John Appuhamy V. William Appuhamy

1937   Present: Moseley J. and Fernando A J.

JOHN APPUHAMY v. WILLIAM APPUHAMY

 282-D.C. Colombo, 2,886

Bond-Action on mortgage bond which is void-Right to recover on personal covenant-Bond conditioned' for the payment of money-Prescription- Ordinance No. 22 of 1871, s. 6. An action may be maintained upon the personal covenant to pay

money contained in a mortgage bond, which is void for the reason that it was executed pending a partition action.
Such a bond is one conditioned for the payment of money within the meaning of section 6 of the Prescription Ordinance.

Sidambaram Chetty v. Jayawardana (4 Tambyah 85) and Tissero v. Tissera (2 N. L. R. 238) followed.

APPEAL from a judgment of the District Judge of Colombo.

L. A. Rajapakse, for plaintiff, appellant.

M. C. Abeyewardene, for defendant, respondent.

Cur. adv- vult.

February 10, 1937. MOSELEY J.-

By a mortgage bond, dated February 21, 1929, the defendant mortgaged a certain share of land which was at the time the subject of a partition action. Action was filed on the bond on March 5, 1935. The defence was that by virtue of section 17 of the Partition Ordinance, No. 10 of 1863 the hypothecation while partition proceedings were pending was void. It was further contended that in the event of the plaintiff being regarded as an unsecured creditor, action was prescribed by section 7 of the Prescription Ordinance, No. 22 of 1871.

The learned District Judge found that the hypothecation was void, that no money could be due on that mortgage bond, and that the question of prescription did not therefore arise.

From that judgment the plaintiff appeals. His first point is that, even if the hypothecation of the land is bad, the personal covenant to pay the debt remains. On this point we were referred to the case of Sidambaram Chetty v. Jayewardana[1 4 Tambyah 85.]  which case had been considered by the District Judge and held not applicable. This case seems to provide ample authority for the proposition that only the hypothecation is void and not the instrument containing it.

Counsel for the respondent sought to distinguish the circumstances of the present case and submitted that in the case before us there is no distinct claim on the personal convenant, whereas in Sidambaram Chetty v. Jayewardana (supra), the plaintiff avoided recourse to the hypothecary action, and sued only on the personal covenant. In the plaint, however, there is a perfectly clear claim for payment on the personal covenant, and I have no hesitation in following the authority and finding that, although the hypothecation is void, there still remains to the plaintiff an action on the promise to pay-

This brings us to the second point, namely, whether or not the action, on the promise is prescribed. The defendant's contention is that being a mere promise to pay, it falls under section 7 of the Prescription Ordinance, and that the action, not having been brought within six years, cannot be maintained.

Counsel for the plaintiff argues that the document is a bond conditioned for the payment of money within the meaning of section 6 of the Ordinance in which case the action has been commenced well within the statutory period of ten years.

We are thus faced with the vexed question as to what is a bond condition for the payment of money.

We were referred to the case of Tissera v. Tissera [1 2N.L. R. 238], in which case the document under consideration contained a promise to pay a sum of money with interest on demand and the person executing it bound himself, his heirs and executors and all his properties. It was held by Bonser C. J.. that the document was a "general conventional mortgage" and he had no doubt that it fell under section 6. He was also of opinion that it was a bond " conditioned for the payment of money ", the meaning of which he went on to say " is that the bond is to be given for securing' the payment of money, and

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