FONSEKA v. PEIRIS et al.

FONSEKA  v.  PEIRIS  et  al.

 D. C, Kalutara, 2,350.

Hypothecary action-Action by mortgagee against mortgagor of land and parties in possession.

    The plaintiff, as mortgagee, sued the mortgagor on his bond, and joined in the same plaint the second, third and fourth defendants as parties in possession. The second defendant claimed under, and third and fourth defendants adversely to, the mortgagor.

    Held, that such an action was maintainable, and that a mortgagee who seeks a decree rendering the mortgaged property specially bound and executable for the debt is entitled to sue a party in possession of the land and claiming to be the owner of it, even though he denies the right of the mortgagor to hypothecate it.

    THE plaintiff on a mortgage bond dated 12th January, 1896, sued the first defendant as mortgagor, and the second third and fourth defendants were joined as parties to the

action for the reasons stated in paragraph 4 of the plaint, viz.:-

    " The second defendant subsequent to the aforesaid mortgage is now in possession of the said portion of land, excluding a small portion on the north, to wit, the portions A and B, and the third and fourth defendants are now in the possession of the said small portion on the north marked A and B, claiming the same adversely to the first and second defendants, and they have thus rendered themselves liable to be sued in this action in order that the plaintiff may obtain a valid and effectual decree declaring the lands and premises mortgaged as aforesaid bound and executable for the plaintiff's debt."

    The plaint prayed that the first defendant be ordered to pay plaintiff the debt with interest, and that the mortgaged land be declared especially bound and executable for the said debt.

    The first defendant, the mortgagor, filed no answer.

    The second defendant in his answer claimed title to the land by purchase at a Fiscal's sale on 28th June, 1900, but pleaded that he had no objection to the land being sold for realizing the money due on the bond, and that the sum realized in excess of plaintiff's claim should be paid to him.

    The third and fourth defendants pleaded that the plaint disclosed no cause of action against them, and that they were improperly joined. They also specially denied that they were in possession of land belonging to the first or second defendant. For a further answer they claimed title to portions A and B by deed No. 13,596, dated 21st November, 1900.

    At the trial, the issue of law was first discussed, viz., whether the action was maintainable against the third and fourth defendants.

    The learned District Judge decided in the affirmative, and proceeded to try the following issue:?Was plaintiff-mortgagor entitled to the portions marked A, B, C and Z, excluding X and the portion coloured yellow as shown in plan filed?

    The counsel for the third and fourth defendants declined to take part in the trial of this issue, and judgment was entered for plaintiff against all the defendants, and costs of the plaintiff ana second defendant were ordered to be paid by the third and fourth defendants. The second defendant was declared entitled to the sum realized in excess of plaintiff's claim and costs.

    The third and fourth defendants appealed.

    De Mel, for appellants.-The plaintiff has misconceived his action. Even if the action is maintainable, we have been wrongly joined. This is a personal action against the mortgagor and an

hypothecary action against the land. It is only possible to combine the personal and hypothecary actions when the mortgagor is in possession at the date of action. The plaint admits that the mortgagor is not in possession, and therefore the action fails. [Middleton, J.-What action should the plaintiff bring?] He could bring a personal action against the first defendant, or, what is more appropriate, proceed by the hypothecary

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