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WIJEWARDEN v. SCHUBERT et al.
NLR10V90
[ In Review.]
Present
: Sir Joseph T. Hutchinson, Chief Justice, Mr. Justice
Wendt, and Mr. Justice Middleton.
WIJEWARDENE v. SCHUBERT et al.
D.C., Colombo, 20,475.
"'Azure-Recall of writ, effect of-Re-issue-Second seizure and sale under such seizure-Mortgage pending first seizure-Validity-Civil Procedure Code, s. 238.
Held, that where a writ is recalled a seizure made under it comes an end.
Where a writ under which property had been seized (the
seizure being duly registered) was recalled, but was subsequently re-issued, and
the property was seized again and sold by the Fiscal under such second seizure,
and where the judgment-debtors mortgaged the property pending the first seizure,
but before the second seizure,-
Held, that such mortgage was valid as against the purchaser at the Fiscal's
sale, his rights being derived not from the first seizure during the pendency of
which the mortgage was executed, but from the second seizure, which was
subsequent to the mortgage.
THE first and second defendants, being the owners of certain premises, mortgaged them to one Don Philip Wijewardene, Muhandiram, by bond No. 1,236, dated 21st December, 1901, and registered on 14th March, 1902, to secure a sum of Rs. 4,000 and interest thereon.
Writ having issued against the first and second defendants in D.C, Colombo, 14,558, at the instance of one Murugappa Chetty,- the said premises were seized by the Fiscal on 21st September, 1901, and the seizure was registered on 24th September, 1901; on 5th
the writ was recalled by the Court; and on 7th July, the order of 5th May, recalling the writ, was vacated, and writ was ordered to be re-issued: the property was seized again on 1st August, 1902, and sold on 9th September, 1902, and purchased by one Nelson, who having obtained Fiscal's transfer, dated 10th January, 1903, and registered on 16th January, 1903, sold the property to the third defendant by transfer dated 30th May, 1903, and registered on 10th June, 1903.
The mortgagee having died, his executrix sued the mortgagors on the bond and joined the third defendant as party in possession of the mortgaged property. The first and second defendants did not defend the action; but the third defendant pleaded that the mortgage bond was void, as it was executed pending a seizure which was duly registered. The Acting District Judge's (J. E. Weinman, Esq.) judgment on this point was as follows : -
" The plaintiff sues on a mortgage bond made by the first and second defendants in favour of her husband now dead. She sues as executrix.
" The mortgage bond was made on the 21st December, 1901, and registered on the 14th March, 1902.
" The third defendant purchased the land from one Nelson by deed No. 1,238 dated the 20th May, 1903 (D 4).
" Nelson purchased the land at a Fiscal's sale held on the 9th September, 1902, on a writ issued in case No. 14,558 of this Court against the first and second defendants. Nelson got this conveyance on the 10th January, 1903 (D 3).
"It is also clear that the seizure of the property under the writ which went out in case No. 14,558 was registered on the 24th September, 1901.
" So far the facts are admitted. The third defendant further says that at the date of the mortgage, i.e., 21st December, 1901, the property was under a seizure which had been duly registered. Undoubtedly the property was seized under writ in D. C, Colombo, 14,558, early in September, 1901, and such seizure was registered on the 24th September, 1901. On the 5th May, 1902, the writ was recalled and I take it that the recalling of the writ released the seizure and discharged the registration, for both were consequential on the issue of the writ. The sale to Nelson by the Fiscal was on the 9th September, 1902. It would not have been under the first seizure, for that seizure came to an end on the 5th May, 1902. In July, 1902, the plai
