Nanayakkara V. Abeygunawardene

1949     Present : Nagalingam and Windham, JJ.

NANAYAKKARA, Appellant, and ABEYGUNAWARDENE,
Respondent

S. C. 332-D. C. Galle, L 755

Mortgage Ordinance-Hypothecary action-Lis pendens not registered-Sale by mortgagor after decree-Sale in execution--Who has superior title- Necessary party-Section 6-Chapter 74.

Section 6 of the Mortgage Ordinance must be read as limiting the scope of its provisions to necessary parties in esse at the time that a hypothecary action is instituted.

The title of a purchaser under a hypothecary decree does not relate back to the date of his bond.

APPEAL from a judgment of the District Judge, Galle.

H. W. Jayewardene, for plaintiff appellant.

E. B. Wikramanayake, K.C., with Cyril E. S. Perera, for defendants respondents.

Cur. adv. vult.

May 9, 1949. Nagalingam J.-

This is an action by a purchaser under a mortgage decree for a declaration of title to the laud purchased by him against a private purchaser from the mortgagor who obtained his conveyance subsequent to the date of the mortgage decree but prior to both the sale and the conveyance to the mortgage purchaser.

For a proper appreciation of the legal points involved it may be best to set out a few salient facts. The mortgage was executed in 1936. The mortgagee put his bond in suit in 1941, and obtained his decree the same year. The decree of the District Court was appealed against and the judgment of the Supreme Court was delivered on March 19, 1942, affirming that of the lower Court. Five days later, namely on March 24, 1942, the mortgagor transferred by deed 1D1 the land mortgaged to the 1st defendant who by a later deed conveyed it to the 2nd defendant. The property hypothecated was under the decree sold on August 27, 1942, and purchased by the plaintiff to whom conveyance P6 of October 27, 1942, was duly issued.

The contest revolves round the question as to whether the plaintiff has a title superior to that of the 1st defendant. The case has been argued on the footing that no question of registration is involved. On behalf of the plaintiff-appellant Mr. Jayawardene relies upon section 6 of the Mortgage Ordinance Cap. 74 Legislative Enactments and contends that as the 1st defendant had not at the date of the filing of the plaint in the mortgage action registered his deed and furnished an address for service on him of legal documents as required by sub-section (2) thereof the decree entered in the mortgage action by virtue of sub-section (3) thereof binds the 1st defendant.

Section 6 of the Mortgage Ordinance it is true in sub-section (1) thereof declares that every person is a necessary party to a hypothecary action who has any mortgage on or interest in the mortgaged property to which the mortgage in suit has priority. Sub-section (2) proceeds to say that a party declared to be necessary under sub-section (1) shall not be a necessary party unless the instrument under which the necessary party derives his title is duly registered and the party has also furnished an address for service of legal documents on him. But it is clear both from a reading of sub-section (1)

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