' Lebbev. Siddik? The Oriental Bank Corporation v. Boustead?
The fact that the Fiscal’s sale under plaintiff’s writ took placeduring the pendency of the defendant’s action does not invalidate thesale. The doctrine of lis pendens would invalidate only voluntaryalienations, and not compulsory alienations. See Perera v. Perera?
Van Langenberg, for the defendant, respondent.—If the secondarymortgagee had sued on his bond and sold the land and the primarymortgagee had not brought an'action on his bond, the purchaserunder the secondary mortgagee’s writ would get a title subject to theprimary mortgage. The fact that the primary mortgagee broughtan action to enforce his mortgage right should not prejudice him.
Neither the primary nor the secondary mortgagee had given hisaddress to the Registrar as required by section 643. Section 644does not therefore apply. It has never been usual to make thesecondary mortgagee a party to an action by a primary mortgageeon his bond. The cases cited refer to subsequent purchasers orlessees. Sami Appu v. DisanayakeP is an authority direct in point.Counsel also referred to Sanmugam Chetty v. Khan?
H. A. Jayewardene in reply.—Section 643 has put a subsequentpurchaser and mortgagee on the same footing, and requires thatnotice of action should be given to both. In this case the primarymortgagee cannot complain that the secondary mortgagee has notleft an address at the Registrar’s office, as he has not himself leftan address with the Registrar.
Cur. adv. vult.
October 20, 1910. Hutchinson C.J.—
The defendant held two mortgages on the land which is the subjectof this action, one dated and registered in 1899, the other dated andregistered in 1905. M. P. W. Juan Peiris held a secondary mortgageon the same land dated in 1907 and registered in 1908;
5 (1900) 9 N. L. R. 359.s(1906)3B..A.L. 225.
(1909) 12 N. L. R. 139.*(1883)6S.C.C. 1.
3 (1904) 4 Leader 69.7(1906)9N.L.R. 217.
(1903) 6 N. L. R. 220.*(1902)6N.L.R. 263.
• (1906) 2 A. C. R. 10.
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Oct, 20, mo
Hutchinson
C.J.
SebastianPereira v.Jiwty Perera
The defendant sued the mortgagor on his bonds on June 21,1909,and obtained a decree in July, .1909 ; the.land was sold in executionof the decree in December, 1909, and was bought by the defendant,who obtained a transfer dated February 4, 1910, Juan Peiris suedthe mortgagor on his bond in August, 1909, and obtained a decree,in execution of which the land was sold in November, 1909, and wasbought by the plaintiff, who obtained a Fiscal’s transfer datedJanuary 11, 1910. Thus, although the defendant’s mortgages wereprior to that through which the plaintiff claims, and his actionwas begun first, the sale and transfer to the plaintiff were priorto the sale and transfer to the defendant, so that the dominiumis vested in. the plaintiff, unless the sale to him was void as againstthe defendant by reason of his having been made during the pendencyof the defendant’s action.
The plaintiff did not furnish an address to the Registrar of Lands.Therefore the provisions of section 644 of the Civil Procedure Codedo not apply.
The plaintiff claimed in this action a declaration of his title to theland and to recover possession. The District Court dismissed hisclaim, on the ground that his purchase was made pendente lite andcould not affect the defendant; and 1 think that that was right.The defendant had a valid mortgage duly registered ; he sued themortgagor to enforce it, and he was not bound to give the plaintiffnotice of the action, because the plaintiff had not given any addressfor service to the Registrar of Lands ; the plaintiff was boundequally with the mortgagor by the proceedings in that action. If•the land had been transferred to the plaintiff before the defendantsued, the defendant would then have had to make the plaintiff aparty to his action, because the plaintiff would have been the ownerof the land, subject to the defendant’s mortgage, and would havehad the right to redeem the mortgage. But, as it was, the defend-ant’s action was properly constituted, and it would be absurd todecide that he lost his rights under his .mortgage because he suedto enforce it. I would follow the decision of Wendt J. in Sami Appuv. Disanayake,1 which, in my opinion, is not over-ruled by thedecision in Perera v. Perera2 on the words of section 17 of thePartition Ordinance. I would dismiss the appeal with costs..
Wood Renton J.—
His Lordship stated the facts, and continued :—
The appellant’s counsel contended that under section 643 ofthe Civil Procedure Code a secondary mortgagee is entitled tonotice of a primary mortgagee’s action. None of the cases thathave come before the Courts under section 643 seems to decide1 (1902) 6. N. L. R. 263.2 (1906) 9 N. L. R. 217.
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this point directly. See, for example, Petris v. fVeerasingke,1where the title competing with that of mortgagee was that of atransferee on a private alienation ; Weerappa Chetty v. ArunaselamChetty,* also a case of purchase subsequent to mortgage ; and Ratna-weera Liyana Arachchi v. Mohamada Ibrahim,3 a case raising thequestion of the position of a lessee. I do not think, however, thatit is necessary -to decide the point now, inasmuch as admittedlynotice was given by neither side, and the District Judge was there-fore clearly right in holding that sections 643 and 644 of the Code ofCivil Procedure do not apply. On the second point I agree withmy Lord the Chief Justice that we should follow the decision ofWendt and Grenier JJ. in Sanmugam Chetty v.,Khan.* I do notthink that that decision is in any way affected by the constructionput by the Supreme Court on section 17 of the Partition Ordinance,1863 (No. 10 of 1863), in Perera v. Perera,s to which it may bementioned Wendt J. was himself a party. I would dismiss theappeal with costs.
Appeal dismissed.
Oct. 20, 1910
WoodRenton J.
SebastianPerera v.Juscy Perera