021-NLR-NLR-V-29-KANDIAH-et-al.-v.-THAVAR-et-al.pdf
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1927.
Present: Fisher C.J., Garvin J., and Drieberg A.J.KANDIAH et rtf. t>. THAYAR et al
129—D. C. Jaffnal 20,619.
1Hypothecary action—Person .appointed■ to n present estate of deceasedmortgagor—Execution against . other property—Ci'rif ProcedureCode, 5. 642.
Where, in an. action to realize a mortgage, a person is appointeddo represent the estate of a deceased mortgagor uiulor the provisoto ' section 642 of the Civil Procedure Code, the plaintiff maylevy execution against other properly of the estate .if theamount of the decree* is not realized by the sale of (he mortgagedproperty.
Soysa r. Jayawardene 1 overruled.
T
HIS was an action for the partition of a land in which thedispute was with reference to the one-fourth share of one
Velar Alvapillai. The fourth defendant claimed the share byinheritance from Velar Alvapillai, and the third defendant claimedit on purchase by him at a sale in execution of a decree obtainedagainst a person, appointed to represent the estate of the deceasedVelar, under the proviso to section 642 of the Civil Procedure Code.Velar had mortgaged certain other property, and after his deaththe mortgagee sued on his bond. Under the decree the mort-gaged property was sold, and as it did not realize the amount ofthe decree, the one-fourth share of Velar in this land was sold in■execution and bought by the third defendant.
The learned District Judge held that no title passed to the thirddefendant on the ground that in an action against a representativeappointed under the proviso to section 642 of the Civil ProcedureCode the mortgaged property only could be sold.
Balasingliam, for third defendant, appellaut.—A representativeof the estate appointed under section 642 represents the estate“ for all the purposes of the action and a decree obtained againstsuch representative “ shall bind the estate of the deceased mort-gagor in the same manner in all respects as if a duly constitutedadministrator of the deceased mortgagor had been a party to theaction.” Clearly, then, not only the mortgaged property but thewhole estate of the deceased mortgagor will be liable in satisfactionof the debt. There is only one action available now to a mortgageeupon his mortgage. Therefore, if he is restricted to the mortgagedproperty only for the realization of his debt, it may happen that
1 (1914) 17 N. L. R. 218.
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in the event of a deficit after discussing the mortgaged propertythe mortgagee will have to lose the balance. The decree in a mort-gage action is a money decree as well as a hypothecary decree.The hypothecary decree declares the mortgaged property speciallybound and executable for the satisfaction of the claim; but itdoes not in anyt way limit the operation of the money decree.
The correctness of Mohamadu Lebbe v. Umma Natchia 1 and ofSoysa v. Jayairardene (supra) has been doubted in Cas$im vBabunhamyr
Jo8epht for fourth defendant, respondent—Chapter XLYI. of theCode refers to actions to realize moneys due or secured uponmortgages. Obviously it refers to moneys that can be realized onlyby the conversion of the security into money. Section 642 of theCode provides a speedy and inexpensive method to a mortgagee whowould be content to risk the satisfaction of his claim within thelimits of the security. If the mortgagee desires to have a decreewhich would enable him to reach properties other than the mort-gaged property he should have letters of administration takenout. It may be fair that to the extent of the realization of themortgagee's debt out of the security only he should have the specialadvantage given to him by section 642. But for the recovery ofany balance after the sale of the security there is no reason whyhe should be in a better position than an ordinary unsecuredcreditor.
August 11, 1927. Fish mi C.J.—
This is an appeal by a defendant in a partition action, who basedhis claim to a one-fourth share of the property, which is the. subject-matter of the action, upon a Fiscal's conveyance, against a decisionof the District Judge of Jaffna disallowing the claim.
The share in question was part of the estate of a deceasedmortgagor which had been sold under a writ of execution issuedin an action in which the mortgagee was the plaintiff and a personappointed by the Court under the proviso to section 642 of theCivil Procedure Code “ to represent the estate of the deceasedmortgagor for all the purposes of the action ” was the defendant.The writ was issued in order to realize the balance which .stillremained due in respect of the mortgage debt after sale under thedecree of the mortgaged property.
It was contended before the District Judge that the appellantacquired no title by the Fiscal's conveyance, and the District Judge-,being bound by two cases referred to by Schneider J. in Cassini n.Babunhamy (supra), allowed the contention.
1927.
Kandi<ih v.Tkavar
» {ISM) J -V. L. R. 246.
M1924) 22 AT. L. ft. 504.-
1927.
.Fibheb C.J.
Kandiah v.Thavqr
( no )The question which arises in this appeal is whether the Fiscalhad any power to sell the share claimed by the appellant in viewof the fact that the mortgaged property had been sold under thedecree.
It is contended that the words “ for the purposes of the actionin section 642 limit the defendant in such an action to representingthe estate of the deceased mortgagor for the purpose only of therealization of the debt by sale of the property which is subjectto the mortgage, and that when that property has been sold, eventhough the amount of the mortgage debt is not thereby realized,he is functus officio so far as representing the estate of the deceasedmortgagor is concerned. The two cases which the learned DistrictJudge followed support that view.
The first of these cases is Mohamadu Lebbe v. Zhnnia Natchia (supra).The facts in this case were that the plaintiff obtained a decree in anaction in which the defendant had been appointed defendant underthe proviso to section 642 and certain lands had been declared bythe judgment to be subject to the mortgage and bound and execut-able for the mortgage debt. The Fiscal seized lands which werenot subject to the mortgage together with the lands which werementioned in the decree, and the defendant claimed exemption forthe fqrmer and for one piece of the latter. The claim was allowed,and the plaintiff brought an action under section 247 of the CivilProcedure Code, which was dismissed. On appeal the SupremeCourt held that the piece of land covered by the mortgage couldbe sold, but that the other property was exempt. The question ofmaking good the deficiency did not arise in that case, but thejudgment is a clear decision in favour of the limited aspect of thescope,of an action under the proviso to section 642.
The second case is Soysa R. Jayawardene (supra), in which thecase of Mohamadu Lebbe v. Umma Natchia (supra) was followed, andIhe proposition which it laid down was again enunciated.
. In Cassim v. Babunhamy (supra) "Schneider J., whne he felthimself bound to follow these two cases, expressed his dissent fromthe proposition which they laid down.
In my opinion that proposition cannot be sustained, and Ientirely agree with the views expressed by Schneider J. in hisclosely reasoned judgment. I do not think there can be any,doubt but that the policy of the proviso was to give facilities forthe disposal of such claims against the estate of a deceased mort-gagor by providing for the proceeding in which it could be effected.To limit the operation of the proviso to the liquidation of themortgage debt to the extent only of the amount realized by thesale of the mortgaged property would not be in accordance withOr give effect to such a policy. The intention of the Legislature,moreover, is in my opinion clearly indicated by the concluding
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words of the section: “ And the order so made and an order conse-quent thereon shall bind the estate of the deceased ihortgagor inthe same manner in all respects as if a duly constituted adminis-trator of the deceased mortgagor had been a party to theaction. ”
In my opinion these words clearly indicate that execution inthese cases is not limited to sale of the mortgaged property, butthat the plaintiff may have recourse to the estate of the deceasedmortgagor for the purpose of making good any balance of themortgage debt remaining due after the sale of the mortgagedproperty.
I would therefore set aside the order of the District Judge andhold that the Fiscal’s conveyance to the appellant is valid, andthat it should be declared that the defendant is entitled to anundivided one-fourth share of the land.
The order appealed from must therefore be set aside, with thedirection and order as to costs indicated in the judgment of mybrother Drieberg.
Dbieberg A.J.—
This is an action for the partition of a land called Peruthala-wattei; the only question arising on the appeal is regarding theone-fourth share of Velar Alvapillai. The respondents claimthis share by inheritance from Velar Alvapillai, and the thirddefendant-appellant claims it on a purchase by him at a sale inexecution of a decree for which he obtained a Fiscal's transfer. 8D2,of May 13, 1908.
Alvapillai had mortgaged certain other property, and after hisdeath the mortgagor sued on his bond. The mortgaged propertybeing less than Rs. 1,000 in value a person was appoiufced underthe provisions of the proviso to section 642 of the Civil ProcedureCode to represent the estate of Alvapillai; under the decree soobtained the mortgaged property was sold, and as it did not realizethe amount of the decree the undivided one-fourth share of Alva-T>illai was sold in execution and bought by the third defendant-appellant, who obtained the Fiscal’s conveyance 8D2.
The respondents contended that the sale was bad, and-thatno title passed to the appellant on the ground that in an actionagainst a representative appointed under the proviso to section642 the mortgaged property only could be sold; the learnedDistrict Judge, following the ruling in Mohamadu Lebbe v. UmmaNatchia (supra) and Soysa r. Jayawardene (supra), upheld thecontention, and dismissed the claim of the third defendant-appellant to this one-fourth share. The appeal from.this findingwas argued before my brothers Garvin and Dalton, and by themreserved for a bench of three Judges.
i ma.
Fisher CX
Kandiah tr»Thavar ,
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1*7.
DrJEBERO
A.J.
Kqhdial. v.Thavar
The proceedings in the mortgnge action against the personappointed to represent the estate of Alvapillai are not before ns.Counsel, however, agreed that the mortgage decree was in the usualform, following the prayer in such an action given in form 106 ofschedule II. of the Civil Procedure Code, and such a decree directsthat if the proceeds of sale of the mortgaged property are insufficientlor 'payment of the amount of the decree the defendant shouldpay the amount of the deficiency with interest until realization.
This question arose again in the case of Cassim v. Babunhamij(supra), in which Schneider J., sitting alone, followed these twoeases, but examined them closely and stated that he was unable toagree' with them.
1 aril in complete agreement with the reasons given by Schneider J.for his opinion that in an action against a person appointed underthe provisions of section 642 the plaintiff can- levy execution against-other property of the estate if the amount of the decree is notrealized by the sale of the mortgaged property.
The reasons underlying the decisions in Muhamaclu Lebbe v. VmmaNatchiw (supra) and Soysa v. Jayawardene (supra) are that the personappointed does not represent the whole estate of the deceasedand that he is not in the same position as an administrator; nowit is true that the person appointed has not all the general powersof an administrator, but it is not necessary for tins- purpose to claimfor him such a status. Section 642 does not make the personappointed the representative of the estate for all purposes, butonly for all the purposes of the action, and there is nothing in thesection to indicate that so far as that purpose and its fulfilment areconcerned there is any limitation on his representative capacity; onthe contrary, it is expressly stated that his position as a defendant,so far as the action is concerned, is such that any order made inthe action would bind the estate in the same manner in all respectsas 'if the action had been brought against a duly appointedadministrator.,
If an action on the bond had been brought against the adminis-trator of the estate, a decree could have been entered for the saleof the property mortgaged and for the recovery of any deficiencyby execution levied on other property. Bonsor C.J. in PunchiKira v. Sangu.1 and Schneider J. in Cassim v. Babutihamy (supra,)have explained how the Civil Procedure Code now compels amortgage creditor to combine in one proceeding his action in remand his action in personam, against the mortgagor upon theprincipal obligation of debt. This action is rightly described inchapter XLVI. of the Code as one to realize moneys due or securedupon a mortgage. If, therefore, tfie claim to recover a deficiencyby sale of' unsecured property be a proper one in a mortgage action
>(1900) 4 N. L. R: 42. –
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brought against an administrator, it is not easy to see why such aclaim is bad if brought against a specially appointed representativewho for all the purposes of the action represents the estate so thatit can be bound in the same manner in all respects as if the personappointed were a duly appointed administrator.
I therefore hold that the defendant-appellant acquired titleunder the Fiscal conveyance No. 10,786 of May 13, 1908, tothe undivided one-fourth share of Velar Alvapillai.
The learned District Judge made the order rejecting thedefendant-appellant’s claim on September .1, 1926, and fixed adate for trial on the other issues; in the meantime the defendant-appellant appealed and further proceedings were stayed. Iwould therefore set aside the order of September 15, 1926, anddirect that the further proceedings for the partition should continueon the footing that the third defendant-appellant is entitled to theshare claimed by him.
The respondents will pay the defendant-appellant the costs of thisappeal and of so much of the trial as was occasioned by thecontest on this point.
Garvin J.—
I have had the advantage of seeing the judgments of my Lordthe Chief Justice and my brother Drieberg. I am in entireagreement with them, and see' no need to add anything to what;they have said.
Appeal allowed..
1927.
Dkieburo
A.J.
Kandiah r;Thavor