Punchi Appuhamy V. Dharmaratne

1934 Present: Macdonell C.J.and Drieberg J.

PUNCHI APPUHAMY v. DHARMARATNE

283-D. C. Kurunegala, 14,736

    Seizure Return of writ-Death of judgment-debtor-Sale in execution-Validity of seizure-Mortgage action-Death of mortgagee-Sale of mortgaged property-Rights of purchaser-Equitable relief-Ordinance No. 21 of 1927, s. 11.

Where, on a writ issued in execution of a decree for money, the Fiscal seized property and returned the writ to Court as the charges for advertising the sale had not been paid, and where the Court reissued the writ on fresh stamps,-

Held, that the seizure already made remained effective and was not deprived of its validity by the return of the writ.

The purchaser of property sold in execution of a decree in a mortgage action to which the legal representative of a deceased mortgagor had not been made a party is entitled to equitable relief under section 11 of the Mortgage Ordinance, No. 21 of 1927, in an action brought by the heirs of the mortgagor to vindicate title to the land.

THE plaintiff instituted this action for a declaration of title to two allotments of land as the sole heir of his mother, Kiri Menika.

The defendants claimed a half share on Fiscal's transfer of February 16, 1927, granted as purchasers in execution of a' money decree in D. C, Kurunegala, No. 9,849, entered by consent against Kiri Menika, Pinhamy (her husband), and Ranhamy. On February 20, 1924, application for writ was made and writ issued on February 21, 1924. The Fiscal seized a half share of the two lands on March 21, 1924, and returned the writ to Court as the advertising charges for the publication of the sale had not been paid, Meanwhile, Kiri Menika died on May 26, 1924. Thereafter the writ was reissued and a half share of the lands was sold to the defendants on August 11, 1926. It was contended that as Kiri Menika died before the writ was fully executed, his legal representative should have been made a respondent to the proceedings. The other half share was bought by the defendants on a conveyance of April 2, 1926, by the Commissioner appointed to carry out an order to sell issued in execution of a mortgage decree entered in D. C. Colombo, 12,833, against Kiri Menika, her husband Pinhamy, and Ranhamy. On the returnable day of summons to the plaint filed in the action, it was reported that Kiri Menika was dead. The other two defendants consented to judgment. Decree was entered in the action but no person was appointed to represent the estate of Kiri Menika before the property was sold to the defendants.

The learned District Judge gave judgment for the plaintiff.

Croos da Brera for defendants, appellant.-As regards half share of the land In dispute it was seized during the lifetime of the judgment-debtor, Kiri Menika. The property was therefore in custodia legis. No fresh seizure was necessary. The original seizure was never withdrawn (Wijewardene v. Schubert 1[1 (1906) 10 N. L. R. 90.]; Peria Carpen Chetty v. Sekappa Chetty2[ 2 (1910) 3 Curr. L. R. 168.];

Andris Appu v. Kolande Asari 1[1 (1916) 19 N. L. R. 886.] It is not necessary to substitute the legal representative of the deceased debtor (Goonetilleke v. Jayasekere2[2(1931) 32 N. L. R. 227.]) nor is a fresh seizure necessary when a writ is reissued. Even if there is a fresh seizure it will not affect the validity of the first seizure (Perera v. Mudala3[3 (1926) 27 N. L. R. 483.]). The Fiscal's transfer therefore conveys good title to the defendants.

As regards the other half, although the defendant, Kiri Menika, was dead the subsequent appointment of a legal representative has retrospective effect. The plaintiff was present at the sale and did not claim or object. Minority will not prevent an estoppel from operating. In any event the defendants are entitled to ask under section 11 of the Mortgage Ordinance, 1927, for a hypothecary charge in respect of the purchase money. The

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