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PONNUSAMY v. VEERAGATTIPILLAI et al.
NLR13V269
Present : The Hon. Sir Joseph
T. Hutchinson,
Chief Justice and Mr. Justice Middleton.
PONNUSAMY v. VEERAGATTIPILLAI et al.
D. C, Jaffna, 6,799,
Ship-Person effecting repairs acquires no
maritime lien-Cannot enforce a claim against ship after sale to third
parties-Ordinary lien- Constructive possession-Delivery of ship by order of
Court.
A person who has effected repairs to a ship acquires only an ordinary lien and
not a maritime lien for the cost of the repairs, and he loses his right to
enforce his claim against the ship after he gives up possession of the ship.
THE
facts are set out in the judgment of the Chief Justice.
Sampayo, K.C. (with him Talaivasingham), for first defendant,
appellant.
H. A. Jayewardene (with him Balasingham), for plaintiff, respondent.
Cur. adv. vult.
July 22, 1910. HUTCHINSON C.J.-
The second defendant was the owner of a sailing vessel, and the Plaintiff
was the tindal employed by him on the vessel. The plaintiff in his plaint
alleges that in May, 1908, the vessel was unseaworthy and required repairs,
which he executed at his own cost at the request of the owner, who was not able
to raise the necessary money; that on February 16, 1909, he obtained judgment in
action No. 6,077 of the District Court of Jaffna against the second defendant
for Rs. 899.23, the cost of the repairs; that he issued a writ on his judgment
under which he seized the vessel, when the first defendant claimed it, and the
claim was upheld on August 6, 1909, whereupon the plaintiff brought this action
on August 18, 1909; that the second defendant, acting in collusion with the
first defendant with intent to defraud the plaintiff, transferred the vessel to
the first defendant for a sum much below its value on August 22, 1908, during
the pendency of action No. 6,077; and that his decree in that action is still
unsatisfied. He claims (a) that the vessel be declared liable to be seized and
sold under the writ in action No. 6,077; and (b) that the transfer to the first
defendant be declared void as against the plaintiff's claim.
The first defendant in his answer denies that the vessel was unseaworthy or
required repairs or that the plaintiff expended any money in its repairs so as
to acquire a legal hypothec on it; and denies any collusion or that the transfer
to him was fraudulent or for a lower value than the vessel was worth; and he
says that by deed dated March 17, 1906, the vessel was mortgaged to him by the
second defendant for Rs. 5,000 and interest; that in action No.5,986 of the
District Court of Jaffna he sued the second defendant on the mortgage bond and
recovered judgment for Rs. 6,142 on August 18, 1908; and that the second
defendant by deed dated August 22, 1908, transferred the vessel to him in
satisfaction of the sum so decreed, which was a fair price for it.
There were issues as to whether the transfer to the first defendant was made in
collusion with the second defendant in order to prevent the plaintiff recovering
his debt, and as to whether it was for valuable consideration. The District
Judge found on those issues in favour of the defendants, and that finding is not
disputed. There was also an issue whether the plaintiff's decree in No. 6,077
was res judicata; but it was not a decree in rem, and was not res judicata as
against the first defendant, who was no party to it. The issues with which we
are concerned were: (1) Is the vessel subject to a legal hypothec for the amount
decreed in No. 6,077 ? (3) Is it bound for the amount so decreed?
The decree in No. 6,077 was only a personal decree for money against the second
defendant. The first defendant was not a party to it; and we should therefore
treat the first issue as being: Whether the vessel is subject to a legal
hypothec for the amount expended by
the plaintiff on repairs? And with regard to
the words " legal hypothec," since the law to be applied is, in accordan
