De Silva V. Rosinahamy Et Al.,

1939     Present: Soertsz A.C.J. and Keuneman J.

DE SILVA v. ROSINAHAMY et al.

322-D. C. Galle, 36,377. 

Mortgage-Land sold under decree for sale in partition action-Whole land under mortgage-Mortgage attaches to land in hands of purchaser- Hypothecary action against purchaser-Partition Ordinance, No. 10 of 1863, s. 12.

Where property is sold under a decree for sale in a partition action, the mortgage attaches to the land or part of it both in the case of a mortgage of the whole land as well as in the case of the mortgage of an undivided share.

The failure of the mortgagee to make a claim on the mortgage in the partition action does not debar him from bringing a hypothecary action against the purchaser of the land.

Godage v. Dias (30 N. L. R. 100) followed.

Silva v. Wijeysinghe (20 N. L. R. 147) not followed.

THE plaintiff-appellant sued the first to fourth defendants-respondents to recover a sum of Rs. 2,000 due on a mortgage bond executed by them in his favour, and he joined the fifth to nineteenth defendants-respondents as parties to the action in order to obtain a hypothecary decree. The fifth to nineteenth defendants had purchased the mortgaged land, when it was sold in lots under a decree for sale entered under section 4 of the Partition Ordinance, subsequent to the mortgage. The learned District Judge ordered a decree against the first to fourth defendants on the money count, but dismissed the action against the fifth to nine­teenth defendants. From this order the plaintiff appeals.

H. V. Perera, K.C. (with him P. A. Senaratne), for the plaintiff, appel­lant.-The plaintiff-appellant had two mortgage bonds over this land. In the partition action he intervened and disclosed one of the bonds. With regard to the other, he was under the misapprehension that it referred to another land. The learned District Judge held that he was estopped from claiming a hypothecary decree against the fifth to nineteenth defendants. Under the Partition Ordinance there is no duty cast on a mortgagee to disclose the mortgages. By sections 8 and 12 of the Ordinance the rights of mortgagees are conserved. The fact that he was a party in the partition action would not operate as res judicata as there is no adjudication with regard to the bond.

L. A. Rajapakse (with him J. R. Jayawardana), for fifth to ninth, eleventh to thirteenth, sixteenth and eighteenth defendants,  respondents.-The appellant says his only interest in the land to be partitioned was that he

had two mortgages, affecting undivided shares. He admits he disclosed one and not the other, because he thought it did not apply to this land.

The appellant need not have intervened in the action at all, because the Partition Ordinance conserves his rights ; but once he elected to intervene in the action, he was under a legal duty as a party to the action to disclose all his interests in the subject-matter of the action. See : section 34 of Civil Procedure Code. The proceeds of the sale have been distributed among the parties. The appellant is, therefore, estopped as against the purchas

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