Kristnappa Chetty Et Al V. Horatala

Present  : Ennis A.C.J. and Jayewardene A.J.

KRISTNAPPA CHETTY et al. v. HORATALA.

181--D. C. Kurunegala, 8,353.

Mortgage in favour of two persons-Address not registered-Action by secondary mortgagee first-Sale in execution-Subsequent action by primary mortgagee-Sale in execution-Rights of purchasers under the mortgage decrees-Claim to compensation by purchaser at second sale-Civil Procedure Code., ss. 643 and 644.

P mortgaged the land in question to F in 1912 and to A in 1914. A put his bond in suit first, and on a sale in execution purchased the land in November, 1917, and transferred it to plaintiff in November, 1918. F instituted an action on his bond in October, 1917, and in execution of the mortgage decree the property was purchased by defendant by deed dated September, 1919. Neither party complied with the requirements of sections 643 and 644 of the Civil Procedure Code, and neither mortgage decree was registered. In an action for declaration of title :

Held, " As plaintiff's title is based on a sale which was prior in date to the sale in favour of the defendant, the plaintiff's predecessor acquired the title of the mortgagor before the purchaser under the prior mortgage, and he must be declared entitled to the

land and to be placed in possession thereof. He is, however, bound to redeem the first mortgage. If he is not prepared to do so, the defendant is entitled to redeem him and obtain possession of the land. For this purpose, both mortgages are in law taken to have revived. But the plaintiff is not entitled to immediate possession as defendant claims to have improved the land and to retain possession till he is compensated. If the improvements had. been effected before the purchase under the second mortgage, no question of compensation would arise, as the improvements must be taken to have been effected by a transferee from the mortgagor, and they would accede to and form part of the land mortgaged. A question might also arise as to whether the amount to be paid in redeeming is the price paid by the purchaser or the amount due under the mortgage. Ordinarily it would be the latter. But in this case the defendant's right is to claim satisfaction in respect of this purchase under the mortgage of earlier date."

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THE facts are set out in the following judgment of the District Judge (A. Beven, Esq.):-

The land in question was mortgaged by Patumma and Ismail, amongst several other lands, to Arunachalam Chetty by bond No. 414 of July 10, 1914 (P 4), the bond was put in suit in. D. C. 6,246, and, after decree, writ issued, and the property was purchased by Arunachalam Chetty on November 26, 1917, and he obtained final transfer 8,381 of August 22, 1918 (P 6), and was placed in possession on October 12, 1918 (P 7)* He sold to plaintiff by deed 23,726 of November 14, 1918 (not produced). It appears that Patumma and Ismail had executed an earlier bond .31,881 of November 18, 1912 (P 1) in favour of Agida and Daniel Fernando. Daniel died, and his widow, Agida, discharged the bond P 1 and got a bond in her own favour for Rs. 1,000 by 15,875 of October 20, 1913 (P 2). This was assigned by 16,272 of February 12, 1914 (P 3) to Juanis Appu. Plaintiff states that that all previous writs were discharged on the execution of P 4, but I do not see that P 3 was discharged in the Encumbrance Sheet P 5. Rapiel, as administrator of the. estate of Don Daniel, sued Patumma and Ismail on the bond Pi,, and got judgment in D. C. 6,690 (vide D 3), which was affirmed in appeal. It was in execution of that decree that defendant purchased the land on September 16, 1919, by D 2. The competition is, there-fore, between plaintiff's purchase on P 6 under the secondary mortgage in D. C. 6,246 and defendant's purchase on D 2 under the primary mortgage in D. C. 6,690. It is admitted that neither of the mortgagees registered an address under the provisions of chapter

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