1950 Present: Dias S.P.J. and Gunasekara J.

PERERA, Appellant, and DIAS, Respondent

S. C. 190-D. C. Colombo, 16,387/M

Mortgage-Co-mortgagors-Payment of interest by one of them-Effect on prescription

The obligation under a mortgage is indivisible. A payment, therefore of interest by one of the mortgagors would be a payment on behalf of all, for purposes of prescription.

APPEAL from a judgment of the District Court, Colombo.

S. J. V. Chelvanayagam, K.C., with E. S. Amerasinghe and V. S. A. Pullenayagam, for the defendant appellant.

H. W. Jayewardene, with D. R. P. Goonetileke, for the plaintiff respondent.

Cur. adv. vult.

November 29, 1950. DIAS S.P.J.-

Paulu Fonseka and his two sons Aloysius and Edward were the owners of an undivided 13/16 of 31, Bloemendhal Road, They by mortgage bond 490 of October 3, 1929, mortgaged their shares to one James Fernando, who in D. C. Colombo, 10,869/M put the bond in suit. That action was instituted on September 29, 1939, just before the cause of action on the bond became barred by prescription. James Fernando failed to register the lis pendens. Under the mortgage decree P1 dated October 11, 1940, the shares which had been hypothecated were ordered to be sold. The sale took place on July 15, 1942, when the plaintiff (an outsider) purchased the shares and obtained deed P2 dated April 5,.1943. The plaintiff therefore by paying the purchase money redeemed the 13/16 share of these premises from the mortgage.

The plaintiff then discovered that the owners of the whole land including Paulu Fonseka and his two sons (the mortgagors) had by deed DL dated June 20, 1940, sold the whole land to a person called James (not the plaintiff to the mortgage action). This purchaser had been procured by the defendant-appellant who was the son-in-law of Paulu Fonseka. James by deed D2 dated September 20, 1943, conveyed the land to the defendant-appellant.

The parties are agreed that the mortgage action did not bind the transferees on the deeds Dl and D2 by reason of the non-registration of the lis pendens in the mortgage action. Therefore, the defendant obtained the land freed from the effect of the mortgage action as regards 13/16. The parties are also agreed that under such circumstances, the plaintiff would have the right under section 11 of the Mortgage Ordinance (Chapter 74) to sue the defendant for a declaration that he (the plaintiff) has a hypothecary charge on the land in the manner provided by section 11.

In the present action the plaintiff sued the defendant under section 11 on August 14, 1945, claiming a sum of Its. 1,071 .50 which is the price he paid at the mortgage sale. The District Judge having held in favour of the plaintiff, the defendant appealed to the Supreme Court.

The case was first argued before the present Chief Justice and myself. It having been conceded that the plaintiff had the right to seek relief under section 11 of the Mortgage Ordinance, the substantial question urged by the appellant was whether plaintiff's claim under section 11 has been barred by section 5 of the Prescription Ordinance (Chapter 55). The appellant's submission was that what was kept alive by section 11 of the Mortgage Ordinance was the original mortgage, which on August 14, 1945 (the date on which plaintiff filed the present action), would have been prescribed, and that plaintiff therefore would be out of Court, unless it could be shown in terms of section 5 of the Prescription Ordinance that the action was instituted " within ten years of the last payment of interest thereon ".

The Judge said : " This case must go back for evidence on the issue of prescription. The plaintiff in the mortgage action (James Fernando) alleged in his plaint that interest had not been paid to him for a period of five years. This presupposes that interest for the five years had been

paid. There is no evidence before the Court as to the actual dates on whic