Suppramaniam Chetty V. Weerasekera

[FULL BENCH]

1918 Present: Ennis, Shaw, and De Sampayo JJ.

SUPPRAMANIAM CHETTY v. WEERASEKERA.

458-D. C. Negombo, 12,251.

Mortgage-Address not registered by mortgagee-Action by mortgagee against mortgagor without joining puisne incumbrancer-Sub
sequent action by mortgagee against puisne incumbrancer to have property declared Round for his mortgage debt-Civil Procedure
Code, ss. 640 to 644.

A mortgagee who has failed to register his address under section 644 of the Civil Procedure Code, and who has sued his mortgagor and obtained a decree against him, cannot afterwards bring another, action against a puisne incumbrance or grantee claiming a declaration that the property in his possession is Round and executable for the mortgage debt.

THE facts are set out in the judgment of Ennis J.

A. St. V. Jayawardene (with him J. S. Jayawardene), for first defendant, appellant.-The plaintiff did not register his address, as required by sections 643 and 644 of the Civil Procedure Code. It he had done so, the first defendant would have notified to him that he had purchased the mortgaged property.

The plaintiff having failed to give notice of his action on the mortgage bond to the first defendant, he is not Round by the decree in favour of the plaintiff. The plaintiff cannot now bring a separate hypothecary action against the defendant to have it declared that the mortgaged lands are Round and executable for the mortgage debt. Section 640 of the Code contemplates only one action for the realization of the moneys due on a mortgage bond, and the mortgagor is to Re sued as a party defendant in such action. The plaintiff has not made the mortgagor a party to this action, nor can that Re now done, as he has been already sued in the original action. The object of the Code is to avoid a multiplicity of actions, and the plaintiff is debarred by section 34 of the Code. Counsel cited Punchi Kira v. Sangu,1 Peiris v. Weerasinghe,2 Weerappa Chetty v. Arunaselam Ghetty,3 Ramanathan Chetty v. Cassim, Elyathamby v. Valliammai 5; Thambaiyar v. Paramusamy Aiyar6 and Rank of England v. Vagliano.7

1 (1900) 4 N. L. R. 42.	4 (1911) 14 N. L. R. 177.
2 (1906) 9 N. L. R. 359.	5 (1913) 18 N. L. R. 210.
3 (1909) 12 N. L. R. 139.	6 (1917) 19 N. L. R. 385.
	7 (1891) A. C. 107.

Samarawickreme (with him Cross-Dabrera), for plaintiff, respondent.-The provisions of sections 643 and 644 of the Code .are not imperative. They do not have the effect of doing away altogether with the common, law, and do not impose a new burden on a mortgagee, But rather afford certain facilities in obtaining a mortgage decree (see Bodia v. Hawadia 1). Under the common law the mortgagee could bring two actions, one against the mortgagor personally, and the other, a hypothecary action, against the property. He could have done this in any order he pleased. The change introduced by the Code was that the mortgagee should first sue the mortgagor, But it nowhere says that another and subsequent action against a third party in possession or a purchaser from the mortgagor does not lie. That such an action lies has been recognized in several cases. The mortgagor is not a necessary party to this action. He has already been sued, and a decree obtained against him.

Counsel cited Samaranaike v. Samaraweera,2 Sleema Lebbe v. Banda," De Saram v. Perera* No. 9,810-D. C. Kandy,5 Wijesinghe v. Don David,6 Mutturamen v. Massilamany,7 and Silva v. Gunawardena.8

A. St. V. Jayawardene, in reply.

Cur. adv. vult.

February 28, 1918. ENNIS J.-

This case raises a difficult question as to the effect of chapter XLVI of the Civil Procedure Code, relating to the realization of money secured on mortgage.

On May 4, 1909, one Christogu Fernando mortgaged certain lands with the plaintiff; the plaintiff put the bond in suit, the lands were sold in execution, and plaintiff obtained Fiscal's transfers on September 24, and 30, 1915.

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