1920. Present : De Sampayo J.

SILVA v. LOKUMAHATMAYA.

101-C. R. Ratnapura, 16,522.

Civil Procedure Code, s. 338-Mortgage-Death of mortgagor after decree -Execution against heirs of mortgagor who have adiated the inheritance-" Estate below the value of Rs. 1,000" means nett estate.

The expression " estate below the value of Rs. 1,000 " in section 338 of the Civil Procedure Code means a nett estate after the deduction of secured debts.

THE facts are set out in the Judgment.

E. G. P. Jayatilleke, for plaintiff, appellant.

R. L. Pereira, for defendant, respondent.

September 2, 1920. DE SAMPAYO J.-

A point of procedure of some practical importance arises for decision on the following state of facts. One Andrishamy, being the owner of a half share of the land Pahalawatta and a fourth share of the land Acharigewatta, mortgaged the same to defendant, who sued him on the mortgage in action No. 13,158, C. R. Ratnapura,

and obtained a mortgage decree on January 15, 1914. Before the decree could be executed, Andrishamy died intestate on March 25, 1914, leaving as his heirs his three children, Kapuruhamy, Anohamy, and Sedrishamy. On the application of the plaintiff in the mortgage action, these persons were on July 9,1914, substituted as defendants in the room of the deceased Andrishamy. Execution was then issued, and the mortgaged property was sold on September 3, 1914, and was purchased by the defendant, and two Fiscal's transfers dated September 18, 1916, were by orders of Court duly issued to defendant as purchaser, and were registered on November 7, 1916. The title of the defendant would so far appear to be prima facie good and valid. But the effect of certain administration proceedings has now to be considered. After the substitution of Andrishamy's children and the issue of writ, Kapuruhamy, the eldest son of Andrishamy, applied for administration to the estate of the latter in testamentary suit No. 644, D. C. Ratnapura, and obtained letters on October 2, 1914, and he with leave of Court had. the said shares of land sold over again by public auction on September 8, 1917, when the plaintiff in this action became purchaser, and the administrator executed a conveyance in his favour on September 10, 1917. These proceedings on the part of the administrator are somewhat extraordinary, seeing that he was one of the substituted defendants in the mortgage action and was aware of the execution sale in that action and the purchase of the property by the defendant. The plaintiff must also have been aware of these facts, because he was the administrator's proctor's clerk. It is difficult to avoid the impression that some sharp practice has been resorted to in this matter. It appears moreover that when the property was advertised for sale in the testamentary suit, the defendant petitioned the Court and objected to the sale, as he had already become owner of the property by purchase at the sale under the mortgage decree. But the administrator's proctor applied for leave to sell " subject to the claim " of defendant, as, it was said, the Court did not warrant the title, and the District Judge somewhat incautiously allowed the application. The result is unfortunate, for the plaintiff has brought this action to eject the defendant and has questioned the validity of the sale to the defendant on the ground that the substitution of the heirs of Andrishamy in the mortgage action was irregular, and that in view of the Value of Andrishamy's estate execution could have been issued only against his executor or administrator. This is the point of law to be decided in this case.

Section 341 of the Civil Procedure Code provides that " if the judgment-debtor dies before the decree has been fully executed, the holder of the decree may apply to the Court which passed it by petition, to which the legal representative of the deceased shall be made respondent, to execute the same