MEYAPPA CHETTY v. RAWTER.

MEYAPPA CHETTY v. RAWTER.

D. C, Chilaw, 2,216.

Mortgagees-Action by primary mortgagee against puisne incumbrancers-Civil Procedure Code, ss. 640 and 643-Ordinance No. 14 of 1891, s. 17.

There is nothing in the Civil Procedure Code to prevent a primary mortgagee joining a puisne incumbrancers as a defendant in his suit to realize his mortgage.

The plaintiff and the second and the third defendants were mortgagees of the first defendant. Plaintiff's mortgage was registered, but not that of the second and third defendants, who put their bond in suit and obtained a decree on 5th April,. 1900, which was registered on 16th October, 1900. The second and third defendants bought the land in execution of their decree, but the fiscal did not give them possession or a conveyance. The plaintiff had no notice of this suit, but, having knowledge of the mortgage in favour of the second and third defendants, which had become subject to his own by reason of the registration of his mortgage, sued the first defendant as mortgagor, and joined in the suit the second and third defendants also.

Held, that plaintiff exercised a wise discretion in joining them as puisne incumbrancers.

THE first defendant granted a mortgage bond to the second and third defendants in December, 1897. It was not registered. It was put in suit, and the second and third defendants obtained a decree against the first on 5th April, 1900. This decree was registered on 16th October, 1900. In execution of it the second and third defendants purchased the property.

The plaintiff, who was also a mortgagee of first defendant, and whose mortgage bond was duly registered, had no notice of that suit. On 25th September, 1900, he put the bond in his favour in suit against the first defendant and joined in it the second and third defendants also, though they were not in possession of the property.

The District Judge dismissed the plaintiff's action as against the second and third defendants.

Plaintiff appealed.

The appeal was argued on 23rd January, 1903.

Dornhorst, K.C., for appellant.-The plaintiff's mortgage, though subsequent in date to that of the defendants, is prior to it by registration. The property mortgaged has been bought by the first and second defendants. If plaintiff did not join them also in his action against the mortgagor, the result would have been that while the present case was pending they would have got their conveyance registered, and such registration would affect the plaintiff prejudicially. By his prior registration, the first and second defendants became puisne encumbrancers. Ex abundanti cautela, the plaintiff has brought his action against the

puisne incumbrancers. Sections 643 and 644 of the 'Civil Procedure Code necessitates the joining of secondary mortgagees. In the circumstances of the present case the plaintiff ought not to be prevented from safeguarding his interests by the procedure he has adopted.

Bawa, for the second and third defendants.-The plaintiff has no cause of action against the second and third defendants. They are not in possession. Unless the plaintiff has some ground of complaint against them, they should not be put to the trouble and expense of defending the suit. The mortgage in their favour is void as against him by reason of prior registration. He is entitled to disregard it altogether. The plaintiff has by force of law become a primary mortgagee, and the second and third defendants have become secondary mortgagees. They did not give him notice under section 243 of the Code. The Code does not contemplate a secondary mortgagee being joined at all. In practice such a procedure is unknown. Supposing a simple money decree-holder against the first defendant had bought the land, would the plaintiff have a cause of action against him?

Cur. adv. vult.

27th January, 1903. Layard, C.J.-

The admitted facts of this case are as follows:-The plaintiff and second and third defendants

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