Ebrahim V. Thiagarajah, Et Al.,

1931 Present: Drieberg J. and Akbar J.

EBRAHIM v. THIAGARAJAH et al.

26 D. C. (Inty.) Colombo, 35,982.

Sequestration before judgment-Sale in execution of decree-Fiscal's transfer executed-Application for delivery of possession-Property under mortgage-Bond not reduced to decree-Application by mortgagee to stay delivery of possession-Civil Procedure Code, s. 287.

The plaintiff in an action for the recovery of an unsecured debt applied for and obtained a writ of sequestration before judgment and seized a property belonging to the defendant. In execution of his decree the property was sold and purchased by the plaintiff, in whose favour a Fiscal's transfer was issued.

Thereafter the plaintiff applied under section 287 of the Civil Procedure Code for an order of delivery of possession.

The petitioner, who held a mortgage over the property, which had not been reduced to a decree, moved to have delivery of possession to the plaintiff stayed.

Held, that the petitioner-mortgagee was not entitled to have delivery of possession to plaintiff stayed.

APPEAL from an order of the District Judge of Colombo.

Hayley K.C. (with him Tisseverasinghe), for appellant.

Keuneman, for respondent.

September 10, 1931. AKBAR J.-

The plaintiff sued the defendant in this case on December 19, 1929. On December 21, 1929, he obtained a mandate of sequestration, and the estate of the defendant was seized and registered on January 11, 1930. The plaintiff obtained judgment against the defendant for Rs. 4,000, with interest and costs on March 7, 1930; writ was issued on June 11, 1930, and the property in dispute in this appeal was sold on September 15, 1930, to the plaintiff. The Fiscal's transfer was signed on December 17, 1930, and on December 18, 1930, plaintiff moved for an order for the delivery of this property which was issued to the Fiscal on December 19, 1930. The petitioner, namely, the Hong Kong and Shanghai Banking Corporation, Colombo, obtained a mortgage bond from the defendant on December 24, 1929, as collateral security for moneys due by the defendant, which was registered on January 3, 1930. On January 13, 1930, another mortgage bond, unregistered, was executed for the same property by the defendant increasing and fixing the amount secured, in favour of the petitioner. On January 8, 1931, the petitioner intervened and applied to the District Court of Colombo ex parte and obtained an order staying the delivery of possession pending the further orders of the Court till January 21, 1931. On January 15, 1930, the petitioner filed an action on the mortgage bonds and judgment was obtained on January 18, 1930. The sale under the mortgage decree was fixed for January 20, 1931, that is one day before the notice on the plaintiff was made returnable. Owing to this conflict of interests the plaintiff moved the Court to vacate the order of January 8, 1931, staying delivery of possession. After argument the Court confirmed the order of January 8, 1931, and directed that the writ for the delivery of possession to the plaintiff be recalled and the plaintiff was also ordered to pay the costs of the inquiry. The main ground on which the District Judge made his order was that the application for delivery of possession was made by the plaintiff appellant by way of a motion and that in the Judge's opinion it should have been supported by an affidavit to the effect that nobody was in possession except the judgment-debtor. The District Judge mentions in his judgment that applications for writ of possession are commonly made by motions without any affidavit, but in spite of this fact, he ordered that the writ should be recalled owing, as I said, to the failure of the plaintiff-appellant to file an affidavit along with his motion. In the case of Abeyedere v. Marikar 1[11 N. L. R. 19.], cited before us, the facts were different to the facts here.

In that case, when the Fisca

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