Ranasinghe V. Carolis Et Al.,

Present: Fisher C.J. and Drieberg J.

RANASINGHE v. CAROLIS et al.

212-D. C. Kurunegala, 11,943.

    Lis pendens-Mortgage action not registered-Sale by mortgagor's heir pending action-Transfer by heir registered in wrong folio- Conflict of title.

The plaintiff was the purchaser of property at a Fiscal's sale held in pursuance of a decree entered in his favour in a mortgage action, which was not registered as a lis pendens. He registered his Fiscal's conveyance in the right folio.

The added defendant who purchased the property from an heir of the mortgagor during the pendency of the action registered his conveyance in the wrong folio.

Held, that the plaintiff's title ought to prevail.

PLAINTIFF instituted the present action for declaration of title to a land, which was owned by one Mudianse, who mortgaged it to him by a deed dated March 6, 1915, and registered on May 15,-1915. On November 23, 1915, Mudianse obtained a Crown grant

for the land which he registered in a different folio, Mudianse died and the plaintiff instituted an action on the land against his legal " , representative and obtained a decree on February 12,1925. Neither v. . the lis pendens nor the decree was registered. The land was sold in Carolia pursuance of the decree and purchased by the plaintiff, who obtained a Fiscal's transfer on August 4, 1926, which he registered on August 28, 1926. Prior to this date the mortgaged premises had been sold by the heir of Mudianse to the added defendant, who had leased it to the defendants. The transfer in favour of the added defendant was registered in the wrong folio. The learned District Judge held that as the plaintiff had failed to register his lis pendens or decree the added defendant was not bound by the proceedings and dismissed the plaintiff's action.

H. V. Perera (with him Amarasekara), for plaintiff, appellant.- The non-registration of the lis pendens or the mortgage decree is immaterial. The added defendant's deed is registered in the wrong folio. It must, therefore, be treated as an unregistered deed. The competition is then between a prior registered Fiscal' conveyance at a sale in execution against a judgment-debtor and an unregistered voluntary conveyance from him. The question is merely one of the application of sections 16 and 17 of Ordinance No. 14 of 1891. The prior registered deed prevails. The added defendant could have protected himself by due registration. He has not done so. Had the appellant registered his lis pendens and his decree he would merely have had additional rights and been able to rely on his mortgage bond and the rights flowing from the mortgage action. In the present case he cannot do so, but he can still treat his mortgage decree as a simple money decree and avail himself of the provisions of sections 16 and 17 of the Land Registration Ordinance by reason of the prior registration of the Fiscal's conveyance issued in pursuance of the sale in execution.

N. E. Weerasooria, for defendant, respondent.-The fights of the appellant are derived from the contract upon the mortgage bond. The mortgagee is himself the purchaser and the appellant. His position is different from that of a stranger purchaser (Aldin Khan v. Ali Khan1[1 10 All. 166.]). In a mortgage action the lis pendens must be registered (section 27A of Ordinance NO. 14 of 1891). A mortgage action is pending until the delivery of possession to the purchaser for the purpose of section 27A. (See Saravanamuttu v. Sellamuttu 2[ 2 (1924) 26 N. L. R. 385.] and Silva v. Fernando 3[3 (1920) 22 N .L. R. 39.]) The provisions of sections 16 and 17 of Ordinance No. 14 of 1891 must be read in the light of, and not independently of, the provisions of this section, which is a section of the same Ordinance not inconsistent with the former, and, being a later section,

may be said to control the former. The mortgagee must combine in one action all his rem

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