Present: Ennis A.C.J, and Loos A.J.

APPUHAMY v. NAIDE.

109-D. C. Kurunegala, 7,106.

Mortgage-No address left with Registrar by either mortgagee or puisne incumbrancer-Action by mortgagee without making puisne incumbrancer a party-Mortgagee aware of puisne incumbrancer- Puisne incumbrancer aware of mortgage action-Bid by puisne incumbrancer at auction-Estoppel-Subsequent action by mort­gagee-Civil Procedure Code, s. 643.

Hendrick executed ' a primary mortgage in . 1912 in favour of defendant and Peiris. In 1913 he executed a secondary mortgage in favour of the second plaintiff. On January 7, 1918, he sold the lands to the first and second plaintiffs. The first plaintiff paid off the secondary mortgage and half of the primary mortgage. On February 27 the defendant put the primary mortgage bond ju suit without making the plaintiff a party, though he was aware of the purchase and bought the land himself. No address, as required by section 643 of the Civil Procedure Code, was given either by the defendant or the plaintiff.

Held, that the plaintiffs were not bound by the mortgage decree.

The facts that the plaintiff knew of the pendency of the mortgage action but took no steps, and that he bid at the auction sale, were held not sufficient in the circumstances of this case to constitute an estoppel.

Held, further, that the defendant could not bring a fresh action on   the   mortgage   bond   to   make,  the   plaintiffs    liable.

THE facts appear from the judgment.

Bawa, K.C. (with him Roberts), for appellant.

E. W. Jayawardene (with him Weerasinghe), for respondents.

June 27, 1919.    Ennis A.C.J.-

This was an action for declaration of title to half share of certain v. Naide       lands     and for    ejectment.    It   appears   that   the   land   originally belonged to one Hendrick Singho, who mortgaged it on a primary mortgage on October 23, 1912, to the defendant and one Peiris Singho: He subsequently mortgaged it on a secondary mortgage on Novem­ber 18,  1913, to the second plaintiff.    On January 7,  1918, he sold it to the first and second plaintiffs.    The first plaintiff assets that he had paid off the secondary mortgage,  and paid off half of the primary   mortgage   to   the  administrator   of   Peiris   Singho's   estate. On   February   27,    1918,    the defendant put the primary mortgage bond in suit and received judgment, had the land sold, and bought for himself.    The plaintiff was not a party to that action,  and no address for service as required by section 643 of the Civil Procedure Code was given to the Registrar by the defendant or by the plaintiff. The learned Judge held that the plaintiff was not affected by the mortgage   decree,   because   the   mortgagee   had   not   registered   his address, and had further failed to make the plaintiff a party, although he  knew   of   his   purchase.    The   defendant   appeals.    The   appeal raises   an   interesting   point   as to the construction   of   section 643 and  644   of   the   Civil  Procedure   Code.    It   is   contended  for   the appellant that  those sections  are not  exhaustive  of the  cases in which a person is bound by the mortgage decree in a case in which he is not made a party.    Two cases were cited, in both of which neither party had   registered   an   address,   but it was held that the mortgagee's   decree   was   binding,  as the subsequent   grantees had purchased during the  pendency of the mortgagee's  action.    These two were the cases of Sebastian Perera v. Jusey Perera 1 and Muheetk v. Nadarajapillai.2    It was argued that the sections 643 and 644 are not exhaustive, and do not expressly say what is to happen in cases in which the mortgagee has not registered  an address for service, that section 4 of the   Civil   Procedure   Code comes into operation, and that under that section the Court must look to the previously existing   proc