Rowel V. Jayawardene

Present: Middleton J and Wood Renton J.   July.28,1910

ROWEL et al v. JAYAWARDENE.

81-D. C. Chilaw, 4,138.

Address furnished to the Registrar of Lands by primary mortgagee and puisne incumbrancer-Action by primary mortgagee on the mortgage bond with notice to the puisne incumbrancer-Hypothecary decree binding on the, puisne incumbrancer-Civil Procedure Code, ss. 237, 613, 044.

Where (he primary mortgagee and puisne encumbrance had both failed to comply with the provisions of section 644 of the Civil Procedure Code as to furnishing an address to the Registrar of Lands for notice, and where the primary mortgagee brought a hypothecary action on the bond and gave the puisne encumbrance full notice of the action and the puisne encumbrance failed to intervene in the action,-

Held, that the puisne encumbrance was bound by the hypothecary decree.

THE facts of this case are fully set out in the following judgment of the District Judge (T. W. Roberts, Esq.): -

" The property in dispute was mortgaged by its owner in 1900. In March, 1906, the defendant, an unsecured creditor, seized the properly in execution of his money decree and himself bought it at the sale held on June 23, 1906.

" On July 5, 1906, the mortgagee put his bond of 1900 in suit, in case No. 3,571, D. C. Chilaw.: In execution under writ issued in that case the property was sold to the plaintiff' in 3,571 in August, 1906, and he subsequently conveyed it to the present plaintiffs.

" The question is whether defendant is bound by the decree in case No. 3,571. It was contended for plaintiffs (1) that the defendant's purchase was explicitly subject to the mortgage of 1900; (2) that the seizure in defendant's interest of March, 1906, was not a deed of incumbrance, and the date at which the owner and mortgagor was divested of and the defendant invested with the title to the property was subsequent to the institution of the mortgage action, and could not on the principle of lis pendens affect the interests of the parties to that action.

" The first contention is categorically negatived by the decision reported on the 139th page of the New Law Reports, vol. XII.

" The second is partly a misrepresentation, in that the seizure was certainly an act creating certain rights in the property. As such it was capable of being, and was in fact, registered. As such it was a deed of incumbrance.

" Even if that were not so, the sale occurred before the mortgage action was instituted, and the decision in S. C. 305, C. R. Balapitiya, is precisely in point on the facts with the present case, and is against the plaintiffs' contention.

'" The decisions are numerous and particularly decisive, that the leaving of his address with the Registrar of Lands is a condition precedent which a primary mortgagee must fulfil before his decree can without notice bind puisne incumbrancers. It is admitted that the plaintiff left no address. He omitted, that is to say, to do what it lay on him to do, viz., to give the purchaser at the sale on defendant's writ the opportunity of notifying him of his purchase or subsequent incumbrance. It follows that the argument was unsound in its denial of the necessity of notice.

'" The next point was the sufficiency of the notice given. Notice was in fact given to the defendant at the time of the issue of summons in D. C. 3,571. The plaintiff is uncertain whether a copy of the summons accompanied that notice or not, and asked the Court to presume that it did from the fact of the motion made in that case (P 1). The presumption does not arise that the proctor for plaintiff in 3,571 did what he ought to have done; the record does not mention any issue of any copy of the summons, and the presumption is rather the other way. The fact of issue of a copy of the summons to defendant is a fact the burden of proving which pay on the plaintiffs. So it has been ruled express]}' in exactly similar circumstances (3 Balasingham 227

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