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SALOHAMY v. WEERASEKERA
NLR11V36
Present: Mr. Justice Wendt.
SALOHAMY v. WEERASEKERA et al.
C. R., Matara, 4,268.
Mortgage debt-Seizure-Procedure-Seizure and sale of land mortgaged-
Civil Procedure Code, s. 229.
S was the usufructuary mortgagee of a certain property. On a writ of execution issued against him the Fiscal purported to sell and convey to the purchaser H the property itself; the mortgage debt itself was not seized in the manner required by the Code, and there was no mention of it in the Fiscal's conveyance,-
Held, by WENDT J., that the
right to recover the mortgage debt did not pass by the sale; and that the heirs
of S were entitled to be paid the amount of the said debt in
preference to the heirs of H.
WENDT J.-The seizure of a mortgage debt should be effected in the manner prescribed by section 229 of the Civil Procedure Code.
Bastianpillai v. Anapillai
1
followed.
THIS
was an interpleader action. Don Luis Abeyadeera Warna, warna, who was the owner
of 13/16th shares of a land, mortgaged it by bond No. 141 dated September 8,
1849, to Salaman de Silva Abeyaratne Weerasekera. On a writ issued against the
said Salaman de Silva Abeyaratne Weerasekera, in case No. 24,512 of the Village
Tribunal of Wellaboda pattu, the said shares were sold on the footing that he
was the owner thereof, and were purchased by Hendrick Dias Abeyaratne
Weerasekera, who obtained Fiscal's transfer No. 4,013/24,512 dated August 31,
1893, and who is represented in this action by the 9th, 10th, and 11th
defendants. The heirs of the said Don Luis Abeyadeera Weerawarna, by deed No.
22,672 dated July 14, 1873, sold the said property to Sellahewagey Don Dines,
who sold it to the plaintiff. The plaintiff brought the amount due on the said
mortgage bond No. 141 dated September 8/1849, into Court, and prayed for a
decision whether the heirs (1st to 8th defendants) of the said mortgagee, or the
heirs (9th to 11th defendants) of the said Fiscal's purchaser, were entitled to
the money.
The Commissioner (G. F. Plant, Esq.) held that
the heirs of the mortgagee (1st to 8th defendants) were entitled to the money.
His judgment was as follows: -
" The issue in this case is one of law. The
facts are admitted. Pokunebodawatte belonged to Don Luis. He mortgaged it with
Salaman; in 1849 Salaman possessed. In 1893, under writ against him, the land
was sold by the Fiscal. The purchasers obtained a Fiscal's conveyance and
entered into possession. Meanwhile the
1 (1901) 5 N. L. R. 165.
heirs of Don
Luis sold the property to Don Dines, who sold to plaintiff. Plaintiff
now tenders into Court the amount of the mortgage debt, and prays
that the mortgage be redeemed.
" The question is, Are Salaman's heirs entitled
to the mortgage money, or are the heirs of the purchaser at Fiscal's sale
entitled? Mr.Jayatilaka appears for Salaman's heirs. Mr. Keuneman appears for
the heirs of the purchaser under writ.
" Mr. Keuneman argues that the Fiscal sold all
Salaman's title to the land. Salaman was entitled as mortgagee, therefore the
Fiscal's transfer conveyed Salaman's rights as mortgagee.
" Mr. Jayatilaka urges that Salaman's rights as
mortgagee could only be sold by regular procedure under section 229 of the Code;
the mortgaged debt must be seized in the manner laid down in that section. That
was not done. Therefore the mortgage debt did not pass at the Fiscal's sale. Mr.
Jayatilaka quoted the decision reported in 2 Browne 117-124. I think that
decision governs this case, and Mr. Jayatilaka's clients are bound to succeed.
The land
itself was seized and sold; there was no mention of the mortgage debt. In fact,
at the time it was thought that the land was Salaman's absolute property, and it
was not known (it had been forgotten between 1849 and 1893) that Salaman held
s
