MADAR LEBBE v. NAGAMMA.

MADAR LEBBE v. NAGAMMA.

D. C., Colombo, 12,719.

Mortgage decree in favour of plaintiff-Registration thereof after conveyance to defendant had been passed and registered-Merger of mortgage bond in decree.

Where plaintiff obtained a mortgage decree against S and seized certain property which defendant had bought at a Fiscal's sale as property belonging to S, and where defendant had registered the conveyance in her favour prior to plaintiff's registration of the mortgage decree,-

Held, that in an action brought under section 247 of the Civil Procedure Code, the plaintiff was not entitled to have the property made executable under his decree, as his mortgage decree was of no avail as against the defendant's conveyance, which had been registered before such decree was registered.

Government Agent v. Hendrikhamy (3 C. L. R. 86), not to be considered any longer as law.

THE plaintiff obtained a mortgage decree against one Samsudeen in case No. 11,910, and seized the property mortgaged. The defendant's claim to the property having been upheld, the plaintiff brought the present action against her under section 247 of the Civil Procedure Code for a declaration that the lands claimed by her be sold in execution of the plaintiff's decree against Samsudeen.

It appeared that Samsudeen's mortgage bond to the plaintiff was registered in May, 1897, and that the mortgage decree against him, dated November, 1898, was not registered till October, 1899. In the meantime the defendant, having obtained a decree against Samsudeen, caused the Fiscal to sell the land in dispute and bought it herself. The Fiscal's conveyance to her, dated August, 1897, was registered in September, 1899, a month before plaintiff registered his mortgage decree.

The Additional District Judge (Mr. F. R. Dias) dismissed the plaintiff's action in these terms: -

" From the ruling of the Appeal Court in 3 C. L. R. 86 (a case on all fours with the present one) it is clear that the Fiscal's transfer held by the defendant must prevail over the rights of the plaintiff to sell the land under his decree. The fact of his mortgage bond having been registered before the defendant's transfer does not affect the question in any way. It is merged in the decree, on which alone the plaintiff's rights depend.

" It has been urged that, as the defendant had no Fiscal's conveyances at the time she made her claim before the Fiscal, or at the time the Court inquired into her claim, she should not be allowed to improve her position by the documents since obtained. But a Fiscal's conveyance, no matter when it was actually issued, relates back to the date of sale, and even though at the date of her claim the defendant had not obtained her conveyances, she had the right to apply for and obtain them. That was a sufficient interest in the lands seized to entitle her to prefer a claim. The conveyances are only evidences of the defendant's right to the lands, and it does not matter in the least degree when they were obtained. Here they are, and they prove the defendant's title to the lands. The plaintiff asks for a declaration that the lands are now executable under his writ, but he can only have such relief if at the present moment his mortgagor has not been lawfully divested of his ownership. But he has been very effectually divested of title by the judicial sale and prior registration of the purchaser's conveyances."

Plaintiff appealed.

Sampayo (with him Van Langenberg), for appellant.-The case on which the District Judge relies (Government Agent v. Hendrikhamy, 3 C. L. R. 86) has been questioned by the Supreme Court in D. C, Galle, 5,041 (1 Browne's Reports, Appendix B, p. 11); also judgment of Lawrie, J., in D. C, Batticaloa, 2,072 (S. C. Minutes, 16th August 1901).

Bawa (with him H. J. C. Pereira), for defendant, respondent. -The plaintiff and the defendant claim from the same source. It is open to the plaintiff to make this land execut

Click Here to Read the rest of this document