SUPPERAMANIAN CHETTY v. MOHAMMADU ALIAR et

SUPPERAMANIAN CHETTY v. MOHAMMADU ALIAR et al.

D. C, Kegalla, 870.

 

Civil Procedure Code, ss. 242, 246-Claim by mortgagee in property seized in execution-Rejection of claim and sale of property-Failure of mortgagee to institute action for establishing his right under s. 247-- Right of mortgagee to bring hypothecary action against his debtors and purchaser under sale in question.

A land being seized in execution as the property of A and B, C (the mortgagee) preferred a " claim " to the Fiscal. The District Judge rejected his " claim to the property," and the land was sold by the Fiscal to D. Thereafter C (the mortgagee) raised the present suit against his debtors A and B and the purchaser D.

On D's plea that C's action was barred by section 247 of the Civil Procedure Code, in that it was not instituted within fourteen days of the rejection of t he claim.---Held, that the ' claim " rejected did not affect the right of C to sue on the mortgage bond or to seize the land mortgaged, into whose possession so ever it went.

Lawrie, J.- Section 246 of the Civil Procedure code is intended for the benefit of those whose liens or mortgages are, not registered and whose rights would be extinguished by a sale in execution, unless their existence and validity were acknowledged by the Court.

THIS was an action for the recovery of Rs. 4.350, being principal and interest, alleged to be due upon a mortgage bond granted by the first and second defendants to the plaintiff. The third defendant was the purchaser (in execution of a money decree

pronounced in case No, 784 of the District Court of Kegalla) of one of the lands hypothecated to the plaintiff. Plaintiff prayed

that in default of payment by the first and second defendants the lands and movables hypothecated may be declared bound and executable for the sum claimed.

The first and second defendants did not appear, and judgment was entered against them. The third defendant filed answer. He pleaded that as the plaintiff had failed to institute an action under section 247 of the Civil Procedure Code within fourteen days of the rejection of his " claim " in case No. 784 aforesaid, he was barred from maintaining the present action against him.

The District Judge found that on 3rd May, 1896, the land called Harangahatennahena (being one of the lands mortgaged to plaintiff) was seized in execution on a writ issued in case No. 784 against the property of the first and second defendants; that on the 15th May, 1896, the plaintiff preferred a claim to the Fiscal based upon the bond now sued upon; that the District Judge rejected his " claim to the property " on 30th May, 1896; that the nature of plaintiff's claim as mortgagee was not rightly understood; that the effect of the order rejecting plaintiff's "claim" in case No. 784 was not that his claim as owner should be rejected, but that his claim as mortgagee to have the land sold subject to his mortgage should be rejected; and that the order so made was conclusive only as regards the proceedings had in case No. 784, and did not go beyond the limits of the execution affected in that case. He ordered that judgment be entered as against the third defendant, as well as against the first and second defendants.

The third defendant appealed.

Bawa, for appellant.

Sampayo, for respondent.

31st May, 1898. Lawrie, J.-

The lands were mortgaged by the first and second defendants to the plaintiff. The mortgage bond was registered. On a writ by a third party against the first and second defendants the lands were seized.

It is recorded that the plaintiff claimed " the lands," but that probably is a mistake in fact, for in the claim he ascribed his title to the mortgage bond.

I think it is plain that what the plaintiff meant to do was to intimate to the Court and to any intending purchasers the fact of the existence of the mortgage. It may be that the plaintiff was u

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