148-NLR-NLR-V-23-PERIS-v.-EPERANJINA-et-al.pdf
( 485 )
Present: De Sampayo and Schneider JJ.
1922.
PifilKIB a EPEBANJINA el <U.318—D. 0. Negombo, 14,399.
Mortgage—Action against special representative appointed under section642, Civil Procedure Code—Sale of other than mortgaged propertyunder decree invalid.
Under a decree against a special representative appointed undersection 642 of the Civil Procedure Code only the mortgagedproperty could be sold, and the sale of other than mortgagedproperty is invalid as against the heirs of the deceased mortgagor.
Croos-Dabrera, for appellant.
Zoysa, for respondent.
February 21,1922. Bn Sampayo J.—
The point submitted for consideration is whether under a decreeagainst a special representative appointed under section 642 of theCivil Procedure Code the property of the deceased mortgagor otherthan the mortgaged property can be validly sold and good titlepassed to the purchaser. There are two cases which, I think, aidauthorities. ThefirstofthemisJfoAamadu£cfi&e9. UmmaNatchia,1in which Lawrie J. expressed the opinion that under a decreepassed in an action by a mortgagor against a special representativeof a deceased mortgagee no other land could be seized in executionthan those named in the decree as executable. That case was followedin Soysa v. Jayavxtrdene* in which the question was discussed inall its bearings, and the Court came to the conclusion that thesale of other than mortgaged property was invalid as against theheirsof the deceased mortgagor. Mr. Dabrera, however, pointed outthat in a still later judgment the correctness of those decisions was.doubted by at least one Judge (Thambaiyar v. Paramasamy Aiyar 8).That was a Full Bench case, but the point for decision was not thesame as in this case, but incidentally Shaw J. referred to the pointnow under consideration. Bet the learned Judge in the very samepassage expressly abstained from deciding that question one wayor the other. As things stand we are bound to follow the twoolder decisions, and to hold that the appointment of a specialrepresentative under section 642 is to enable the mortgagee toseize and sell the mortgaged property and no more. The facts ofthis case appear to make the plaintiffs action still less sustainable.
1N.L.B. 246.
* U916)272?.L.B. 218.
*{1917) 19N.L.B. 289.
HE facts appear from the judgment.
( 486 )
1922.
Ds Sampayo
J.
Petrie v*Eperanjina
The plaintiff being the mortgagee of certain lands of one PeduruFernando would appear to have brought an action on the mortgageagainst Peduru Fernando and realized the mortgaged property,bat there being still a deficiency, it would seem the plaintiff hada representative appointed under section 642 for Peduru Fernando,who had, apparently, in the meantime died. Under writ issuedagainst that representative the property now in question, whichhad not formed part of the mortgaged property, was sold andbought by the plaintiff. The heirs of the deceased mortgagorhaving disputed the plaintiff’s title, the present action was brought.The burden of proof of title was on the plaintiff, and it must be heldthat he failed to discharge it.
I think the action was properly 'dismissed, and the Judgmentof the District Judge should, therefore, be affirmed, with costs.
Schneideb J-—I agree.