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 July 16, 1910, ordered the land to be sold. On July 21, 1910, Agnes Abeykoon and Thomas Wanigesekere, together with two others who were no parties to the partition action and admittedly had no interest in the land, mortgaged the entire land to the plaintiff, but the plaintiff admits in this action that the mortgage was effective only as to an individual half of the land, being the shares to which Agnes Abeykoon and Thomas Wanigesekere were entitled. In pursuance of the decree for sale in the partition action, the land was sold on October 22, 1910, and was purchased by Thomas Wanigesekere himself, and a certificate of sale was issued to him by the Court on March 7, 1912. Before the issue of the certificate, however, Thomas Wanigesekere, as purchaser of the land, sold it on January 28, 1912, to Peter de Saram, who by conveyance dated July 16, 1912, in which Thomas Wanigesekere joined, sold it to the present defendant. In the meantime the plaintiff on March 27, 1912, put the mortgage bond in suit against his mortgagors, and having obtained judgment seized the land in executon on January 24, 1913, when the defendant claimed the same. The claim being upheld, the plaintiff brings the present action, under section 247 of the Civil Procedure Code, to have it declared that an undivided half of the land is liable to be seized, and sold under his mortgage decree.

Bawa, K. C. (with him Bartholomeusz), for the defendant, appellant.

A. St. V. Jayewardene, for the plaintiff, respondent.

December 9, 1913. Ennis J. -

The question for determination in this appeal is whether a mortgage of land executed after decree under section 4 of the Partition Ordinance and prior to a sale there under has any effect as against the purchaser at the sale. The facts of the case are fully set out in the judgment of the learned District Judge, who held that the mortgage was not obnoxious to section 17 of the Partition Ordinance, No. 10 of 1863, on the ground that the decree under section 4 of the Ordinance, and not the certificate of sale, was the final judgment in the case, and that the partition action was accordingly not pending when the mortgage was executed.

Section 9 of the Partition Ordinance provides that the decree for partition or sale given as hereinbefore provided shall be good and conclusive against all persons. Decrees for partition or sale are dealt with in section 4, and by section 6 decrees for partition are not absolute until final judgment has been entered. As regards decrees for sale, section 8 makes no express provision for a final judgment, but after providing for a sale and payment into Court, it concludes that " the " certificate of the Court shall be evidence of the title of the purchaser. The Ordinance, however, contains no pr