Present;. Ennis J. and De Sampayo A. J.

PERERA v. ALVIS.

389-D. C. Colombo, 36, 324.

Partition action-Mortgage of land after decree for sale-Mortgage is invalid as against the purchaser under the, decree for sale.

A mortgage of land executed after decree for sale under section 4 of the Partition Ordinance and prior to the sale there under has no effect as against the purchaser at the sale.

Section 12 of the Ordinance, which enacts that nothing in the Ordinance shall affect the right of any mortgagee of the land which is the subject of the partition or sale, refers to a mortgage effected prior to the commencement of the action, for section 17 expressly prohibits the mortgage of an undivided share during the pendency of the action.

THE facts are stated as follows by De Sampayo A. J.: -

This appeal raises the question whether the mortgage bond in suit in case No. 34, 136 of the District Court of Colombo is valid in law as against the defendant. It appears that a certain land belonged in common to four persons named Agnes Abeykoon, Julia Abeykoon, Thomas Wanigesekere, and Stephen Abeykoon, and in an action for partition the Court by its. decree dated