Present : Porter and Schneider JJ.

BANDA v. DHARMARATNE.

97-D. C, Kegalla, 5.367.

Action on a mortgage bond against mortgagor and purchaser-Application after trial to add the purchaser, pendente lite, as party to action-- Civil Procedure Code, s. 18-Power of Court to delay entering up of decree-Civil Procedure Code, ss. 187 and 188-Policy of the Code to avoid multiplicity of actions.

Plaintiff instituted an action on a mortgage bond against the mortgagor (first defendant) and the purchaser from the mortgagor (second defendant). The lis pendens was not registered nor were the provisions of chapter XLVI of the Civil Procedure Code complied with. After trial judgment was reserved, and before judgment was delivered plaintiff moved that judgment be deferred till aa application to add a party to whom the second defendant had sold the property pending the action was considered.

Held, that the Court had power under Section 18 of the Civil Procedure Code to add a party at that stage, and that plaintiff's application should have been, allowed under the circumstances.

SCHNEIDER J--" the policy of the Civil Procedure Code is to avoid a multiplicity of actions, and therefore, where the facts brought to the notice of the Court before it has finally disposed of the action are such that the addition of a person would tend effectually to deal with all the questions involved, the Court should not put difficulties in the way of parties to the action who seek to add such persons, but should stay its hand and afford the party seeking to do so an opportunity to add such persons as may be necessary to finally determine all questions arising in the action. "

A District Judge has no power to delay the entering of the decree once judgment has been pronounced.

THE facts appear from the judgment.

R. L. Pereira, for the plaintiff, appellant,

Keuneman, for the second defendant, respondent.

November 1, 1922. SCHNEIDER J,

On January 12, 1920, the plaintiff instituted this action for the realization of a mortgage created in his favour by the first defendant. He alleged that the second defendant was in possession claiming to be a purchaser of the land mortgaged subsequent to the date of the mortgage. The first defendant offered no defence. The second defendant pleaded several defences and disclosed that the land mortgaged was seized and sold on January 8, 1920, and was purchased by her, and that she obtained a transfer from the Fiscal on August 9, 1920. A trial followed, but upon an appeal to this Court a fresh trial was directed by the judgment of this Court dated October 21, 1921.

This trial took place on June 27, 1922, and was concluded on that date. The judgment was deferred for July 18, 1922. As to what happened on that day, there is the affidavit of Mr. Advocate Molamure, which I accept without hesitation.

In this affidavit he states that the plaintiff's proctor handed to him a motion early that morning. This motion is on the record. It is dated July 17, 1922, is signed by the proctor for the plaintiff, and is to the effect that the second defendant had transferred her interest in the property mortgaged on January 25, 1922, to one Dingiri Bandara Mahatmaya-a fact which had been concealed up to that date, and that " decree be not entered till the summons are issued to the said purchaser, and that he also moved for a summons on the said purchaser."

This motion is characteristic of the motions which some proctors occasionally make without considering the procedure which they should follow. The motion was clearly intended to ask that the Court should stay its hand until the party named was added, and that the plaintiff be allowed the opportunity to take steps to add that party.

It was not correct to ask for a summons to issue in the first instance upon the party sought to be added. The correct procedure that should have been followed for that purpose was pointed out, and