SILVA v. ABAYAGUNAWARDANA et al.

SILVA v. ABAYAGUNAWARDANA et al.

D. C., Galle, 4,099.

 

Seizure in execution-Mortgage of property seized-Return to writ-Prohibitory order under s. 37 of Ordinance No. 4 of 1867-Title of purchaser in execution.

Where property is duly seized in execution under Ordinance No. 4 of 1867, a mortgage of the same by the judgment-debtor is null and void as against the title of the purchaser at the sale on such seizure.

Where it was necessary to prove a seizure in execution eight or nine years after the event, and it appeared that the Fiscal had made return that the seizure had been duly made, and a list of the property seized appeared at the foot of such return, in terms of section 45 of Ordinance No. 6 of 1867- held, per Withers, J., that, in the circumstances, the fact that a prohibitory order under section 37 was duly affixed might, well be presumed.

THE first defendant in this case had by bond dated September 11, 1889, mortgaged certain lands to one Adrian, who by the deed of 27th April, 1894, assigned the mortgage bond to plaintiff. Plaintiff put the bond in suit in case No. 3,11.5 of the District Court of Galle against the first defendant, and obtained a mortgage decree and caused to be seized in execution the property mortgaged, when the second defendant claimed the same as his property. The District Judge upheld the claim and ordered a release under section 244 of the Civil Procedure Code. The plaintiff now sued

the first and second defendants for a decree declaring the said property liable to be sold in satisfaction of plaintiff's debt.

The issues agreed upon were, (1) Was the bond of September 11, 1889, executed for valid consideration ? (2) Is the property liable to be sold in satisfaction of the mortgage decree ? (3) Is the present action maintainable against the first defendant and the second defendant ?

The District Judge (Mr. F. J. de Livera) delivered judgment as follows: -

" This action is maintainable against the first defendant (see " 8 S. C. C. 97 and 7 S. C. C.105).

" Plaintiff has proved that the mortgage to Adrian was executed

" for valid consideration The property was undoubtedly

" under seizure in D. C., 53,850, when mortgaged to Adrian. The " sale report by the Fiscal shows the property was sequestered on " 30th August, 1887, and sold, after due publication at the spot, " on 5th October, 1889. But there is no. proof that an order was " affixed prohibiting the debtor from alienating the property " (Ordinance No. 4 of 1867, sections 37, 42), nor is there any proof " that the seizure was registered.

" As first defendant's bond was registered on 11th September, " 1889, before second defendant's vendor's transfer was registered, " plaintiff, I hold, is entitled to a decree declaring the property " liable to be sold in satisfaction of the mortgage debt.

" Let a decree be entered against the first defendant for the amount " claimed, and let it be further decreed that the property mortgaged by the first defendant by his bond of 11th September, 1889, " is liable and executable in satisfaction of plaintiff's mortgage "debt (7 S. C. C. 106):''

The defendants appealed.

De Vos, for first defendant, appellant, and Sampayo, for second defendant, appellant.

Dornhorst, for respondent.

24th March, 1898. Lawrie, J.-

I agree that there is here sufficient, proof of the seizure. Not only is there the return of the Fiscal, but the first defendant said in evidence, " Under writ in that case the property now forming " subject of suit was seized in execution, and while the property " was under seizure 1 mortgaged it to Manikpurage Adrian."

By section 42 of Ordinance No. 4 of 1867 that mortgage was null and void as regards the interests acquired by the purchaser in execution, and I agree to dismiss the action against the second defendant, whose predecessor in title purchased at the Fiscal's sale.

The sale was free of the mortgage, which was nu

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