Mohotte V. Dissanayaka Et Al.,

Present: The Hon. Mr. J. P. Middleton, Acting Chief Justice,
and the Hon. Mr. Justice Grenier.

MOHOTTE v. DISSANAYAKA et al.

D. C, Tangalla, 942.

    Mortgage-Seizure of mortgaged land under money decree-Prior registration of seizure-Mortgage unaffected-Form of mortgage decree.

A registration of a seizure of land under a money decree, in terms of section 237, Civil Procedure Code, does not affect a mortagage of the same land which was executed by the judgment-debtor prior to the seizure, and which was registered after the registration of the seizure.

A decree ordering specially mortgaged property to be sold in default of payment of the money decreed to be due under the mortgage renders the mortgaged property " bound and executable."

APPEAL from a judgment of the District Judge of Tangalla. The facts are fully set out in the judgment of Middleton J.

H. A. Jayewardene, for first defendant, appellant.-Section 17 of Ordinance No. 14 of 1891 does not apply to seizures. The effect of registration of a seizure is merely no render void, as against all claims enforceable under the seizure, all private alienations, &c, after the seizure (Civil Procedure Code, section 238). [Registration of a seizure under a writ does not affect mortgages executed prior to the seizure, though unregistered at the time of seizure. Counsel cited Fernando v. Fernando,1 In re Carter.2

De Sampayo, K. C., for respondent.-Ordinance No. 14 of 1891 contemplates the registration of seizures as well. That Ordinance makes provision for the registration of judgments and orders. Seizures may be classed among " orders ". The decree in this action is not a mortgage decree. It does not declare the mortgaged property "bound and executable".

Counsel cited 2 Maasdorp 298, 2 Nathan 970, Berwick's Voet 442 (20, 5, 3).

Cur. adv. vult.

February 11, 1910. MIDDLETON A.C.J.-

In this case the first defendant obtained a mortgage from Dona Cornelia of a half share of the property in question by deed No. 4,008 dated May 23, 1895, registered only on December 1, 1902. On October 12, 1902, a one-third share plus one-fourth of one-sixth share of the property in question was seized for a judgment debt of Dona Cornelia and her husband under a writ dated October 12, 1902, but registered on November 12, 1902. Upon this writ a sale took

1 (1906) 9 N. L .R. 1.
2(1837)2 Menzies' Reports 335.

place to the second defendant, and a Fiscal's transfer dated , and registered May 6, 1903, was issued in second defendant's name. The first defendant brought an action on his mortgage , bond on December 18, 1902, and obtaining a decree on January 16, 1903, seized the property on August 31, 1903. It was sold on December 21, 1903, to one Don Andris, and a Fiscal's transfer dated January 14, 1904, was issued, registered on June 15, 19041 Don Andris sold it to the first defendant on May 7, 1905, the sale being registered on December 4, 1907. The first defendant sold to the plaintiff on May 14, 1905, the sale being registered on May 4, 1907. This action was brought by the plaintiff to obtain a declaration of his title as against the second defendant, and the first defendant was brought in to warrant and defend the same, or to refund the purchase money. The issues settled were as follows: -

(1) Is the title of first defendant based on his Fiscal's transfer to be preferred to that of the second defendant based on his Fiscal's transfer?

(2) Is second defendant estopped by reason of steps taken in C. E., Matara, 2,474, from disputing first defendant's title?

(3) Was decree obtained in C. E., Matara, 2,474, valid in respect of premises conveyed?

(4) Has second defendant been in possession since November 15, 1902 (date of Fiscal's sale to him)?

(5) Damages agreed at Rs. 20 a year.

The District Judge on the first issue held that the second defendant's title was to be preferred. He answered the 2nd and 3rd issues in the neg

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