Aiyathurai V. Thuraisingahm Et Al.,

1942 Present: Howard C.J. and Soertsz J.

AIYATHURAI v. THURAISINGHAM et al.

24-D. C. Jaffna, 22,284.

Conveyance in mortgage action-Sale of undivided shares in mortgaged property-Partition action pending sale-Allotment of divided portions to mortgagors-Application by purchaser for writ of possession-Rectification of deed.

In execution of a mortgage decree, the appellant purchased the property mortgaged, an undivided 2/5 share of a land, and a conveyance was executed by the Commissioner in favour of the appellant on November 5. 1940.

While the mortgage action was pending an action was instituted to partition the land mortgaged, to which the mortgagors were parties. In the final decree entered on August 29, 1940, a year after the sale of the land to the plaintiff, certain divided lots were allotted to the mortgagors in lieu of 'their undivided shares, subject to the decree entered in the mortgage action.

On February 6, 1941, the appellant moved the District Court to issue writ to the Fiscal to deliver the divided lots to the appellant. The respondents, the mortgagors, opposed the application.

Held, that the appellant was entitled to have his conveyance rectified by the substitution of the divided lots in place of the undivided share" and to an order for the delivery of the said divided lots to him.

Markar v. Siman (1 Matara Cases 9) followed.

Mudalihamy v. Appuhamy (36 N. L. R. 33) distinguished.

APPEAL from an order of the District Judge of Jaffna.

H. V. Perera, K.C. (with him S. Saravanamuttu), for the purchaser, appellant.

No appearance for the respondent.

Cur. adv. vult.

June 29,1942. HOWARD C.J.

This is an appeal from an order of the Additional District Judge of Jaffna, dismissing an application by the appellant, the purchaser, under a mortgage decree entered in the case to have his conveyance rectified by the substitution of divided lots in lieu of undivided lots of the land sold. A certain P. Sinnatamby Aiyathurai, the assignee and substituted plaintiff in the case, was entitled to all rights and title and interest in a

mortgage decree obtained by the original plaintiff in respect of an Undivided two-fifth share of certain land belonging to the respondents. On October 14, 1939, on a commission issued by the District Court of Jaffna in execution of the said decree, the said two-fifth share belonging to the respondents was sold by the Commissioner to the appellants. On application made to the District Court to have the sale confirmed, an objection taken to such confirmation was raised by the respondents and the sale was set aside. On appeal to the Supreme Court the order of the lower Court was set aside and the sale confirmed on October 30, 1940. A commissioner's conveyance, dated November 5, 1940, was executed in favour of the appellant. Whilst the mortgage action was pending, case No. 11,072 of the District Court of Jaffna was filed to partition the said land amongst the various co-owners. In that action, the first and second defendants were the respondents in this appeal. The final partition decree was entered on August 29, 1940, about a year after the sale of the two-fifth share in the land to the appellant. By the said p2rtition decree, lots 4 and 5 were allotted to the respondents, subject to the mortgage decree in favour of the said P. Sinnetamby Aiyathurai, the mortgage decree holder, in lieu of their undivided two-fifth share. On February 6, 1941, the appellant moved the District Court to issue with to the Fiscal to deliver possession of lots 4 and 5 to the appellant. The respondents objected to the delivery of possession of the entirety of lots 4 and 5 and contended that possession could be given of only two fifth share of the said lots. On September 4, 1941, the appellant moved the District Court that an. endorsement might be made on the said conveyance, substituting the words, "lots 4 and 5 according to Final P

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