BANDIRALA v. SAIBO et al.

BANDIRALA v. SAIBO et al.

D. C., Kurunegala, 931 (L 251).

 

Property sold subject to mortgage-Rights of mortgagee-Claim-Registration.

Certain lands mortgaged to B were seized in execution of a money decree obtained by A against the mortgagors. B, as mortgagee, made a claim under section 241 of the Civil Procedure Code. The "Court, after inquiry, directed, under section 246, that the seizure be continued subject to the mortgage. The lands were put up for sale by the Fiscal with intimation to intending bidders of B's mortgage, and B bid up to the amount of his mortgage. The lands were ultimately knocked down to A. Before A got his Fiscal's conveyance or obtained possession of the lands B brought an action against his mortgagors on the mortgage bond, obtained payment, and had the same lands seized in execution A, who in the meantime had obtained a Fiscal's conveyance, in which no mention was made as to the sale to him being subject to the mortgage in B's favour, claimed the lands. His claim was upheld, and B sued him and the mortgagor to have it declared that the lands were executable under B's writ. The Fiscal's conveyance in favour of A had been registered prior to the mortgage bond in favour of B. Held, that the lands were still subject to the mortgage in B's favour, and that he was entitled to succeed in the action.

THE facts of the case appear in the judgments.

Dornhorst, for appellant.

Bawa, for respondent.

Cur. adv. vult.

7th July, 1896. Lawrie, J.-

Certain lands were mortgaged to Bandirala. They were seized in execution on a money decree obtained by Assena Pulle against the mortgagors. Bandirala, as mortgagee, made a claim under section 241. His claim was investigated, and the Court (under section 246) thought fit to continue the seizure subject to the mortgage. The lands were sold by the Fiscal. At the sale intimation of Bandirala's mortgage was given and Bandirala himself bid up to the amount of the mortgage, but Assena Pulle bid more and the lands were knocked down to him. Before Assena Pulle got the Fiscal's transfers Bandirala brought action on his mortgage against the mortgagors, only omitting Assena Pulle, because he was not yet in possession.

When the Fiscal executed the conveyance to Assena Pulle he made no mention that the sale was subject to Bandirala's mortgage. When Bandirala caused the Fiscal to seize the lands under the mortgage, Assena Pulle claimed them. His claim was sustained by

the Court on 3rd August, 1894, and on 7th August, 1894, Bandirala brought this action against the mortgagor and against Assena Pulle to have it declared that the mortgage debt was still due, and that the lands were bound and executable for that debt. Assena Pulle pleaded his Fiscal's transfers and their prior registration, and urged that he was not bound by the decree in the mortgage action to which he was not a party.

The District Judge sustained the defence and dismissed the action. Assena Pulle knew, from the time of his seizure, that Bandirala had a mortgage over the lands, and that if he brought at the Fiscal's sale he would purchase a property burdened; and why with that knowledge he should oppose the lands being sold for the mortgage debt (if he himself did not choose to redeem) I do not know.

The lands are undoubtedly subject still to the mortgage.

The judgment must be set aside, and the plaintiff must get the decree he asks for, subject to his succeeding in the inquiry which my brother Withers suggests.

Withers, J.-

 I think this appeal is entitled to succeed. I do not think that the cases cited to us in argument, or the case cited in the judgment, apply to the circumstances of the present action. The plaintiff is the creditor of the first defendant, and his debt is secured by a bond and mortgage over the four lands in question. The bond made on the 31st October, 1874, was not registered till 17th February, 1892. I do not think that regis

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