009-NLR-NLR-V-01-SILVA-v.-SILVA.pdf
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SILYA v. SILYA.D. G., Negombo, 1,563.
Priority of registration—Purchase at execution sale followed by possession andsubsequent Fiscal’s conveyance and registration—Interim private con-veyance and registration.
A mortgaged some lands to B in April, 18RG, the mortgage bond beingregistered in August, 1887. B having put the mortgage bond in suit,obtained a mortgage decree, himself purchased the lands in February,1890, at the execution sale, and entered into possession. He delayedobtaining the Fiscal’s conveyances till 1893, and they were registered thesame year. Meanwhile A sold the lands to C in 1892, who registeredhis deed in 1892.
In a contest between B and C as to title to the lands—
Held, that C’s title was superior.
Silva v. Tissera (9 S. C. C. 92) considered and followed.
Sinniah Chetty v. Babanis Appu ( Wendt, p. 213), and Government Agentv. Hendrickhamy (5 C. L. R. 86), distinguished.
r I iHE lands which formed the subject of dispute in this case wereJ- mortgaged to plaintiff by one Sinnappu Silva in April, 1886,and the mortgage bond was registered in August, 1887. Under amortgage decree obtained by plaintiff against his mortgagor, the
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premises were sold by the Fiscal in February, 1890, and werepurchased by plaintiff, who entered into possession soon after-wards. Bnt the conveyances from Fiscal were obtained only on21st March and 13th May, 1893, and were registered on 22nd May,
Meanwhile, on the 12th December, 1892, the plaintiff'smortgagor sold the lands to the defendant, who registered hisdeed on the same day.
The plaintiff, averring onster and dispossession by defendant,brought this action praying for declaration of his title and eject-ment of defendant. Defendant denied the alleged onster andset np title in himself under the deed of 12th December, 1892.
The District Judge dismissed the plaintiff's action, holding thatthe defendant’s title must prevail.
The plaintiff appealed.
Wendt, for appellant.
Bawa, for respondent.
Cur. adv. vult.
17th April, 1895. WITHERS, J.—
The appeal, in my opinion, is entitled to succeed.
The case of Sinniah Ghetty v. Babanis Appu {Wendt, p. 213)relied on by the District Judge is not in point: there, the land wassold before the mortgage decree, and the creditor could not procurea valid judgment against the land in which the purchasers inpossession were not joined. Here, the land was sold after themortgage decree, and could be levied in execution under thatdecree without any fresh action. But the decree was followed bya judicial sale of the premises affected by it, and so far as regardsthese premises it was an executed decree.
Mr. Bawa argued that the competition was between the mortgagedecree and defendant’s private conveyance, and that the circum-stances of the mortgage decree differentiates this case from thatof Silva v. Tissera {9 S. C. C. 92), which the District Judge feltto be in point, but tried to escape from its influence. But, asI have just said, the decree had been executed, and the competitionis between the confirmed sale thereunder followed by possessionand the private conveyance of the defendant. Mr. Bawa askedus to overlook the fact of plaintiff’s possession following on thejudicial sale, but we cannot do so, for I have no doubt of itsoccurrence. The present circumstances being then preciselysimilar to those in Silva v. Tissera, we are bound by that judg-ment. This case again differs from Government Agent v.Hendrickhamy {3 G. L. R. 86), for the' land there was the subjectof a judicial sale between the mortgage decree and executionthereof.
Set aside, and judgment for plaintiff, with costs.
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Bbowhb, J.—-
Hamuddra Sinnappu, by his mortgage bond dated 6th April,1886, and registered 4th April, 1887, mortgaged two lands to plain-tiff, who upon his bond obtained a mortgage decree, which he didnot register. At the Fiscal’s sale held in execution of his writ on7th February, 1890, he was declared the highest bidder, and thesale being confirmed by the Court he entered into possession.
While he was so in possession, Sinnappu, on the 12th December.1892, conveyed the same lands to his son-in-law, defendant, whoregistered his conveyance on that date.
On the 15th January, 1893, defendant ousted the plaintiff frompossession, and plaintiff having obtained his transfers from theFiscal on the 21st March and 13th May, 1893, which he registeredon the 22nd May, 1893, sued on the 13th March, 1894, for decla-ration of his title and ejectment of defendant.
The learned District Judge has dismissed plaintiff’s claim,holding that in place of suing on the strength of his Fiscal’#transfers, he should have framed his action to enforce his mort-gage rights against the defendant, as had been held in Wendt, 218,and that not having done so his defeat was certain, for that theonly competition here was between the rival conveyances, plain-tiff’s mortgage being merged in his transfer, and the registrationof his mortgage not enuring to the advantage in priority of theconveyance (3 C. L. R. 72), and that in such competition defen-dant must by priority of registration prevail. He admits that thedecision in 9 S. C. C. 92 appears to be in point, but declines tofollow it, as it yas there held that registration had no bearing onthe question at issue, but he cannot exclude it from consideration.
Ido not see how it was possible for the decision in Wendt, 218,to be made applicable. There, the purchase from the mortgagorwas (as I read the report, for no dates are given) anterior to thesale in execution under the mortgage decree, while here, theconveyance to defendant was two and a half years after plaintiffhad been confirmed in hi# purchase, wherefrom, under section 289,Oivil Procedure Code, he must now be regarded as having beenvested with the legal estate so long before defendant professedto have acquired title from the motgagor. An actio hypothecariawould therefore not lie against defendant.
As regards whether the Fiscal’s conveyance should be held torelate back to the sale which Mr. Bawa contended Bhould bedecided in the negative, if this were a case purely under theoperation of Ordinance No. 4 of 1867, the decisions in 9 S. C. O.82 and 88 would be applicable; but here, though the sale inexecution to the plaintiff was held in February, 1890, before the
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operation of the Civil Procedure Code, and although applicationto the Court for its confirmation was as unnecessary as we hold itwas in 1,355, D. C., Negombo, plaintiff did, after 1st August, 1890,viz., on 12th January, 1893, obtain confirmation of his purchaseunder the new procedure, and may possibly claim that section 389operates in his favour.
The contest is therefore not between plaintiff’s registered bondand defendant’s conveyance, as Mr. Bawa has urged, but betweenplaintiff’s deed as of date 7th February, 1890, registered on 22ndMay, 1893, and the conveyance to defendant, both dated and regis-tered the 12th December, 1892, with (superadded to the former)the fact of plaintiff’s possession, which was not an element ofconsideration in Wendt, 213, and was in 9 S. C. G. 92. This casediffers from 3 C. L. R. 86, in that there the purchaser under themortgage decree not having obtained his conveyance on the dateas on which the rights of parties had to be ascertained, thecontest lay between the unregistered mortgage decree and theregistered conveyance by the mortgagor granted thereafter.
The decision in 9 S. C. 0. 92 therefore is clearly applicable.The equity of the plaintiff will here, as there, prevail, and thereis the less reason to regret this, in that the defendant has notshown as in such a contest, and especially in regard to his relation-ship to his vendor, that his deed was for valuable consideration.
I would set aside the decree and enter judgment for plaintiffas prayed, with costs.