025-NLR-NLR-V-29-KRISHAPPA-CHETTY-v.-HORATALA.pdf
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1928.
Present; Bertram C.J. and Porter J.
KRISHXAPPA CHE.TTY t>. HOBATALA.
181—D. C. Kurunegala, 8,353.
Privy Coufuil—Special leave to appeal—Question oj general and publicimportance—Ordinance No. SI of 1909.
Where an appeal involves a complicated question of law,,which has been the subject of decisions of a conflicting nature,,the Supreme Court may grant special leave to appeal to the PrivyCouncil.
A
PPLICATION for special leave to appeal fo the Privy-Council.
('roos Da Brrra, for defendant, appellant.
Samarawickrcmc. for plaintiffs, respondent.
November 26, 1023. Berth*m CJ.—
This is an application by the defendant for conditional leave toappeal to the Privy Council. The dispute is between the purchasersat sales under two decrees in execution of two mortgage bonds,one primary the other secondary. The value of the land which■was subject to the mortgage was estimated by the plaintiffs in theirplaint at Bs. 2,500 and this is admitted in the defendant’s answer.The defendant who was in possession of the land alleges that he hasexecuted certain improvements and claims in reconvention Rs. 9,000as compensation for these improvements. The decree of this Courtin appeal declares that- the plaintiffs are entitled to the land, butexpressly reserves the question of compensation and directs thatthe case shall be sent back to the District Court for the purpose ofits determination. The judgment sought to be appealed against,therefore, does not involve any question of these improvements.The matter in dispute is the title to the land as the value ofthe land has been agreed on as Rs. 2,500, no appeal lies as of right.
In the alteratnive, however, the defendant asks for leave toappeal on the ground that the question involved in the appealis one which by reason of its great general and public importanceaught to be submitted to His Majesty in Council for decision.The case turns upon a question which has long been litigated in thet’ourts of this Colony, namely, the effect of the failure by a mort-gagee to register his address in pursuance of the provisions of sections643 and 644 of the Civil Procedure Code. Both parties are purchasersin execution of mortgage decrees. The defendant claims under
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the primary mortgage the plaintiffs under the secondary mortgage.Neither mortgagee registered his address. This Court has declaredthe purchaser under the secondary mortgage entitled to the landand has ordered the defendant, who was the primary mortgageand who put his bond in suit and bought in the land at the sale,to relinquish it. The question of law involved is an extremelycomplicated one. It has been the subject of a long series of decisions,some of them of a conflicting nature. The judgment sought to beappealed against propounds a new solution for the problem whichhas so long perplexed our Courts. The defendant rejects thissolution and claims himself to be entitled to the land.
The difficulties presented by these decisions 'can only be clearedup either by legislation or by a comprehensive survey of the decisionsin a higher Court. In view of the history of the question in ourown Courts, I think it is of the utmost importance that the PrivyCouncil should be invited to give an authoritative decision on thequestion. I would therefore grant leave to appeal subject to theprescribed conditions.
We took time to consider our decision in view of the fact thatit appeared to be alleged in the action that the primary mortgagebond had been already discharged before it was put in suit. Thisquestion, however, does not arise on the proposed appeal. It wasdetermined in a previous action. It- was there held that the bondwas not discharged arid the decision of the District Court wasconfirmed by this Court. The defendant is no doubt not boundby that judgment, but no issue was framed on the question hrthe present case. The judgment of this Court reserves to the*plaintiffs the right to raise the point in a subsequent action which*they contemplate, hut it is not involved in the present appeal.
1923:
BKK'fHAM
(J.
Kriahnappa*(-heitpv. Horatala*-
Pouter J.—I agree.
Application allowed..