081-NLR-NLR-V-25-SUPPIAH-v.-SINNIAH.pdf
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Present: Be Samp&yo A.C. J. and Porter J.SUPPIAH v. SINNIAH.387—D. C. Jaffna,15,536.
Mortgage—Mortgagee's address not registered—Land sold in execution ofmoney decree—Fiscal* 8 transfer to purchaser subject to mortgage—Action by mortgagee without making purchaser a party—Purchaseby mortgagee under mortgage decree—Civil Procedure Code,as. 643 and 644.
K mortgaged his land to defendant by a bond which was regis-tered in 1910. The address of the mortgagee was never registered.In April, 1917, the land was called in execution of a money decreeagainst K, and was purchased by the plaintiff. A Fiscal’s transferwas issued to the plaintiff on September 10, 1917, and registeredin May, 1918. The defendant sued K on his mortgage bond onSeptember 13, 1917, and obtained a decree in October, 1917.
The defendant himself purchased the mortgaged land at a saleunder the mortgage decree in 1920. The plaintiff was not a partyto the mortgage action, nor was he given notice of it. The plaintiff'sFiscal’s transfer expressly stated the sale to have been subject tothe mortgage.
Held., that plaintiff’s title should prevail over that of defendant.
rpHE facts appear from the judgment.
Hayley, for appellant.
Samarawickreme (with him J. Joseph), for respondent.
1923.
1923.
Suppiah v.Sinniah
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June 6, 1923. De Sampayo A.C.J.—
This is one more case which presents a difficult point—almosta puzzle—in the law of mortgage. One Kanapathipillai was the_owner of the land in dispute, and he, on May 1, 1909, mortgaged itto the defendant. The mortgage bond was registered on July 10,1910, but the address of the mortgagee was not registered at anytime. Pending this mortgage, the land was on April 25, 1917, soldin execution of a money decree against Kanapathipillai and waspurchased by the plaintiff. A Fiscal’s transfer was issued to theplaintiff on September 10, 1917, and the same was registered onMay 29,1918. The defendant sued Kanapathipillai on his mortgagebond on September 13,1917, but without making the plaintiff a partyto the action or giving him any notice of it, and obtained a decreeon October 24, 1917. The plaintiff’s Fiscal’s transfer expresslystated the sale to have been subject to the mortgage, but there is nospecial significance in this recital, because the grant in any eventwas in fact subject ,to the mortgage. The defendant, however,still ignoring the plaintiff, issued writ in the mortgage action and hadthe land sold and purchased it himself on March 3, 1920. Thepresent action is a contest for title to the land between the plaintiffand the defendant.
The principal question is whether the defendant took effectivesteps to make the mortgage decree binding on the plaintiff. Thereare two ways in which he might have done this. One was to followthe provisions of sections 643 and 644 of the Civil Procedure Code asto registration of an address and notice to the puisne incumbrancer,which in fact was in a series of decisions of this Court held to be theonly way. The other way was what was pointed out as allowable bythe Full Bench in Moraes v. Nallan Chelty,1 namely, to make thepuisne incumbrancer a party to the mortgage action or to bring asupplementary hypothecary action against him. But the defendan'followed neither of these courses, and the matter has now reacheda stage in which, not only is neither course possible, but a merequestion of competing purchases arises. The plaintiff’s Fiscal’stransfer is prior in date as well as registration, and 1 think his titleshould prevail over that of the defendant. The unsatisfactorystate of the mortgage law in Ceylon was pointed out in Moraes v.NaUan Chetty (supra) and remedial legislation was suggested, butas matters stand, and exercising my best judgment on the questionin this case, I have come to the above conclusion.
In my opinion the judgment of the District Judge in favour ofthe plaintiff should be affirmed, with costs.
Porter J.—I agree.
Judgment affirmed.
J (1923) 24 N. L. R. 297 ; 4 C. L. i2.198.