045-NLR-NLR-V-39-THANGAMMA-v.-NAGALINGAM.pdf
143
SOERTSZ J.—Thangamma v. Nagalingam.1937Present: Soertsz and Hearne JJ.
THANGAMMA v. NAGALINGAM26—D. C. (Inty.), Jaffna, 10JZ89
Mortgage action—Intervention of judgment-creditor of mortgagor, who hadseized the property—Wot necessary party—No right to intervene—CivilProcedure Code, s. 18—Mortgage Ordinance, No. 21 of 1927, s. 6 (I).Where in a mortgage action a person who had effected a seizure of themortgaged property on a writ which he had obtained against the defend-ant, applied to intervene on the ground that the action was a collusiveone brought to frustrate his seizure,—
Held, that the petitioner was not entitled to -intervene as he was not anecessary party for the adjudication of the questions involved in theaction between the plaintiff'and the defendant.
Held further, that he was not a necessary party within the meaningof section 6 (1) of the Mortgage Ordinance.
Kalu Menika v. Kiri Banda <2 C. L. Rec. 1911 and Ibrahim v. HongKong and Shanghai Bank (37 N. L>. R. 51) followed.
PPEAL from an order of the District Judge of Jaffna.
N.Nadarajah (with him S. Mahadeva), for plaintiff, appelfhlit.
S.Nadesan, for petitioner, respondent.June 22, 1937. Soertsz J.—
Cur. adv. vult
This was an action on a mortgage bond. The plaintiff sued the defendantto recover a sum of Rs. 1,500 with interest and prayed that, in defaultof payment, decree be entered for the sale of the mortgaged premises.Before summons could have been served on the defendant, the petitioner-respondent filed petition and affidavit and prayed that “ he be allowed tointervene in this case and file answer He alleged that this action was acollusive one between the plaintiff and the defendant for the purpose offrustrating a seizure he had effected in respect of this land-on a writ hehad obtained against the defendant.
The inquiry into this application took place on November 11, 1936.By that date, the defendant had been served with the summons but had.not appeared to defend the action. The District Judge made order on.November 23, 1936, directing that the petitioner be added a party.He purported to act under section 18 of the Civil Procedure Code. Nowas pointed out in the case of Perera v. Lowe * in which the facts are exactlythe same as the facts in this case except that the action was based on apromissory note and not a mortgage bond, a person in the position of thepetitioner in the present case cannot intervene as he is not a necessaryparty for the effectual and complete adjudication of the questions involvedin the case. He has noticing to do with the questions involved in theaction between the plaintiff and the defendant. It is not necessary topursue this question any further. Respondent's counsel frankly ad-mitted he could not support the trial Judge’s order under section 18 of
1 (1920) 2 C. L. Rec. 191.
144SOERTSZ J.—Thangamma v. Nagalingam.
the code, but he maintained that the petitioner was rightly made a partybecause he was a necessary party in terms of section 6 (1) of the MortgageOrdinance, No. 21 of 1927.
The petitioner, he argued, had an interest in the land to “ which themortgage in suit had priority ”. But this point too is covered by author-ity. In Ibrahim v. Hong Kong and Shanghai Bank Garvin and AkbarJJ. held after careful consideration that a seizure does not create aninterest in the land seized within the meaning of section 6 (1) of theOrdinance No. 21 of 1927. The same view appears to have been taken byDalton J. in Chettiar v. Coonghe2. I would follow these rulings and holdthat the petitioner’s application cannot be supported under section 6 (1)of the Mortgage Ordinance.
It therefore fails and the appeal must be allowed with costs ofappeal and of the inquiry to be paid to the appellant by the petitioner-respondent.
Heabne J.—I agree.
Appeal allowed.
‘ 14 C. L. Bee. 81; (1934) 37 N. L. B. SI.
13 C. L. Bee. 33; (1933) 3S N. L. R. 89 at 91.