Back
PERIYANAYAGAMPILLAI v. SILVA et al.
NLR22V481
[FULL BENCH.]
1921. Present : Bertram C.J. and Ennis and
De Sampayo JJ.
PERIYANAYAGAMPILLAI v. SILVA
et al.
350-D. C. Colombo, 54,431.
Payment-Debtor paying mortgagee before notice of assignment-Payment by purchaser
from mortgagor to mortgagee in ignorance of assignment-Is payment a discharge of
the debt ?-Is hypothecary action against purchaser only available under our law
?-Mortgagor must be sued along with the purchaser in one action-Money not
recoverable without six months' notice-Action brought after three months'
notice-Action withdrawn-Subsequent action after one year- Is action maintainable
without fresh notice ?
A mortgagor who in ignorance of the assignment of the bond in good faith pays
the assignor (mortgagee) is wholly discharged; not so if notice has been given
him by the assignee not to pay the assignor. The above principle does not apply
to the case of payment by a purchaser from the mortgagor. The purchaser must
take measures to satisfy himself that the person he pays is entitled to receive
the money. Otherwise he pays at his peril. It is immaterial in such
circumstances whether the assignee has or has not given notice to the original
mortgagor.
The Roman-Dutch law allowed a personal action against the mortgagor for the
debt, and a separate hypothecary action against any vendee of the mortgage
property ; the hypothecary action was available even without the personal action
being brought at all. Under the Civil Procedure Code the mortgagor must be
joined as a defendant in one and the same action, and a decree for the debt and
for the sale of the mortgaged property must be obtained in such action.
It follows that unless a decree for the debt is obtained against the mortgagor,
no hypothecary decree can go against the purchaser.
By the terms of a mortgage bond, a mortgagor undertook to repay on receipt of
six months' notice in writing. The plaintiff gave notice in September, 1918, and
the action on the bond was instituted in November, 1918, before six months had
elapsed.
The action was withdrawn, and a new notice was posted in March, 1919. But it did
not reach the first defendant. A fresh action was instituted in December, 1919.
Held, by DE SAMPAYO J., that with the termination of the first action the notice
ceased to have any operation, and that a fresh notice was necessary before the
second action.
By BERTRAM C. J.-The previous notice would have been good for the purpose
of this action if the first defendant had received it.
THE
facts appear from the judgment.
E. W. Jayawardena (with him E. G. P. Jayatileke), for appellant.
E. W. Perera, for first defendant, respondent.
Hayley, for second defendant, respondent.
Cur. adv. vult.
August 2, 1921. BERTRAM C.J.-
The question to be decided in this case is a simple one. What is the position of
the purchaser of a mortgaged property, who pays the mortgage debt or part
thereof to the original mortgagee without knowledge that the mortgage debt has
been assigned ?
The law as to the position of a mortgagor so paying his mortgagee is well
settled :-
" Plane nostris moribus circa cessas actiones magis placuit, jus . omne cedentis
cessione extinctum esse, nec amplius cedentem, sed solum cessionarium,
compellere posse debitorem invitum ad solu-tionem, licet necdum debitori
denunciatio per cessionarium facta sit, ne solvat cedenti. Debitorem tamen
cessionis ignarum bona fide solventem cedenti, in totum liberari. Non item, si
ei per cessionarium jam fuerit denunciatum, ne solvat cedenti ... Et sibi
cessionarius imputare debeat, si ob neglectam aut dilatam denuncia-tonem in
damno sit."-Voet. XVIII., 4, 15.
" Certainly according to our customary law on the subject of the assignment of
actions, the opinion has prevailed that the whole title of the assignor is
extinguished by the assignment, and that the assignor can no longer enforce
payment of the debt; but that only the assign
