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IBRAHIM v. HONG KONG AND SHANGHAI BANK
NLR37V51
1934 Present
:
Garvin S.P.J. and Akbar J.
IBRAHIM v. HONG KONG AND SHANGHAI BANK.
40-D. C. (Inty.) Colombo, 47,760.
Registration-Seizure of
property on a mandate of sequestration-Mortgage by owner subsequent to
seizure-Prior registration of mortgage-Seizure void as against the
mortgage-Seizure does not create an interest in land within the meaning of
section 6 (1) of Ordinance No. 21 of 1927- Seizure is an instrument affecting
land within the meaning of the Registration of Documents Ordinance, No. 23 of
1927.
A notice of seizure issued by the Fiscal on a mandate of sequestration was
registered after a mortgage effected by the owner, which was subsequent in date
to the seizure but prior in registration.
Held, the notice of seizure on a mandate of sequestration was an
instrument affecting land within the meaning of section 6 of the Registration of
Documents Ordinance, No. 23 of 1927, and was void as against the mortgage.
Held, further, that such a notice of seizure did not create an interest
in land within the meaning of section 6 (1) of the Mortgage Ordinance. No. 21 of
1927.
APPEAL
from a judgment of the District Judge of Colombo.
H. V. Perera (with him Nadarajah), for plaintiff, appellant.
Keuneman
(with him Choksy), for defendant, respondent.
November 28, 1934. AKBAR J.-
The plaintiff-appellant in this case sued one Thiagarajah in D. C. Colombo, No.
35,982, and issued a mandate of sequestration seizing the property in dispute in
this case on December 21, 1929, but this seizure unfortunately for him was not
registered till January 11, 1930. On February 19, 1930, he obtained judgment and
on writ issued on June 11, 1930, this property was seized and sold on September
19, 1930. Plaintiff obtained his Fiscal's transfer on December 17, 1930. During
this time Thiagarajah mortgaged this property to the defendant on December 24,
1929, and the mortgage was registered on January 3, 1930. The defendant
instituted a mortgage action on this bond on January 16, 1930, the lis pendens
being registered on January 18, 1930. He obtained a
mortgage decree on the same day,
viz., January 18, 1930, and the decree was registered also on the same day. The
property was sold and bought by the defendant on conveyance D 5 dated February
21, 1931, and registered on February 25, 1931. A number of issues was framed but
by agreement of parties the trial Judge delivered his order on the 5th issue,
viz., whether plaintiff's fiscal transfer was null and void as against the
conveyance dated February 21, 1931, in defendant's favour under his mortgage
decree and whether plaintiff was bound by the mortgage action and decree and
sale.
The appeal is from the order of the District Judge in which he held against the
plaintiff. It will thus be seen that there is no dispute as regards the facts
and that the appeal is purely on questions of law relating to the correct
interpretation of certain sections of the Mortgage Ordinance, No. 21 of 1927,
and the Registration of Documents Ordinance, No. 23 of 1927. The only question
that appears to me to arise in this appeal is whether the plaintiff is bound by
the decree in the mortgage action. He was admittedly not made a party to the
mortgage action and he will therefore be bound by the mortgage decree if he was
not a necessary party to the hypothecary action within the meaning of these
words in section 6 of Ordinance No. 21 of 1927. In the first place had the
plaintiff " an interest in the mortgaged property " within the meaning of
section 6 (1) of that Ordinance. He obtained a mandate of sequestration on
December 21, 1929, three days prior to the mortgage bond in favour of plaintiff.
The notice of seizure issued by the fiscal on this mandate of sequestration was
registered on January 11, 1930, eight days after the registration of defendant's
mortgage bond. Now a notice of seizure cannot be said to create an interest in
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