1945 Present: Keuneman, Jayetileke and Rose JJ.

SARAM, Appellant, and THIRUCHELVAM, Respondent,

73-D. C. Kegalla, 2/289.

Mortgage-Usufructuary mortgage in favour of A-Subsequent mortgage in favour of B-Right of subsequent mortgage to discharge the previous mortgage.

L granted to the defendant a usufructuary mortgage bond in 1940 and subsequently in 1942 granted another usufructuary mortgage bond to the plaintiff. Plaintiff brought the amount of the earlier bond into court, not in the name of the debtor but in his own right as subsequent mortgagee, and asked for an order that the defendant should accept the said sum and give a discharge of the bond.

Held, that in the absence of proof that the prior mortgagee (the defendant) had taken steps to enforce his rights the plaintiff was not entitled to redeem the mortgage granted to the defendant.

CASE referred to a Bench of three Judges in terms of section 775 (1) of the Civil Procedure Code. The facts appear from the argument.

E. B. Wikremanayake (with him H. Samaranayake), for the plaintiff, appellant.-By deed of August 14, 1940 (D 2), one L granted a usufructuary mortgage to the defendan