[FULL BENCH]

Present : Bertram C.J. and De Sampayo and Garvin JJ.

MORAES et al. v. NALLAN CHETTY. .

321-D. C. Kandy, 29,596.

Mortgage-Civil Procedure Code, ss. 640-644-Address not registered by mortgagee-Sale by second mortgagee under his decree-Second  mortgagee not a party to action by first mortgagee-Is purchaser at sale under decree of second mortgagee bound by the first mortgage?

Where a registered mortgagee did not register his address, and brought an action on his bond without making a subsequent mortgagee a party, or giving him notice of the action, and where the subsequent mortgagee obtained judgment on his bond before the first mortgagee instituted his action, and sold in execution the-mortgaged property before it was seized under the decree obtained by the first mortgagee,-

Held, that the purchaser at the sale in execution under the decree obtained by the second mortgagee took the property subject to the first mortgage.

The effect of not registering address by primary mortgagee discussed. Suppramaniam. Chetty v. Weerasekera[1 (1918) 30 N. L. R. 170.] considered.

THE facts are set out in the judgment of the Chief Justice.

Samarawickreme (with him Hayley), for the appellant.-

The sections of the Code relating to mortgage actions merely lay down a quick and expeditious procedure for the enforcing of the rights of a primary mortgagee. If the intention of the Legislature was to

 

create, by means of these sections, substantive law superseding the common law, me Legislature would have proceeded to make
the change in explicit terms. If this contention is correct, then the failure of a primary mortgagee to register his address does merely deprive him of the privilege of obtaining in one and the same action a decree binding not only his mortgagor, but also all puisne incumbrancers. Any conflicting interests that may exist between a mortgagee and a puisne incumbrancer can form the subject of a separate and subsequent action, and can be adjudicated upon.

E. W. Jayawardene (with him Croos-Dabrera and Navaratnam), for the respondent.-The Code imposes on a mortgagee a positive obligation to register his address. The compliance by the mortgagee with the requirements of the sections of the Code is a " condition precedent to a puisne incumbrancer being bound either directly or indirectly by the decree in a mortgage." This principle has been recognized and followed in a series of decisions. In Appuhamy v. Naide [1 '(1919) 21 N. L. R. 173.] it was held that compliance with section 643 in the matter of registering an address for service was a condition precedent to success, and that a subsequent purchaser was not bound by the mortgage decree. The Full Court in Suppramaniam v. Weerasekera (supra) definitely held that only one action was now surviving to a mortgagee, and that was the action under chapter XLVI. of the Code. The failure of the primary mortgagee to register his address is a fatal defect ; and his rights against subsequent incumbrancers when he has not made parties to his mortgage action are completely wiped out.

The following cases were cited at the argument.-23 N. L. R. 176 ; 20 N. L. R. 170 ; 4 N. L. R. 42 ; 14 N. L. R. 177 ; 12 N. L. R. 139 ; 2 S. C C. 146 ; 6 N. L. R. 220 ; 14 N. L. R. 47 ; 16 N. L. R. 210 ; 9 N. L. R. 359.

Cur. adv. vult.

March 20, 1923, BERTRAM C.J.-

In this case we are called upon to discuss a question which has been repeatedly discussed before, namely, the effect to be imputed to sections 643 and 644 of the Civil Procedure Code which deal with registration of the addresses of mortgagees, and of section 640 which declares that the mortgagor must always be a party to a mortgage action. The contest in this case is between a primary mortgagee, who had never registered his address and is now seeking to realize his security by sale of the mortgage property, and certain persons claiming under a sale effected by a secon