Weerappa Chetty V. Arunaselam Chetty

Present: Mr. Justice Wendt and Mr. Justice Middleton.

WEERAPPA CHETTY v. ARUNASELAM CHETTY.

D. C., Badulla, 2, 102.

Mortgage-Purchaser subsequent to mortgage-Non-joinder in action- Effect of decree--Failure on the part of mortgagee to furnish address to the Registrar-Omission on the part of subsequent purchaser to give notice-Civil Procedure Code, (Ordinance No. 2 of 1889), Chapter XLV1.

Held, that before a mortgage decree can have the conclusive effect given to it by section 644 of the Civil Procedure Code, it must be clearly proved that the mortgagee has complied with the first proviso to that section, and left an address with the Registrar of Lands for service of notices. Peiris v. Weerasinghe 1 followed.

Held, also, that the description of the mortgagee given in to the Registrar at the time of registration of the bond, and entered by him in the Register of Encumbrances, is not such an address as is required by section 644 of the Civil Procedure Code,

ACTION rei vindicatio. The plaintiff sued the defendant to recover certain shares of lands. The said shares originally belonged to one Annamalay Chetty, who by deed No. 2, 145 dated May 10, 1894, sold them to Palaniappa Chetty and Caruppen Chetty. Palaniappa Chetty by deed No. 2, 481 dated May 2, 1896, and registered on June 15, 1896, sold his undivided half share to the plaintiff; and Caruppen Chetty by deed No. 2, 501 dated June 6, 1896, and registered on June 15, 1896, transferred his half share also to the plaintiff. The plaintiff, alleging that the defendant was in unlawful possession of the said shares of lands, claimed a declaration of title in his favour and also damages.

The defendant, while admitting that Palaniappa Chetty and Caruppen Chetty were the owners of the land as alleged in the plaint, averred that the said Palaniappa had by bond No. 2, 275 dated April 22, 1895, and registered on May 1, 1895, mortgaged the said lands to the defendant's attorney, Kulandavelu Chetty; that the said bond was put in suit in April, 1897, incase No. 1, 301 of the District Court, of Badulla. and decree obtained on March 31, 1904; that the said lands were sold by the Fiscal on November 12, 1904, in execution of such decree and purchased by the defendant, who obtained Fiscal's transfers Nos. 2, 102, 2, 103, 2, 104, 2, 105, 2, 106, 2, 107, and 2, 108, dated June 9, 1905, and registered on June 9, 1905. The conveyance (No, 2, 481) by Palaniappa Chetty to the plaintiff

1 (1906) 9 N. L. R. 359.

was in express terms- made subject to the mortgage (No. 2, 275) in favour of Kulandavelu Chetty. It was admitted that the mortgagee, Kulandavelu Chetty, left no address with the Registrar of Lands beyond the description contained in the Register of Encumbrances.

The following issues were framed at the trial: -

(1) Is plaintiff in this action bound by the decree in D. C, Badulla, 1, 301 ?

(2) Damages.

The District Judge (W. A. G. Hood. Esq. ) held as follows (June 10, 1908): -

" 1. This is an action by a ' subsequent grantee ' for declaration of title to, and for possession of, certain lands previously mortgaged with defendant, who afterwards bought them at a Fiscal's sale under his mortgage decree in D. C, Badulla, 1, 301.

"2. The transfer to plaintiff and the mortgage bond to defendant were both registered, the latter having a year's priority.

"3. An agreement having been come to on the question of damages, the only issue left for my decision is, whether plaintiff, who was not a party to D. C., Badulla, 1, 301, is bound by the decree in that case. And this hinges entirely on the point whether an address given by defendant, the mortgagee, to the Registrar of Lands is such as to satisfy the requirements of section 644.

" 4. It is admitted that plaintiff furnished defendant with no address (as required by section 643); but he contends that defendant has failed to comply with the conditions of the first proviso to section

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