PUNCHI KIRA v. SANGU et al.

PUNCHI KIRA v. SANGU et al.

C. R., Galagedara, 1,052.

Hypothecary action-Civil Procedure Code, at. 640-642.

A hypothecary action is not properly constituted unless the mortgagor, if ho is alive, is a party. If he is dead, his executor or administrator must be made a party, or some person appointed by the Court to represent his estate.

Per Bonser, C.J.-At the time of the passing of this Code the law was that the mortgagee was entitled to two actions upon the mortgage bond: a personal 'action against the mortgagor for the debt, and secondly, the actio quasi Serviana, commonly called an hypothecary action, against the land to have the land sold for the purpose of realizing the debt; and when the mortgagor was in possession of immovable property he might bring both the personal and the hypothecary action simultaneously and join them in one libel. If the property was in the hands of a thud person-if, for instance, the mortgagor had sold the land-then the mortgagee had the choice of suing the debtor by the personal action, or the person in possession of the property by the hypothecary action, and he could sue them in any order he pleased.

But section 640 of the Civil Procedure Code plainly intended to alter that procedure. It took away the right of suing a third person in possession of the property by the hypothecary action without joining the mortgagor for it, and provided that in every hypothecary action the mortgagor must be joined as a defendant, whether he is in possession or not of the property mortgaged at the time of the action.

Scope of sections 641 and 642 explained.

THE plaintiff sued the defendants for the recovery of a sum of Rs. 140 due on a mortgage bond dated 18th December, 1878, executed in his favour by one Hawadia, deceased, who was the father of the first, second, and third defendants; and the plaintiff claimed a further sum of Rs. 50 as damages in consequence of the fourth and fifth defendants having forcibly ousted the plaintiff from the mortagaged field, of which the plaintiff alleged he was in possession. The defendants denied the execution of the mortgaged bond and the plaintiff's possession of the mortgaged field and pleaded prescription. The Commissioner entered judgment for the plaintiff, holding that the bond was executed by Hawadia; that as the plaintiff was a usufructuary mortgagee the bond was not prescribed; that Rs. 140 were due as principal from the first, second, and third defendants, as heirs of Hawadia; and that Rs. 50 were due from all the defendants as damages arising from the ouster.

The decree entered in the case was as follows:-" It is ordered " and decreed that the plaintiff do recover from the defendants the " sum of Rs. 190. It is further ordered that the defendants do pay " to the plaintiff the costs of this action Rs. 32.25, and it is further

" decreed that the property mortgaged to the plaintiff, &c., be " declared bound and executable," &c. The defendants appealed.

Maartenz, for appellants.-The irregularity in procedure in this case is fatal. No representative has been appointed to represent the estate of the deceased mortgagor as required by section 642 of the Civil Procedure Code. The action is not maintainable, because the mortgagee plaintiff has failed to apply to the Court to appoint an administrator to the estate of the deceased mortgagor, nor has the Court been moved to appoint some person to represent the estate for the purpose of the present action. The case of Kannappa Pattiriani v. Canapathi Pulle (D. C, Batticaloa, 1,798), decided on 28th November, 1898, is on all fours with the present case.

H. Jayawardena, for respondent.-The appointment of a representative is not absolutely necessary. It is a matter left to the discretion of the Court. Silva v. Fernando (3 N. L. R. 15). No objection was taken in the Court below to the want of representation; and Mr. Justice Lawrie pointed out in Mudianse v. Mudianse (2

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