Subasinghe Et Al. V. Palaniappa Pillai

1934 Present: Garvin S.P.J. and Akbar J.

SUBASINGHE et al. v. PALANIAPPA PILLAI.

160-D. C. (Inty.) Colombo, 33,589.

Mortgage action-Decree entered-Sale of property hypothecated in execution of a money-decree-Intervention by purchaser under money-decree- Right to intervene-Distribution of proceeds of sale-Mortgage Ordinance, No. 21 of 1927, s. 6 (2), (3), (4).

A person who during the pendency of a hypothecary action purchases the property under mortgage, in execution of a money decree, may intervene under the provisions of section 6, sub-section (3), of the Mortgage Ordinance, No. 21 of 1927, but such intervention may be permitted only before the distribution of proceeds of sale under the mortgage decree.

APPEAL from an order of the District Judge of Colombo.

H. V. Perera (with him Nadarajah), for the petitioner, appellant.

S. W. Jayasuriya, for the first and second plaintiff, respondents.

Weerasooriya (with him E. B. Wikramanayake), for the fourth and fifth respondents.

D. R. Jayakoddy, for the sixth respondent.

February 21, 1934. GARVIN S.P.J.-

This appeal raises a question of considerable interest and, I venture to think, of considerable importance. The plaintiff in this action got a judgment on a mortgage bond. The decree was in the usual form of a hypothecary decree. In due course the property hypothecated was brought to sale and was actually sold on March 7, 1930, to the third respondent, Jinadasa. The deposit required by the conditions was paid but the purchaser failed within the time allowed for the purpose to pay the balance purchase money into court. On May 20, 1930, upon the application of the plaintiff the court made order declaring the amount of the deposit forfeited and directed that the property be re-sold at the risk of the third respondent. In the meanwhile, in execution of a decree obtained in another action against the same defendant the same property had been seized and sold and at that sale the present petitioner-appellant became the purchaser. On May 2, 1930, the purchase price was paid in full into Court and all conditions were apparently complied with to entitle him to a conveyance. Before the sale could be confirmed certain others intervened and objected to the confirmation of the sale. Various postponements were obtained for the consideration of the objections taken to that sale and, while that matter was still pending, an application was made in this case to have the order made by the District Judge, declaring the deposit forfeited and the property under hypothecation to be sold at the risk of the third respondent, vacated and that further

time be given to the third respondent to complete his purchase. On July 18, 1930, with the consent of all parties to the action the application was allowed and the order vacated. On that same day the third respondent paid the purchase price into court and obtained from the Secretary a conveyance of the property purchased by him. It is in evidence that on July 18 he transferred the property to the fourth and fifth respondents who themselves executed a mortgage in favour of the sixth respondent to secure a sum of Rs. 4,000. On July 21 upon the application of the plaintiff he was permitted to draw the amount of Rs. 11,486.24 in satisfaction of the decree and a further order was made permitting a sum of Rs. 405.13 to be drawn in and towards his taxed costs. After all these steps had been taken, a conveyance had been issued and the purchase money drawn in satisfaction of the decree, Palaniappa Pillai, the present appellant petitioned the Court and it is evident that the object and purpose of his petition was to obtain from the Court an order declaring that all orders and steps taken in this case from and including the order of July 18, 1930, vacating the earlier order of June 18, 1930, be set aside and that he be permitted to intervene in the action for that purpos

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