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

SAVARIMUTTU v. ANNAMAH.

 128-D. C. Colombo, 4,138.

Prescription-Mortgage action--Thediathetam property mortgaged by husband -Decree against husband's administrator-Subsequent action against widow-Ordinance No. 22 of 1871, s. 6-Mortgage Ordinance, No. 21 Of 1927, s. 16 (I).

B a Jaffna Tamil, subject to the Thesawalamai mortgaged thediathetam property. After his death the mortgage bond was put in suit against his administrator and decree entered in favour of the mortgagee.

The present action was instituted against the widow of B to make her half share of the property bound and executable under the decree.

Held, that although section 16 (1) of the Mortgage Ordinance permitted a second action to be brought, the action must be brought within the period of limitation created by section 6 of the Prescription Ordinance.

Kadappa Chettiar v. Ramanayake (38 N. L. R. 33) and Ambalavanar v. Kurunathan (37 N. L. R. 286) followed.

BY mortgage bond No. 38 dated October 3, 1925, A. Bastianpillai hypothecated a house and premises in Colpetty. Bastianpillai was a Jaffna Tamil subject to the Thesawalamai and the property mortgaged was thediatetam property. Bastianpillai died in 1933 and two years later the mortgage bond was put in suit against his administrator and a decree entered, which declared the property bound and executable. This action was brought against the defendant. Bastian-pillai's widow, asking for a declaration that her half share of the property be held bound and executable for the payment of the mortgage debt. The learned District Judge entered judgment for the plaintiff.

C. Nagalingam, for defendant, appellant.-This is a second action by the plaintiff upon a mortgage bond, which has already been sued upon by him in action No. D. C. Colombo, 3,377. The first action was against the administrator of the estate of the mortgagor, who was the Secretary 

of the Court and decree has been entered therein directing the payment of the full amount and declaring the entire property mortgaged liable to be sold in execution: This action is against the widow.

[SOERTSZ J.-Why was this action brought ?]

In view of the decision in Ambalavanar v. Kurunathan [1 37 N. L. R. 286.]

A second action does not lie as the bond is merged in the decree already entered and section 16 of the Mortgage Ordinance, No. 21 of 1927, does not enable the plaintiff to institute this action. But there is a ruling against me on this point in the case of Kadappa Chettiar v. Ramanayake [2  38 N. L. R. 33.]. I do not canvass that ruling in this appeal as I am entitled to succeed on another point, namely, the question of prescription.

The bond sued upon was executed on October 3, 1925, and this action was not instituted till October 18, 1935, so that if this Was the first action, it would have been clearly prescribed. The trial Judge has held against the appellant on the plea of prescription on the ground that the present action is not one for the recovery of a money decree but only for a declaration that a moiety of the mortgaged property is liable to be sold. One need only look at the prayer to the plaint to see if the action is for the recovery of money or not as contemplated by section 6 of the Prescription Ordinance. Even the prayer for sale of the property has as its object the recovery of money. It is difficult to resist the conclusion that however ingeniously the plaint may be worded, it is nevertheless an action for the recovery of money and as such it is prescribed.

N. Nadarajah (with him H. V. Perera, K.C.) t for plaintiff, respondent.- The Divisional Bench ruling in Sangarappillai v. Devaraja Mudaliyar'[ 3 38 N. L. R. 1], is an authority for the proposition that a mortgage decree against the husband alone in respect of thediathetam property would be sufficient to bind the property even as against the wife, if she were alive. But a dif