Adappa Chetty Et Al. V. Babi

 Present: Jayewardene A.J. 1923.

ADAPPA  CHETTY et al. v. BABI.

207-C.R.Kegalla, 18,347.

Mortgage decree-Effect of not registering decree.

R mortgaged the land in question to A in 1912. The bond was registered in the same year. In 1915 he mortgaged the same land to C. In 1918 C put his bond in suit and obtained mortgage decree, which decree was never registered. At the execution sale defendant purchased the land in September, 1920 (Fiscal's transfer, June 10,1921). A put his bond in suit in February, 1920, and obtained decree in March, 1920, and registered the decree in October, 1920. The plaintiff purchased the property at the execution sale on June 5, 1921 (Fiscal's transfer in 1923). The defendant was in possession, and the plaintiff (purchaser under the first mortgage) sued him for declaration of title. Neither mortgagee had complied with the provisions of sections- 643 and 644 of the Civil Procedure Code.

Held, that as the decree in favour of A (first mortgagee) was registered the plaintiff had superior title.

Mortgage decrees require registration. If a mortgage decree is not registered, any person claiming adversely to it under a subsequently registered instrument or decree is entitled to say that the unregistered decree is void as against him.

Salmon v. Gabo [2 (1905) 1 Leembruggen's Rep. 27.] followed.

THE  facts are set out as follows by the Commissioners of 1MB.Requests (W. J. L. Rogerson, Esq.) in his judgment:-

One Rana mortgaged the land in claim by bond 17,827 of September 26, 1912. to Anamalay Chetty. This was the primary mortgage. Anamalay Chetty died, and his estate was administered by Supra - maniam Chetty, who also died, and his estate was administered. His heirs were Adappa Chetty and Karupa Chetty. They instituted mortgage bond action C. R. 16,667 against Rana in 1920. The bond . was reduced to judgment in 17,320, and decree registered in October, . 1920. The property was sold in execution in June, 1921, and purchased by plaintiff, who obtained Fiscal's' transfer 6,084 of January 13, 1922, duly registered on January 17, 1922. Plaintiff failed to register his address for the information of puisne encumbrancers. The effect of this failure is only to prevent him from taking a separate action against a puisne encumbrancer to have the mortgage property bond re-executable for the mortgage debt.

On March 30, 1915, Rana executed a secondary mortgage on bond 21,285 in favour of defendant. Defendant instituted mortgage bond action C. B. 15,029 on this bond on January, 1918, and obtained a decree in March, 1918. He did not register this decree. The property was sold on execution under his writ on September, 1920, and purchased by defendant, who obtained Fiscal's transfer 5,974 of June 10, 1921, which was registered on June 22, 1921, according to plaintiff, in the wrong folio. The issues framed are :-

(1) Is defendant bound by the decree in C. B. 16,667 ?

I take plaintiff's position to be that defendant is so bound because as mortgagee on bond 15,029 he failed to register his address.

(2) Even if not, does plaintiff gain a superior title by reason of the prior registration of the mortgage bond decree under which he purchased?

(3) Is plaintiff's transfer superior to defendant's transfer by reason of due and prior registration ?

Defendant depends for his position almost entirely on the Full Court decision of N. L. R. 20, cited above. He argued that plaintiff having admittedly failed to register his address will have no remedy against subsequent encumbrancers. He also quotes N. L. R. 16, p. 189, and argues that defendant's vendor not being a party to plaintiff's action in the bond, defendant's bond must prevail over the sale to plaintiff. I will deal with this authority first. A reading of the headnote shows that that was a contest between a lease and a mortgage, the latter being taken in execution but prior in registration. It was

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