Present: Mr. Justice Wood Renton and Mr. Justice Grenier.

SILVA v. SILVA et al* [ Reported by Mr. H. A. Jayewardene, during his editorship.]

D. C, Galle, 8,893

    Mortgage-Sale of mortgaged property by mortgagor to mortgagee in satisfaction of mortgage debt-Prior registered seizure-Revival of rights under mortgage-Civil Procedure Code, s. 238.

Where a mortgagee purchased the property mortgaged by private sale and discharged the bond, and where such purchase was invalidated under section 238 of the Civil Procedure Code, by reason of a prior duly registered seizure under another creditor's
writ,-

Held, that the mortgagee was entitled to fall back on the mortgage and enforce his rights under it.

Gopal Sahoo v. Gunga Pershad Sahoo 1[1 (1908) 10 N. L. R. 351.] followed.

APPEAL by the second defendant from a judgment of the District Judge in favour of the plaintiff. The facts are fully set out in the judgments.

Bawa (Sansoni with him), for the second defendant, appellant.

De Sampayo, K. C, for the plaintiff, respondent.

Cur. adv. vult.

October 18, 1909. WOOD RENTON J.-

On November 17, 1904, the first defendant mortgaged five lands to the respondent. On June 13, 1906, the respondent, by a notarial endorsement on the bond, discharged the mortgage and took a conveyance from the first defendant of the lands in question, the consideration being the amount of the mortgage debt. Meanwhile, however, viz., on June 5, 1906, four out of the five lands had been seized in execution by the judgment-creditor of the first defendant (in case No. 7,522, D. C, Galle). That seizure was registered on June 12, and the lands having been sold in execution, the second defendant-appellant, as execution-purchaser, obtained Fiscal's transfers-afterwards duly registered-in pursuance of the sale. There is no doubt (see section 238 of the Civil Procedure Code)- and the respondent admits-that the registration of the seizure on June 12 avoids the conveyance to him on June 13, 1906. But he claims that he is thereby entitled to fall back upon, and enforce his rights under, the mortgage of November 17, 1904. The learned District Judge has upheld this contention, and I think he is right. The case of Gopal Sahoo v. Gunga Pershad Sahoo2[2 (1882) I. L. R. 8 Cal. 530.] appears to me to

be in point, and I think that we ought to follow it. Mr. Bawa argued that that case differed from the present, inasmuch as here the mortgage debt had been discharged by the notarial endorsement, and the seizure affected only four out of the five lands included in the conveyance of June 13, 1906. But the discharge is merely prima facie evidence of the satisfaction of the mortgage debt (cf. Mohamadu Cader v. Lourensz1), and, having been granted in ignorance of the seizure, does not prevent the revival of the claim under the mortgage bond. I agree with my brother Grenier that the appellant cannot now be allowed to raise the point that the conveyance of the fifth land, which is not seized, may have been accepted by the respondent as a satisfaction of the mortgage debt. In Gopal Sahoo v. Gunga Pershad Sahoo2 where, as here, it was the execution-purchaser alone who defended the suit, the Calcutta High Court held that, whether or not the subsequent conveyance had, as alleged by the plaintiff, been cancelled, it was absolutely void as against the execution-purchaser. I would apply that reasoning here.

On the other points in the case I have little to add. I agree with my brother Grenier (1) that fraud is not made out (2) that there is sufficient proof of consideration to satisfy the ratio decidendi in such cases as Ahamado Lebbe Markar v. Luis,3 and (3) that there is no estoppel by " standing by " within the meaning of such cases as D. C, Batticaloa, 16,673,4 and Sadris Appu v. Cornells Appu.5
I would dismiss the appeal with costs.

GRENIER A.J.-

In this case the plaintiff averred that the first defendant, the