041-NLR-NLR-V-57-NALLATAMBY-et-al-Appellant-and-SOMASUNDERAMKURUKKAL-Respondent.pdf
1955Present :. Rose, C.J.
NALL-ATHAMBY, el ah, Appellants, and SOMASUNDERAM-KLUR-UKKAIj, Respondent
S. C. J2G—C. R. Vavuniya, 10,55S
Jurisdiction—Action for redemption of olly'tnortgagc—Court where such action may beinstituted—Courts Ordinance (Cap. G), s. 75—Civil Procedure Code, s. 9 (b).
' Ari nction for the redemption of an otty mortgage and for tho release of themortgaged land from tho mortgage is a dispute affecting an interest in land andcan, therefore, bo brought in tho court- within the local limits of whosejurisdiction flic land in question is situate.
j^LPPEAL from a judgment of the Court of Requests, Vavuniya.
O.'Suntheralingam, with T. Arulatumthan, for the plaintiffs appellants
<S'. Sharcananda, for the defendant respondent.
Cur. adv. vult.
February 15, 1955. Rose, C.J.—
This matter raises a question of jurisdiction. The plnintiffs-nppcllantsbrought this action in the Court of Requests nf Vavuniya for the redemp-tion of an otty mortgage and for the release of the mortgaged lands fromthe. mortgage. It is common ground that the action could only properlyhavc been brought in that court oil tho ground that the lands in respectof which the action is brought lie within the local limits of the jurisdictionnf the Vavuniya court.
'There is no doubt that, tho lands in respect of which the. mortgage wasentered into do lie within the jurisdiction of the court but tbe learnedCommissioner held tiiat the action was not brought in respect of"the. lands within the meaning of section !1 (//) of the. Civil ProcedureCodo and that no “ interest in or right to the possession ” of tho lands inquestion was in dispute within tho meaning of Section 75 of the CourtsOrdinance.
Tiro learned Commissioner Appears to have relied in part upon two casesreported in i? Wccrakoon. In the first ease, at page 68, the action wasbrought to compel the-lessor to accept rent and tho learned judge verynaturally held that the action was not brought in respect of any land at all.
The second case, at page 64, although it was a possessory action, raisedonly tho question as to tho method by which tho action was to be valued.In that case too, therefore, no interest in tho land was in dispute.
It scorns to me therefore that neither of theso eases are of assistance indeciding tho present point.
beamed counsel for the appellants did not press in appeal the pointthat this is a hypothecary action within the meaning of Section 75 of theCourts Ordinance but ho contended that it is an action in which both aninterest in the land is in disputo as also the right to tho possession of themortgaged lands. Tho plaintiffs-appellants pray not only that thodefendant-respondent should accept tho money brought into court tosettle tho debt but also that the mortgaged lands should bo released fromtho mortgage. It seems to me that it would bo wrong to hold that amortgage—usufructuary or otherwise—cannot bo said to bo an interestin land. The matter may not bo free from difhculty'but it seems to methat a dispute as to whether this particular usufructuary mortgago shouldbe removed and the lands released from tho encumbrance is a disputeaffecting an interest in the lands iu question. 3 for cover, so long as amortgage is in existence tho defendant has a right to possess tho landsand in that sense the dispute may also bo said to bo one relating to thepossession of the mortgaged lands.
For these reasons I am of opinion that the action was properlyinstituted in the Court of Requests of Vavimij-a. Tho appeal is thereforeallowed and the matter remitted to the learned Commissioner to determineaccording to law. The appellants will have the costs of this appeal andof the proceedings hereto completed in the lower court in any event.
Appeal allowed.