1937   Present: Soettsz J. and Fernando A.J.

TAMBIAH v. SANGARAJAH.

70-D. C. Jaffna, 6,290.

Thesawalamai-Mortgage of thediathetam property by husband-Hypothecary-action by mortgagee-Death of wife pending the action-Failure to make the heirs party to the action-Decree not binding on heirs-Ordinance No. 21 of 1927, s. 11.

Where under the thesawalamai the husband mortgaged thediathetam property and during the pendency of a hypothecary action brought by the mortgagee against the husband, the wife died leaving heirs,-

Held, that the heirs were not bound by the decree entered1 in the action unless they were made parties to the action.

Ambalavanar v. Kurunathan (37 N. L. R. 286) followed.

Where in an action for declaration of title to land an issue was settled as to whether the plaintiff was entitled to claim equitable relief under section 11 of the Mortgage Ordinance, No. 21 of 1927, and where objection was taken in appeal that the claim was obnoxious to section 35-of the Civil Procedure Code,-

Held, that the fact that the issue was adopted implies that the requisite leave was granted under section 35.

APPEAL from a judgment of the Distri