1923 Present : De Sampayo A. C. J. and Schneider J.

MOHAMADU BUHARI v. SILVA

 263-C. R. Matara, 12,186

Sale under mortgage decree-Mortgage action not registered-Lis pendens -Sale under simple money decree-Right of purchaser under mortgage decree to refer back to mortgage bond.

D mortgaged the land in question to S in 1915 by a bond which was registered in the same year. S put the bond in suit in 1920 and obtained a decree in the same year. The lit pendent was not registered. The mortgaged property was sold in execution on May 11, 1921, and purchased by L. Fiscal's transfer was issued to L on August 22, 1921, and registered on August 23, 1921.

On a writ against D on a simple money decree on March 7, 1921, one-eighth share of the land was sold on May 4, 1921, and purchased by defendant, to whom the Fiscal issued the transfer on August 22, 1921, which was registered on September 7, 1921.

Held, that L had superior title.

" The purchaser under the mortgage decree is entitled to- refer his title back to the mortgage bond. "

THIS case referred to a Bench of two Judges by Schneider J. by the following judgment: -

An important point has been raised in this appeal, which I would refer to a Bench of two Judges, under the provisions of section 41 of the Courts Ordinance, 1889.

The plaintiff claimed title upon the following facts:-One Divunu Hamy was entitled to an undivided half of a land described as lot B, and she mortgaged that interest with one Siman Appu, who sued upon the bond in C. R. Matara, No. 11,264, to which the defendant was not a party. The action was instituted on June 18, 1920, and decree was entered on October 1, 1920. The land was sold by the Fiscal under this decree on May 11, 1921, and a transfer bearing No, 15,739 dated August 32, 1921, was issued by the Fiscal. This transfer was registered, on August 23, 1921. The defendant claimed title adversely to the plaintiff upon the following facts. Under a writ issued against the said Divunu Hamy in C. R. Matara, No. 8,988, the Fiscal sold an undivided one-eighth of the land, of which lot B formed a portion at one time. The defendant, as purchaser, obtained Fiscal's transfer No. 15,740 dated August 22, 1921, and registered on September 7, 1921.

The question which I wish to refer to a Bench of two Judges is one whether the plaintiff's title is entitled to prevail against that of the defendant even in respect of the undivided one-eighth share of lot B which appears to me to be the only interest which the defendant can claim should it -be held that the plaintiff's title is not superior to that of the defendant. The decisions of the Full Bench in the cases of Muttu-ramen of Massilamany [1] and Silva v. Gunawardena [2] appear to me to cover the point in dispute, but Mr. Soertsz, on behalf of he appellants,

Foot notes:

1 (1913) 16 N. L. R. 289.
2 (1915) 18 N. L. R. 241.

submitted that the effects of section 3 of Ordinance No. 29 of 1917 was to deprive the plaintiff of any benefit which he might derive from action No. 11,254, to which the defendant was not a party, and which was unregistered. Mr. Soertsz relied on the case of Davith v. Davith. [ (1922) 4 C. L. R. 43] As there seems to be some conflict between this case and the Full Bench decisions, let this appeal be listed before a Bench of two Judges.

Soertsz, for defendant, appellant.-The provision for the registration of lis pendens was introduced in order to protect bona fide purchasers. The purchase by defendant was no doubt subject to the mortgage bond, but it is submitted that he cannot be bound by the decree in the action on the bond. He was not aware of the decree, and it is inequitable that he should be bound by it. If the action had been registered, he would have had an opportunity of paying the amount due. The plaintiff should suffer for the failure to register. Counsel cited Davith v. Davith (supra).

Keuneman (with him Croos-Da B