Saravanamuttu V. Solamuttu

Present: Bertram C. J. and Ennis J.

SARAVANAMUTTU v. SOLAMUTTU.

483-D. C. Colombo, 7581.

Mortgage-Registration of his pendens-Failure to register decree-Sale by mortgagor after decree-Purchase by mortgagee-Equitable rights-Ordinance No. 14 of 1891, ss. 16 and 17.

A mortgagee registered his mortgage and his address, and on instituting his action on the bond failed to register either lis pendens or the decree, and bought the land in execution of his decree.

After the decree, the mortgagor sold the land to the plaintiff who registered his transfer.

Held, that a mortgage decree requires registration under section 16 of the Land Registration Ordinance, and that, unless it is so registered, it is void as against a purchaser for valuable consideration, who acquires title after judgment and before execution.

In the case of a mortgage action, the doctrine of lis pendens operates after judgment and up to the conclusion of execution.

Where a person has bought subject to a registered mortgage, he ought not to be allowed to eject the purchaser under the decree, except on terms of equitable compensation in respect of the extinction of the mortgage.

APPEAL from a judgment of the District Judge of Colombo. Action for declaration of title to a land which belonged to one Ameresekere, who, on August 1, 1919, mortgaged it to the defendant. The mortgage was registered on August, 2, 1919, by the defendant, who also registered his address on August 28, 1919. On November 15, 1921, the defendant put his bond in suit, but he did not register his lis pendens. He obtained a decree on November 21, 1921, which was not registered. On the sale in execution on March 3, 1922, the defendant purchased the land and obtained a conveyance on March 17, 1922. which was registered on March 25. On December 12,

1921, i. e., between the decree and the sale in execution, Ameresekere sold the land to the plaintiff, who registered his deed on January 27,

1922. The learned District Judge found in favour of the defendant.

H. V. Perera (with him Weerasooria), for plaintiff, appellant. -The defendant is a purchaser at a sale in execution in a mortgage action. The lis pendens was not registered. Plaintiff purchased from the mortgagor during the pendency of the action. Plaintiff's deed is registered prior to Fiscal's transfer in favour of defendant. Section 3 of Ordinance No. 29 of 1917 applies. Plaintiff gets a title free of any rights arising through the mortgage action. The learned District Judge purported to follow Mohamadu Buhari v. Silva [1 (1923) 24 N. L. R. 477.]

rather than David v. Davith [1 (1922) 4 C. L. R. 43.]. The decision in Mohamadu Buhari v. Silva (supra) does not apply. Even if it does apply, it has been over ruled by a Bench of five Judges in Anohamy v. Haniffa [2 {1923) 25 N. L. R. 289.] which is entirely in point.

Samarawickreme (with him Navaratnam), for defendant, respondent. -Sections 643 and 644 of the Code are capable of the construction that the registration of the mortgage bond and of the address is a sufficient compliance with the requirements of the law to render the mortgage decree binding, not only on a subsequent grantee, the conveyance to whom is prior to the institution of the action on the bond, but also on a person who seeks to set up title to the property hypothecated on a conveyance from the mortgagor subsequent to the decree. Since a mortgage decree is purely declaratory and does not purport to create an interest affecting land, the registration of the plaint in a mortgage action is a superfluity. The matter in issue in a mortgage action is whether or not the property hypothecated is executable, in the event of the mortgagor's failure to satisfy the mortgagee's claim by payment. And, it is the decree-in, favour of the mortgagee that gives a good and valid title to a purchaser under the decree, as against the mortgagor and those claiming under him. Once th

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