012-NLR-NLR-V-05-BASTIAN-PILLAI-v.-ANAPILLAI.pdf
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B ASTI AN PILLAI. v. ANAPILLAI.
D.C., Batticaloa, 1,939.
Action, by assignee of mortgage debt against the heirs of a deceased mortgagorand the vendee of the heirs—Estate under Rs. 1,000—Necessity forappointing a representative of the deceased mortgagor—Civil ProcedureCode, s. 642—Irregular and imperfect seizure by Fiscal of the mortgagedebt—Failure of plaintiff's title.
An action by the assignee of a mortgage debt against the' heir of thedeceased mortgagor and the vendee of the heirs is incomplete without a■representative of the deceased mortgagee appointed under section 642of the Civil Procedure Code, when the estate is under Bs. 1,000 in value.
In such a case the plaintiff might apply to the Court to appoint arepresentative, and so put his action in order.
Where a .mortgage debt was assigned to A by the Fiscal by a con-veyance which recited that the Fiscal caused to be seized the right andtitle of the mortgagee in the mortgage bond and that the samewas duly sold, but it. was proved that what was really seized was theproperty itself and not the mortgage bond, and that the seizure of themortgage bond was not made in the manner prescribed by section 229 ofthe Civil Procedure Code,—
Held that, owing to such irregular seizure, the Fiscal had no apower tosue the mortgage debt, nor the plaintiff any right to buy it.
A regular and perfect attachment is an essential preliminary in thesale in execution of simple decrees for money.
Where there has been no such attachment, any sale that- may havetaken place is not simply voidable, but de facto void.
T
HE facts of this case appear in the following judgment of theChief .Justice.
Sampayo, for appellant.
Wendt, for respondent.
26th February, 1901. Bonser, C.J-—
This was an action brought by a person who claimed to be theassignee, of a mortgage debt against the heirs of the deceasedmortgagor and a third person, to whom the right of the mortgagor• had been sold and one of the properties included in the mortgage.The mortgagor died intestate, and it is said that his estate wasunder Bs. i,000 in value. That Jreing so, there was no necessity tohave an" administrator appointed.' But it seems to me that it was
1901.
February 26.
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1901. necessary to have some representative of the mortgagor: appointed.
February 26. un(jer 8eotion Q42 Gf the Civil Procedure Code, as I pointed out in
Pokseb, C.J. recent case (4 N. L. R. -i2), but'no such representative wasappointed. However, in a case like that the Court might give leavein the administration proceedings for that purpose, and the plain-,tiff might apply to the Court to appoint a representative and so puthis action right. The defendant, however, who is the purchaserof one of the mortgage properties, raised the objection, which, ifit be successful, would be fatal to the plaintiff’s action as far ashe is concerned; probably also it would be fatal as far as con-cerned the legal representative who has to be appointed. Itappears the plaintiff’s title is under a conveyance to him by theFiscal of the mortgagee’s interest in the mortgage bond granted by.the mortgagor, and the conveyance recites that the Fiscal causedto be seized and taken the said right and title of the mortgagee inthe mortgage bond, and that the same was duly sold.-
The appellant has called attention to the seizure report madeby . the Fiscal, which is not consistent with this recital. Theseizure report is dated 23rd July, 1897, and states that he went inJuly, on a date unnamed, to the house of the debtor, and theexecution-creditor pointed out the property described in thehereunto annexed schedule for seizure, and that he accordinglyseized it, and. notice of 3ueh. seizure, as described in the Fiscal’sminutes, was given. Now, the schedule of the property seizedcontains two gardens, one of which had been purchased by Mr.Sampayo’s client, and he was then in possession of it. He statesthat prohibitory notices of seizure were fixed on the property;duplicates are sent ’herewith.” That is returned to the villagetribunal to show how he executed the writ, and seized, and soldthe debtor’s property to satisfy the writ which had been issued bythat Court.
Now, it will be noticed that what:purports to be attached thereis the property itself “ with right of mortgage and other pri-vileges ”, whatever that may mean. But it would appear thatwhat the Fiscal seized was the property itself, for the notice ofseizure affixed to the property is that prescribed by section 237in the case of immovable property. But what ought to have• been seized was the mortgage debt, and the mode of seizure insuch a case is pointed out by section 229 of the Civil ProcedureCode, a notice written and signed by the Fiscal prohibiting thecreditor from recovering the debt and the debtor from paying.A copy of such notice shall be fixed in a conspicuous part of thecourt-house, ’and a copy is to be delivered or sent to the debtor.That is the mode of seizure prescribed .in the case of 3 debt.
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Now, the appellant, Mr. Sampayo’s client, objects that there 1901.has been no seizure of this debt in the manner prescribed by the February 26.notice, and that being so, that there was no power to sell, and Bowser, C.J.therefore the plaintiff cannot make out title. . His contention, isin accordance with a decree of the Full Bench of the AllahabadCourt in I. L. R- 5, Allahabad, p. 86, where it was held that aregular and perfect attachment ^is an essential preliminary inthe sales in execution of simple decrees for money; and thatwhere there has been no such attachment any sale that mayhave taken place is not simply voidable, but de facto void.
I am not aware of any decision of this Court which is in conflictwith that decision, and I think that we should do well in that case tofollow that decision, for although the words of our Ordinance differin some slight particulars from the words in the Indian Code, andthe practice also differs, in that in the Indian Code the sale is bythe Court, and under our Code it is by the Fiscal, yet it seems tome that the principle of the decision is the same, being unaffectedby the variations in the language, the principle being that theFiscal is empowered to seize and sell the debtor’s property; thatCode prescribes what seizure means, and that he has no power •to sell property that he has not seized, and that property as towhich the provisions of the Code as to seizure have not beenfollowed cannot be said to have been seized, and therefore cannotbe property sold.
Mr. Wendt suggests that, if the case is referred back, hemay be able to show that there was a regular seizure, and thattherefore the sale was good, and he asks that the case should goback for that purpose. We will therefore allow the case to* standover for a week in order that he may make further inquiries, andif he should, when the case is called -on- again, show that he hasreasonable hopes of supplying the deficiency, we will, allow thecase to go back for that purpose,' and also for the further purposein that case of applying to the Court to appoint a representativeof the deceased mortgagor.
Brownk. A..7.—Agreed.
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