080-NLR-NLR-V-26-MOHAMADO-ABDULLA-v.-KULUDIN-NACHCHIYA-et-al.pdf
( 431 )
Present : Bertram C.J. and Garvin J.
1924.
MOHAMADO ABDULLA r. KULUDIN NACHIYA et al.
4S—D. C. G«Ue, 20,966.
Mortgage action—Death of mortgagor—Action to obtain money decree—
Prescription—Civil Procedure Code, ss. 640*642.
Where a mortgage bouil is put in suit, after (he death of themortgagor, for the purpose of obtaining a money decree only, it isnot necessary to make the iegal representative of' the mortgagor aparty defendant in terms of section 642 of the Civil I’roceduure Code.
Such an action is not prescribed if it is brought within ten years.
^ PPEAL from a judgment of the District Judge of Colombo.
Soertsz, for plaintiff, appellant.
H. T Perera, for third and fifth defendants, respondents.
October 24, 1924. Bertram C.J.—
This is an appeal brought against the judgment of the DistrictCourt in favour of the third and fifth respondents. The action wasbrought on a mortgage bond. The mortgagor was dead. Hiswidow, the first defendant, was sued together with her children, no.application having been made under section 642 to appoint anadministrator. The object of the action was not to obtain ahypothecary decree, but merely to obtain a money decree. It wassupposed, therefore, that section 642 did not apply in the case.When the case came before the District Court no evidence was takenon a question of importance, namely, whether the persons sued hadadiated the inheritance. The learned Judge deals with two pointsin his judgment. The first was whether it was competent to theplaintiff to sue the defendants at all; the second was whether theclaim had been prescribed. The second is the more important.The question was whether the action being an action on the bondinstituted for the purpose of obtaining only a money decree camewithin section 6 or section 7 of the Prescription Ordinance, No. 22 of1871. The learned Judge came to the conclusion that the actioncame within section 7. Here, I think, his decision cannot besupported.
This is clearly an action upon a bond conditioned for the paymentof money. It is not necessary in this case to go into questionsdiscussed in the old case of Tiseera v. Tissera,l and recently furtherdiscussed by Ennis J. and De Sampayo J. in Don Simon v. Silva.-1 (149Q 2 X. L. R. 266.* {1915) 1 C. 11*. R. 71.
( 482 )
1934.
BehtramOJ.
5fohamadoAbdulla v.KxdudinKadriya
A bond conditioned for the payment of money clearly means aninstrument by which one person binds himself to another for thepurpose of seeming the payment of money. The mortgage bondin this case is clearly an instrument of that character, and the claimis not prescribed if it is brought within ten years.
With regard to the first point, it seems to us that, where amortgagee sues solely for the purpose of obtaining a money decree,sections 640-642 do not apply to him. Section 640 declares thatevery mortgagee or person entitled to bring any action for therealization of moneys secured to him under a mortgage shall sue,&c. The person there referred to is a person who brings anaction to realize the money due by the sale of the security. ThisI think is clear if we look at section 645. It may be observed thatShaw J. expressed an opinion to the same effect in Thambaiyar v.Pemmpasampy Iyar.1 This, however, does not carry the point-home. The third and fifth respondents are parties to this appeal, andMr. Perera points out on their behalf that there is no evidencewhatever that they have adiated inheritance, and Mr. * Soertszcannot now sustain his plea which was apparently put forward in theaction that such persons may be sued on the chance of their adiatingin the future. As regards these parties, therefore, the appeal mustbe dismissed.
The first defendant against whom Mr. Soertsz would be contentwith a judgment was in default in the Court below. It does notappear that she has been made a party to this appeal. Mr. Soertsz,however, suggests that it is possible on further investigations thatit may be found that she was a party. We say nothing for thepresent on that question. The appeal must be dismissed, with costs,as against the third and fifth respondents. But the plaintiff mayhave liberty to make a further application in the case if it shouldbe discovered that the first defendant was actually made a partyto the appeal.
Garvin J.—I agree.
Appeal dismissed.
1 (1917) 19 N. L. R.t p. 385 365 p. 387.