032-NLR-NLR-V-36-PUNCHIMENIKA-v.-UKKU-BANDA.pdf
Punchimenika v. Ukku Banda.
137
1934Present: Dalton J.
PUNCHIMENIKA v. UKKU BANDA.
113—C. R. Badulla, 6,610.
Mortgage—Bond not registered—Sale of mortgaged property also not registered—Transferee not a necessary party—Ordinance No. 21 of 1927, s. 6 (3).
Under section 6 (1) of the Mortgage Ordinance a subsequent encum-brancer is a necessary party only where his instrument is duly registeredand where, if the mortgage in suit is duly registered, he has also registeredan address for service.
PPEAL from a judgment of the Commissioner of Requests, Badulla.
ChoJcsy (with him E. B. Wickramanayake and' B. P. Pieris), for plaintiff,appellant.
L. A. Rajapakse, for defendant, respondent.
1 (1911) Appeal Cases 47.
2 (1914) 1 K. B. 414.
138DALTON J.—Punchimenika v. Ukku Banda.
March 23, 1934. Dalton J.—
The plaintiff, who is the appellant, sought to have a sale to thedefendant of certain property, 2 pelas in extent, set aside in the followingcircumstances : —
The 2 pelas, with 4 pelas in addition, were mortgaged in January,1902, to one Bastian. The mortgagors included one Muthu Menika,The bond was not registered. Bastian assigned the bond on October 7,'1905, to Kadiravelu, the husband of Muthu Menika. The assignment wasduly registered, but no address for service was registered. Kadiraveluput the bond in suit in April, 1929. The lis pendens was duly registered.The property was put up for sale and purchased by the defendant, whoobtained Fiscal’s transfer (exhibit D 1) on July 14, 1931. This deed wasregistered in the wrong folio.
Meanwhile Muthu Menika in March, 1928, purported to sell 2 pelas ofthe land to plaintiff. His deed (exhibit P 1) was also registered in thewrong folio. The Commissioner seems to have had doubts as to thegenuineness of the sale to the plaintiff, but no issue was raised on thispoint. He seems to have decided the dispute on the question of possession,although he definitely finds neither party has established any title byprescription.
The finding of the Commissioner as to the failure duly to register thetwo deeds P 1 and D 1 is not, and cannot, I think, be contested on theappeal.
It is urged, however, for the appellant that he was a necessary party tothe mortgage action, and as he was not made a party, he is not boundby the decree in that action. This was the only matter raised in theappeal.
The law governing this question is to be found in Ordinance No. 21 of1927. Mr. Wickramanayake urged that section 6 of that Ordinancere-enacted the provisions of section 643 of the Civil Procedure Code onthis question. He was able to cite no authority for his contention.
The law prior to Ordinance No. 21 of 1927 is laid down in several cases,of which I may cite one, Suppramaniam Chetty v. WeeresekeraIf themortgagee neglects to register his address, subsequent grantees orincumbrancers were not bound by the decree.
Having regard to the wording of section 6 (2) of the Mortgage Ordinance.1927, it would seem a change was made in the law on this point. Theplaintiff was not a necessary party to the action, because the instrumentunder which he derived title was not duly registered. The mortgage inthe suit was also in fact not duly registered, and Mr. Wickramanayakeurged that none of the conditions in sub-section (2) arise until themortgagee has registered an address for service. I do not think, however,that the sub-section is capable of that construction. The plaintiff is anecessary party where his instrument is duly registered and where, if themortgage is duly registered, he has also registered an address forservice.
' 20 .V. /.. R. 170.
DRIEBERG J.— Weeraratne v. Abeywardene.
139
He has failed in respect of the first condition here laid down and, as Iread the section, he is bound by the decree under sub-section (3) ofsection 6. In such a case the effect of a conveyance under the mortgagedecree is set out in section 10 of the Ordinance. The deed D 1 thereforeprevails.
The appeal must therefore be dismissed with costs.
Appeal dismissed~