WIJEWARDENE v. SCHUBERT et al

018-NLR-NLR-V-10-WIJEWARDENE-v.-SCHUBERT-et-al.pdf


🙁 so )1906.[In Review.]
December 4. pTe8ent. gjr joseph T. Hutchinson, Chief Justice, Mr. Justice
Wendt, and Mr. Justice Middleton.
WIJEWARDENE v. SCHUBERT et al.
D.C., Colombo, 20,475. –
''•nature—Recoil of writ, effect of—Re-issue—Second seizure and sole undersuchseizure—Mortgagepending firstseizure—Validity—■CivilPro-
cedure Code, s. 238.
Held, that where a writ is recalled a seizure made under it comes-an end.
There a writ under which property had been seized (the seizurebeing duly registered) was recalled, but was subsequently re-issued,and the property was seized again and sold by the Fiscal under•such second seizure, and where the judgment-debtors mortgaged theproperty pending the first seizure, but before the ^second seizure,—
Held, that such mortgage was valid as against the purchaser at-the Fiscal’s sale, his rights being derived not from the first, seizureduring the pendency of which the mortgage was executed, but fromthe second seizure, which was subsequent to the mortgage. .
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HE first and second defendants, being the owners of certainpremises, mortgaged them to one Don Philip Wijewardene,
Muhandiram, by bond No. 1,236, dated 21st December, 1901, and4 registered on 14th March, 1902, . to secure a sum of Rsv 4,000 andinterest thereon.
Writ having issued against the first and second defendants in D.C.,Colombo, 14,558, at the instance of one Murugappa Chefcty, the.aaid premises were seized by the Fiscal on 21st September, 1901,and the seizure was registered on 24th September, 1901; on 5th
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May, 1902, the writ was recalled by the Court; and on 7th July,1902, the order of 5th May, recalling the writ, was vacated, and writwas ordered to be re-issued: the property was seized again on 1stAugust, 1902, and sold on 9th September, 1902, and purchased byone Nelson, who having obtained Fiscal's transfer, dated 10thJanuary, 1903, and registered on 16th January, 1903, sold theproperly to the third defendant by transfer dated 30th May, 1903,and registered on 10th June, 1903.
The mortgagee having died, his executrix sued the mortgagorson the bond and joined the third defendant as party in possessionof the. mortgaged property. The first and second defendants did notdefend the action; but the third defendant pleaded that the mort-gage bond was void, as it was executed pending a seizure which wasduly registered. The Acting District Judge's (J. B. Weinman, Esq.)judgment on this point was’as follows : —
“ The plaintiff sues on a mortgage bond made by the first andsecond defendants in favour of her husband now dead. She suesas executrix.
“ The mortgage bond was made on the 21st December, 1901, andregistered on the 14th March, 1902.
“ The third defendant purchased the land from one Nelson bydeed No. 1,238 dated the 20tb May. 1903 (D 4).
** Nelson purchased the land at a Fiscal's sale held on the 9thSeptember, 1902, on a writ issued in case No. 14,558 of this Courtagainst the first and second defendants. Nelson got this conveyance-on the 10th January, 1903 (D 3).
“It is also clear that the seizure of the property under the writwhich went out in case No. 14,558 was registered on the 24thSeptember, 1901.
“ So far the facts are admitted. The third defendant further
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says that at the date of the mortgage, t.e., 21st December, 1901,the property was under a seizure which had been duly registered.Undoubtedly the property was seized under writ in D. C., Colombo,14-,558, early in September, 1901; and. such seizure was registeredon the 24th September, 1901. On the 5th- May, 1902, the writ, was*recalled and I take it that the recalling, of the writ released theseizure aad discharged the registration, for both were consequentialon the issue of the writ. The sale to Nelson by .the Fiscal was on the9th September, 1902. It would not have been , under the first-seizure, for that seizure came to an end on the 5th May, 1902. InJuly, 1902, the plaintiff moved to re-issue the writ, which wasallowed, and the property was seized a second time on the 1st:August, 1902, and sold on the 9th September, 1902. So far, thenr
1904.
December 4*
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1$Q6.with regard to the first issue, my finding is that the mortgage pro-
Dwembur 4. perty was seized in execution of a decree in case No. 14,558 of thisCourt on the 21st September, and such seizure was registered on the24th of the same month. With regard to the second issue, 1 holdit proved that at the date of the mortgage by the first and seconddefendants to the plaintiff's intestate the property was stall subjectto such seizure and registration. With regard to the third issue, I findthat the property was not sold in execution of such seizure. Thisis abundantly clear. The writ under which that seizure was madewas recalled by the Court on the 5fch May, 1902, four months ■before the sale. And the Fiscal's return (P 1) shows a secondseizure on the 1st August, and that the property was sold on the9th September, 1902, having been seized on the 1st August, 1902.
“ Section 238 of the Civil Procedure Code provides that any privatealienation by the debtor of the property seized shall be void as againstall claims enforceable under the seizure. The alienation is void, Itake it, not as against the whole world, but as against the attachingcreditor or persons who acquire under or through the attachment.The property not having been sold in execution of the seizure which■was subsisting at the date of the mortgage, but being sold on a seizuresubsequent thereto, I hold that the third defendant's defence fails/’On an appeal preferred by the third defendant the Supreme Court(Layard C.J. and Grenier A.J.) affirmed the judgment of the DistrictJudge (2nd June, 1905). On the application of the third defendantthe case was heard in review preparatory to an appeal to His Majestyin Council.
Van Langenberg (with him Wadsworth), appeared. for the third.defendant, appellant.
Walter Pereira, K.C., S.-G. (with him H. Jayevmrdene), for theplaintiff, respondent.
Cur. adv. vult.
c
4th December, 1906. Hutchinson C.J.—
The plaintiff sues as the executrix of her late husband on a mort-,'gage given, to him by the first and second defendants. The third'•defendant claims the mortgaged property under a purchase made-by his predecessor in title, Nelson, at a sale under a writ of execution.■against the first and second defendants.
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• The first and second defendants were the judgment-debtors in anaction in the District Court of Colombo; on the 23rd August, idOl, awrit of execution was issued in that action; on the 21st September,1901, the property was seized in execution under that writ; and theseizure was registered three days afterwards. On.21st December,1901, the mortgage was executed; on the 14th March, 3902, the mort-
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gage was registered; on the 5th May, 1902. an order was made byconsent, " that plaintiff's claim be and the same is hereby declaredsatisfied in full, and that the writ issued in this case be recalled.
On the 7th July, 1902, another order was made in the action inconsequence, it is said, of its having been found that the plaintiff'sclaim had not been fully satisfied, and that the order of the 5th Maywas thereby vacated and another writ ordered to issue; on the 16thJuly a new writ issued; on the 1st August the property was againseized, and on the 9th September it was sold by the Fiscal under thenew writ and seizure. This sale was duly confirmed and a Fiscal’stransfer of the property was executed to Nelson, who afterwardssold it to the plaintiff; the Fiscal's transfer is dated 10th January,1908, and recites that the Fiscal was directed to seize and sell theproperty by virtue of a writ of execution dated 2ord May, 1901,making no mention of the subsequent writ; but that was a mistake,for it is proved that the second seizure was made on the 1st andregistered on the 4th August, 3902, and that the sale was made inpursuance of that seizure.
The District Judge gave judgment for the plaintiff, and the thirddefendant appealed against that judgment; his appeal was dismissedby the Supreme Court, and he now brings the case before the FullCourt with a view to appealing to His Majesty in Council. Section238 of the Civil Procedure Code enacts that when a seizure of anyimmovable property has been effected and made known and register-ed, any private alienation of the property seized, “ after the seizureand before the removal of the same by the Fiscal, shall be void asagainst all claims enforceable under the seizure.
Was there, after the order of the 5th May, 1902, any claim en-forceable under the seizure of the 21st September, 1901 ? In myopinion there was not. There is no evidence of any formal orderdirecting the Fiscal to vacate the first seizure and stop the sale;but in fact there was no sale, and after the recall of the writ directingthe seizure and sale nothing was done, and nothing could have beendone in consequence of the seizure.
In my opinion the judgment under review is right.
Wendt J-—
This is an action upon a mortgage executed by the first and seconddefendants (who are husband and wife), and the object of the actionso far as the appellant is concerned is to render the mortgaged landliable for the debt, in his hands, he having acquired from a vendorwho h&d purchased it at an execution' sale held subsequent to themortgage. The appellant's contention is that the mortgage is void
1906.
December 4.
Hutchinson
CUT.
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1906* as against him, because it was effected pending the seizure by theDecember *, Fiscal under which he bought (section 238 of the Civil ProcedureWendt J, Code.) The facts upon which this contention is based are set forthin the judgments of my Lord and my brother Middleton, which Ihave had the advantage of perusing, and I need not repeat them.I agree in holding that when the judgment was declared satisfiedand the writ of execution recalled on 5th May, 1902, the seizurewhich had been made under that writ came to an end. Nothingwas* done by the Court or the Fiseal which purported to revive thatseizure. On the contrary, a new writ issued, backed by a copy ofthe Court’s order of 7th July, 1902, and on 1st August, 1902, a newseizure was effected (see document PI)* These steps were subse-quent to the mortgage. If the appellant, before he purchased, haddemanded to see the writ, he would have seen that it bore datesubsequent to the seizure upon which he now relies, and was issuedto execute an order also subsequent to it. In my opinion the learnedDistrict Judge, and the Judges of this Court who dealt with theappeal, were right in holding that the mortgage had not been effectedpending the seizure under which appellant bought, and that is fatalto his claim. The case from*the Indian Weekly Reporter (20 W, R.20) which appellant cited to us is distinguishable in principle. Itmay be that the seizure is regarded as continuing until the confirma-tion and completion of the sale, and if that sale be set aside forirregularity, a new one could properly be held under that seizure.Here, however, there was an adjudication inter partes that the. decreehad been satisfied, without the necessity of resorting to an executionsale at all, and an order that the writ be therefore recalled.
I think, therefore, that the judgment under review should beconfirmed, with costs of the review bearing.
Middleton J.— .
This was an action begun on 1st August, 1904, on a mortgage bondgiven by first and second defendants on the 21st December, 1901,and registered on the 14th March, 1902, to the plaintiff’s testator,in which decree was entered on 10th -November, 1904.
The third defendant was the assignee of a purchaser of the mort-gaged property under a Fiscal’s sale upon a seizure under a moneydecree in action D. C., Colombo, 14,558.
Judgment in action No. 14,558 was given on 2Srd August, 1901,at the suit of a Chetty against the first and second defendants here,and the property was seized on 21st September, 1903, the seizurebeing registered on 24th September, 1901.
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On the 15th May, 1902, the writ in D. C.( Colombo, 14,558, wasby order of the District Judge recalled on a mistake of fact that ithad been satisfied, but on the 5th July, 1902, an order vacating theorder of 5th May was made and a fresh writ issued for the balanceof the judgment debt due in No. 14,558.
On the 1st August, 1902, the property was again seized in No.14,558, and the sale report shows that on 9th September, 1902,the property was sold by the Fiscal and bought by one Nelson, thesale being confirmed by the Court on 11th November, 1902.
On the 10th January, 1903, Nelson got a Fiscal’s transfer, register-ed six days later, and on 20th May, 1903, Nelson sold to the thirddefendant.
The District Judge in the present action held (1) that the mort-gaged property was seized in execution of a decree in case No. 14,558of the Colombo Court on the 21st September, 1901, and such seizurewas registered on the 24th September; (2) that at the date of themortgage by the first and second defendants to the plaintiffsintestate the property was still subject to such seizure and registra-tion; and (3) that the property was not sold in execution of thatseizure, but of the subsequent seizure, and that third defendant'sdefence, that the property was not liable to be sold in satisfactionof a mortgage decree against the Urst and second defendants failed.
The third defendant appealed, and the Supreme Court in a very-short judgment dismissed the appeal, holding that the Fiscal did notappear to have sold the land on the original seizure, but on a subse-quent one.
The case is now brought in review before three Judges with a viewto an appeal to the Privy Council.
The question in the case was whether the recall of the writ inaction No. 14,558 on the 5th May, 1902, had the effect of cancellingthe seizure madeiunder it on 21st September, 1901, registered on the24th September, 1901.
It was submitted on behalf of the appellant and maintained by theSolicitor-General that a new writ in fact issued on 7th July, 1902,there being no apparent provision in the Civil Procedure Code forthe re-issue of a writ.
The appellant’s counsel, however, contended that there had been
no removal of the original seizure.by the recall of the first writ, and
that such removal must be’ by special order, and he referred to
sections 239, 244, 249, 259, and 343 as indicating that the intention of
•the Code was to that effect. Under section 239 it must be the writ■>
which is to be ordered to be withdrawn, as it orders the seizure.Under section 244 a special order is necessary as only one possiblyl0~
1906.
December ,4.
Middleton
J.
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1906. out of many properties may have to be released from the seizure.December 4. Under sections 259 and M3 the order is only for a postponement,Mitoi®roK adjournment, or stay of execution.
J*In the present case the order of 5th May, 1902, was made practically
as within the terms of section 239.
He also urged that the proctor for the first and second defendantson the 5th May, 1902, moved for a stay of sale, and not for a releaseof seizure; that the Fiscal's transfer showed that Nelson bought underthe old writ; and that the effect of its recall was not to cancel theseizure under it.
He referred also to an Indian case reported in 20 Weekly Reporter,p. 20. In that case the setting aside of a sale for irregularity washeld not to displace the attachment upon the property under thewrit, which presumably was still in force.
My view is that the effect of recalling a writ by the Court is tonullify a seizure which has been made under and by virtue of it.The writ is the continuing authority to the Fiscal to seize and sell;when that is withdrawn) his power to do so is gone. Without thewrit the Fiscal has no right to retain in his charge nor to sell, theproperty. I would hold then that the withdrawal of the writ fromthe Fiscal’s hands by the Court has the effect of determining theFiscal's authority and the seizure he may have made under it, eventhough it be registered.
If a mortgagor pays off his mortgagee under a registered mortgage,there would not appear to be any necessity for the cancellation ofthe registration of the mortgage. The payment of the debt- avoidsthe mortgage ipso facto, and so its registration; a fortiori thewithdrawal of a writ by the Court which authorizes the seizureshould avoid the seizure, and its registration thereby becomes nulland inoperative.
I can find nothing in the Land*Registration Ordinance, No. 14 of1891, rendering it necessary to cancel registrations formally.
I think, therefore, that the sale to Nelson took place under thesecond wril and seizure thereunder, as the Fiscal's report says,dated 1st August, 1902, issued for the balance of the judgment inNo. 14,558, that the mortgage to the first and second defendantswas previous td and good against That seizure, though bad as againstthe first seizure.<.
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I would therefore dismiss the appeal with costs and* uphold thejudgment of the Supreme Court, which wall not inflict any hardshipon the appellant, although it may deprive him of what he may havesupposed was a good bargain.c
Judgment in appeal confirmed» .