Present: De Sampayo J.

WIJESEKERA. v. RAWAL.

26-C. R. Chilaw, 15,704.

    Mortgage-Can mortgagee sell other property before selling mortgaged property ?

Even where a decree on a mortgage merely declares the property Round and executable, and does not specially direct the mortgaged property to Re sold in default of payment of the debt, the creditor should first realize the mortgage, and can resort to the other property only for any deficiency, unless the debtor consents otherwise.

THE facts are set out in the judgment.

Asserappa, for plaintiff, appellant.

Sansoni, for defendant, respondent.

Cur. adv. vult.

February 28, 1917. DE SAMPAYO J.-

This appeal raises an important and, so far as I know, new point in the law of mortgage. The original plaintiff, who sued on a mortgage bond, assigned the decree to the appellant, who has been substituted as plaintiff on the record. On the application of the appellant a writ of execution was issued to the Fiscal, Rut the appellant subsequently moved that the Fiscal Re directed to sell property other than the specially mortgaged property. This motion was opposed by the second defendant, who had granted the mortgage, and the Commissioner disallowed it.

It is contended on behalf of the appellant that he is entitled to sell the property of the judgment-debtor in any order he may choose. This no doubt is so in the case of an ordinary decree. It is also true

where several properties are mortgaged, the mortgagee may well sell these properties in any order he pleases. (Wickremesinghe v. Punchi Nona.1[1 (1912) 2C.A.C. 43]) Rut has he a similar right to sell unmortgaged property before exhausting the mortgaged property ? No local decision on this question has been cited to me, nor can I find any. The argument on behalf of the appellant is that, as the decree for the realization of a mortgage includes also a decree for money, the ordinary incidents of a decree for money arise. It seems to me, however, that there is a broad distinction between the two cases in regard to the mode of execution, and that the question must Re decided upon other considerations. There would have been no difficulty if the decree in this case had followed the form which has been generally adopted since the enactment of the Civil Procedure Code, for then the decree would have directed that in default of payment of the dept the mortgaged property should Re sold and the proceeds applied in and towards the payment of the amount of the debt, and in the event of such proceeds not being sufficient for the payment in full of such amount, the judgment-debtor should pay the deficiency, with interest, until realization. If a mortgage decree is in that form, I think that the mortgaged property must first Re realized, unless, perhaps, there is some good reason to the contrary, such as lawful claims of third parties, in which case, no doubt, the Court will give further directions. Rut the decree in this case is in the well-known form of decree whereby the mortgaged property is declared specially Round and executable, and contains no particular directions as to its sale. This, I may say, is the proper form of mortgage decree under the Roman-Dutch law, which, `subject to certain modifications irrelevant to the present case, is still applicable here, and Mohotte v. Dissanayalte,2[2 (1910) 13 N. L. R. 70.] so far from considering that form of mortgage decree to Re no longer applicable, held that an order for sale in terms of section 201 of the Civil Procedure Code was a substantial compliance with it. The question, therefore, is whether it is open to the mortgagee, in the first instance, to seize and sell other property than the property mortgaged, and by the decree declared specially Round and executable. Voet 20, 1, 15 discusses the case of a creditor who has a special mortgage of some property, and also a general mortgage of the other property of the debto