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DE ZOYSA v. BANDIYA et al.
NLR30V257
Present: Fisher C.J. and Drieberg J.
A DE ZOYSA v. BANDIYA et al.
102 -102A-D. C. Kurunegala, 11,673. _
Mortgage-Sale of mortgaged property-Extinction of mortgager-Sale of mortgage
bond in execution-Bight of purchaser in execution- scope of action under section
247 of the. Civil Procedure Code.
Where a person mortgaged a land to B and subsequently transferred the land to
B's wife free from encumbrances and a part of the consideration for the transfer
was the discharge of the mortgage debt by B
Held, that the mortgage bond was extinguished and that a purchaser in execution
against B obtained no rights on the bond.
A purchaser in execution of the right, title, and interest of the mortgagee is
on the same footing as the latter and takes the bond subject to all equities.
Per DRIEBERG J.-An action under section 247 of the Civil Procedure Code is a
statutory one which cannot be extended beyond those limits.
Where the subject of execution is a mortgage bond, the only question for
decision in such an action is whether the right of action on the bond is liable
to be sold in execution of the decree. Whether the bond was satisfied by payment
or otherwise is a question that arises for decision only when an action to
recover on the bond is instituted by the purchaser.
Plaintiff instituted this action to recover a sum of money due on a mortgage
bond executed by the first and second defendants on February 21,1917, in favour
of one N. E. Wijeyesekere. On March 8, 1917, the first and second defendants had
transferred the properly mortgaged to the third defendant, wife of Wijeyesekere,
free film all encumbrances. On the death of Wijeyesekere in 1918, the deceased
was indebted to the plaintiff in a sum of Rs. 10,400, and the plaintiff sued the
third defendant as executrix of the husband's estate.
He obtained judgment and seized in execution the mortgage bond in question. The
third defendant successfully claimed the bond as her property and the plaintiff
brought an action under section 247 of the Civil Procedure Code and obtained
judgment in his favour declaring that the bond was liable to be sold in
execution of the judgment which the plaintiff had obtained against the estate of
Wijeyesekere. At the sale the plaintiff purchased the right, title, and interest
of the deceased on the bond. On September 1, 1926,
he instituted the present action
against the first and second defendants as the persons who had executed the
mortgage bond and the third defendant as the purchaser of the mortgaged
property. The learned District Judge dismissed the plaintiff's' action.
De Zoysa, K. C. (with H. V. Perera and Ameresekere), for plaintiff, appellant.
Keuneman (with L. A. Rajapakse), for first and second defendants, respondents.
F. H, B. Koch, for third defendant, respondent.
E. G. P. Jayatilleke (with Croos da Brera), for fourth defendant, respondent.
November 30, 1928. FISHER C.J.-'
In this case, on February 21,1917, the first and second defendants executed
a mortgage bond in favour of N. E. Wijeyesekere to secure Rs.' 15,000 with
interest at 15 percent, or in default 20 per, cent. That bond was duly
registered, and still remains registered and uncancelled, and the main question
we have to consider is whether it survived and remained effective after the
execution of the transfer of the property mortgaged to the third defendant, the
wife of N. E. Wijeyesekere. That transfer was executed by the first and second
defendants on March 8, 1917. The transfer, the consideration for which was
stated to be Rs. 24,000, was made "free from encum brances." On November 7,
1918, N. E. Wijeyesekere died, leaving a will of which he appointed the third
defendant executrix, and probate of the will was granted to her. At the time of
his death the deceased man was indebted to the plaintiff in a sum of Rs. 10,400,
and he sued the third defendant as executrix to recover the debt. He obtai
