COORAY v. PERERA

144-NLR-NLR-V-17-COORAY-v.-PERERA.pdf


( 460 )
1914.
[Full Bench.]
Present : Wood Renton C.J., Pereira J., and De Sampayo A.J.COORAY v. PERERA.
238—D. C, Kahttara, 5,354.
Lie pendens—Action not lis pendens between dal* of order of abatement(402 C. P. C.) and the setting aside of the order.*
Per Wood Bkxton C.J. and Be Samieto A.J. (Pereira J.dissentients).—Where in an action an order of abatement is enteredunder section 402 of the Civil Procedure Code, and the same is subse-quently set aside, the action cannot be regarded as having beenUs pendens during the period between the passing of the order andits being set aside.
Per Pereira J.—If during* the period referred to above the actionis not to be regarded as Us pendens, the aim and objeet of theprovision of the section allowing an order of abatement to be setaside would be defeated.
T
HE facts are set out in the judgment of De Sampayo A.J. asfollows: —
The. facts relevant to the point submitted for consideration maybe shortly stated thus. One Isabella, wife of Juan, mortgaged theproperty in question to the plaintiff by bond dated March 9, 1897.Under writ of execution issued against Juan personally "he Fiscalseized and sold the property to Aaron, to whom the Fiscal issuedtransfers dated November 11, 1899. Aaron sold the property toKaitan. On December 14, 1900, the plaintiff brought the actionNo. 2,336 on the mortgage bond against Isabella, making Aaronand Kaitan also parties to the action, but the plaintiff not havingduly prosecuted the action, the Court, on March 31, 1903, entered anorder of abatement under section 402 of the Civil Procedure Cede.Four years thereafter, viz., on January 20, 1907, Kaitan sold theproperty to the first defendant. Subsequently, on March 27, 1907,the Court,/ on the application of the plaintiff under section 403 ofthe Civil Procedure Code, set aside the order for abatement of themortgage action, the case was proqeeded with to decree, and theproperty was sold, and purchased by the plaintiff himself.
In this action there is a contest as to title to the property betweenthe plaintiff on the one hand, and the first defendant and the addeddefendant, to whom the first defendant has in turn transferred theproperty, on the other hand, the plaintiff contending that the saleto the first defendant in the above circumstances was pending themortgage action and was, therefore, subject to the result of thataction.
( 461 )
A. St. T Jayewardene, for plaintiff, appellant.—The* purchase bythe defendant was after the order of abatement, -and before the ordersetting aside.the order of abatement. The purchase was, therefore,pending the mortgage action, and is therefore void as against' rightsenforcible under the mortgage decree. The mortgage action waspending at the date of the sale. It was held in Allahakoon v.Wiikremesinghe1 that an order of abatement does not terminatethe action, but has generally on the effect of removing the casefrom the list of pending cases. See also Cave & Co. v. Erskine3.
If a suit abates and is revived within a reasonable time, there is nosuspension of a Its pendens. Hukm Chand’s Res Judicata, p. 698,s. 276.
In the same page Hukm Chand goes on to say that the dismissalof a suit with liberty to proceed de novo does not impair the effectof lis pendens of the former suit; by the immediate filing of a newsuit the plaintiff will be considered constant and continuous in theprosecution. Under our Code the Court has the power to reinstatea . case in which an order of abatement was made. The dismissalof an action with liberty to proceed de novo and the setting asidean order of abatement is in effect the same thing.
. Counsel also cited 29 All. 76, at pages 79-81.
Bawa, K.C. (with him Cooray), for .the defendants, respondents.—Allahakoon v. Wickremesinghe1 would appear to be an authorityagainst the appellant. It decides. that an order of abatement hasthe effect of removing a case from the list of pending, cases. How,then, could it be said to be a lis pendens ?
iCave <6 Co. v. Erskine3 is distinguishable. There the groundfor the. decision was that the order of abatement should never havebeen made.
1&14.
Ooaray v.PeTertt'
In India there is a Land Transfer Act which applies to alienationspending cases. The Indian cases do not therefore apply .to Ceylon.
There should be a registration of a lis pendens in England to,affect the title of the alienee of land. ‘ See. Encyclopaedia of the Laws■ of England, vol. VIII., p. 343.,.
A suit must be continuously prosecuted to be treated as lispendens. Counsel cited Hukm Chand, p. .70.4, s. 279.
. The passage- cited by appellant (Hukm. Chand 698) does not apply,as the order of abatement is silent as to plaintiff's right to proceedde novo.
The respondent is an* innocent purchaser, and he should not.suffer by an order made subsequent: to: his purchase. It would beimpossible to advise as .to the validity of titles if the order settingaside the order of abatement b.e given the effect which the appellant
seeks to give it.
'{1908) 4 A. C. S. 8.
‘{1902) 6 .V. L. B. 338,
( 462 )
1914.
Coway VmPerera
A Us pendens is terminated by lack of diligent prosecution. Inthis case the plaintiff was not diligent.
Counsel cited 49—D. C. Negombo, 9,148;1 3 Lorenz 28; Caspersz onEstoppel 328; 324; Murugupillai v. Muttulingamr Perera v. Silva,5
Jayewardene, in reply, cited Hulnn Chand 707.
Cur. adv. vult.
August 24, 1914. Pereira J.—
In this case the question referred to the Full Court for decision iswhether, where in an. action an order of abatement has been passedunder section 402 of the Civil Procedure Code and the same hassubsequently been set aside, the action could be said to haveoperated as lis pendens during the period between the passing of theorder of abatement and the order setting it aside. Modem Englishauthorities cannot help us in the decision of this question, becausein England, by Statute 2 Viet. ch. 5, a lis pendens should be regis-tered in order to bind an alienee of the land in dispute withoutexpress notice. Here, as in India, the doctrine applies generallyin the form in which it existed before the statute referred to aboveIn Bellamy v. Sabine,4 a leading case on the point, ijb was held thatthe doctrine as to the effect of lis pendent on the title of an alienee isfounded on the ground that it is necessary to the administration ofjustice that the decision of the Court in a suit should be binding,not only on the litigant parties, but on those who derive title fromthem. It seems to me that the aim and object1 of the provision ofsection 403 of the Civil Procedure Code, allowing an order of abate-ment to be se.t aside, would be defeated if the action were not to beregarded as lis pendens during the period referred to above, becausethe defendant might by conveying the land in dispute to a thirdparty immediately after the entering up of an order of abatementrender the whole action nugatory. An order setting aside an orderof abatement could only- be made where within a reasonable timethe plaintiff applies to the Court for that purpose, and proves to thesatisfaction of the Court that he was prevented by sufficient causefrom continuing the action. That being so, it seems to me to beunreasonable that where an order of abatement is set aside, theplaintiff should at any time until .the setting aside of the order bedeemed to have neglected to take the necessary steps to keep theaction afloat. Direct authority on the question under considerationcannot be expected, because neither under the Buies and Orders underthe Judicature Acts nor under the Indian Civil Procedure Code isthere anything similar to the provisions of sections 402 and 403 ofour Code; but Mr. A. St. V. Jayewardene has cited certain passagesfrom Hukm Chand’s treatise on the law of res judicata, which areas much in point- as they are sound in the exposition of the law dealt
* S, C. C. Min., July 6,1914.*3C.L. R. 92.
s (1910) 13 N.L. R. SI.*1 DeQ.dk I. m.
( 463 )
with. The learned author says : “ If a suit abates, and isrevived1914.
within a reasonable tune, there will be no suspension of lie pendens.pKRKIR^ j.
Nor is the effect of the.former suit as Its pendens impairedby the——
dismissal of a sui.t with liberty to proceed de novo; andby the
immediate filing of a new suit the plaintiff will be considered constantand continuous in the prosecution. ” If the concluding words ofibis passage mean anything, they mean that during the intervalbetween the two actions referred to the former action is to be deemedto have been pending. It lias been said .that the latter part of thispassage does not apply to the present case, because the order ofabatement is silent as to the plaintiff’s right to reinstate the action.
The mention.of such a right in the order would have Been entirelyout of place and absurd. No Court would make itself guilty ofsuch a proceeding. It is not provided for by the Code, but theCode itself substitutes for it a provision giving the plaintiff the rightto move for and obtain an order setting aside the abatement. I fail,indeed, to see .the difference (with reference to the question now underconsideration) between an ' order of abatement (where the law issilent as to a right in the plaintiff to reinstate the action) expresslygiving the plaintiff a right to reinstate, and an order of abatement(where the law expressly gives the plaintiff the right to reinstate theaction) with no mention of such right in the order.
It has been said that lis pendens is terminated by Jack of diligent-prosecution of the action; but when an order of abatement is made,and is subsequently set aside, the presumption clearly is that therewas no lack of active prosecution of the action, because, as observedabove, it is only on application- Being made within a reasonabletime, and the Court being satisfied that the plaintiff was “ prevented ”by sufficient cause from continuing the action, that an order ofabatement is set aside.
’Lastly, .the learned counsel for the respondent urged that innocentpurchasers would be greatly prejudiced by the doctrine of Us pendensbeing allowed to operate during the period mentioned above. Iconfess I cannot see the force of this argument. In our Courtscases sometimes last for years. How the addition of some furthertime to the life of a case by the period referred to above being deemedto be a part of the entire period of its existence can prejudice thepurchaser of the property in litigation who would not otherwise beprejudiced I fail to see.
I think that the appellant is entitled to succeed in his contention,and I would uphold it and order the respondent to pay him thecosts of the argument.
Wood Renton C.J.—
I regret that I have had to write my judgment in this case oncircuit, without access to. authorities which I should desire to discuss.
But I have formed an opinion on the point argued before three
( 464 )
1914.
Wood
Benton CL J.
Coway v.Perero
Judges, aud as it turns on the construction o£ section 402 of theCivil Procedure Code, and no.fl primarily on the doctrine of lis pendensunder Roman or English law, I shall not delay the further argumentof the appeal by waiting till my return from circuit before recordingit. I think that the fact that under section 402 there is an order ofabatement at once deprives the action abated of .the character of alis pendens, and that the reinstatement of the action by a subsequent-order under the proviso to section 403 of the Civil Procedure Codemakes it a Us pendens again as from the date of that order alone.To construe- sections 402 and 403 in any other sense would beproductive of great hardship to innocent purchasers between tiiedate of the order of abatement and that of the order setting theoriginal order of abatement aside.
I agree to the order proposed by my brother De Sampayo as tothe costs of the argument before three Judges. The case must belisted for argument on the other outstanding issues before twoJudges.
De Sampayo A.J.—
[His Lordship stated .the facts, and continued]
The doctrine of Us pendens is well known in Roman jurisprudence,upon which our law is based, and the decisions under the Englishcommon law, which exhibits the same principles, have in practicebeen applied in Ceylon. It is well-settled law that lis pendens isterminated, not only by the final decree, but by want of activeprosecution of the action, and our Civil Procedure Code appears tome to reduce to specific limits what active prosecution shall mean,for by section 402 it* is provided that “ if a period exceeding twelvemonths in the case of a District Court, or six mouths in the case of aCourt of Requests, elapses subsequently to the date of the last entryof an order or proceeding in the record without .the plaintiff takingany step to prosecute the action where any such step is'necessary,the Court may pass an order that the action shall abate> ’* In myopinion, where there is no diligent prosecution as so defined, and theCourt passes an order for the abatement of the action, the lis pendensis thereby determined. This is in accordance with the whole schemeof the Code, which has in view the speedy and final determinationof all litigation, and accordingly we find that section 403 providesthat “ when an action abates or is dismissed under the chapter, nofresh action shall be brought on the same cause of action. ” Thislatter provision means, and to my mind can only mean, that the lisby operation of the order of Court is finally determined. Indeed, Icannot conceive of a better way of putting an end to the action thanby providing that no fresh action shall be brought. No doubt thesection proceeds to enact, by way of proviso, that if the plaintiffmakes application within a reasonable time, and on sufficient ground-
( 466 )
the Court shall set aside the order of abatement or of • dismissal,and in that ease the Its which had died revives. Mr. Jayew&rdene,8a»at0
for the plaintiff, citing a passage from page 698 of Hukm Chand’s^
book on the law of tea judicata, contended that on such revival the Ooamyv,action must be taken to have been alive all the time for all **®r*rapurposes. The citation is to the effect that " if a' suit abates and isrevived within a reasonable time there will be no suspension of a/is pendene,” and refers for its authority to certain Americandecisions which are not available to me. I do not know the actualrules of procedureprevailing inAmericaonthis subject, but
certainly neither in the Indian Code of Civil Procedure nor in theEnglish rules is there anything corresponding to section 402 of ourCivil Procedure Code, and, as I have already indicated, an ordermade under that section seems to me to make all the difference.
The citation fromHukm Chandproceeds:“Nor is this effect
of the former suitas lie pendeneimpairedbythe dismissal of a
suit with libertyto proceed denovo, andby the immediate
filing of his suit de novo the plaintiff will be considered constantand continuous in his prosecution.” From this I cannot gatherwhether the learned author means that even during the intervalthe former action is to be taken as pending, but if he does mean it,
I should feel it difficult to adopt that position. It is perhapssufficient to say that in the order for abatement in the presentcase no. liberty was given. But whatever the effect of an order ofabatement and the subsequent cancellation of the order mayin our law be as between the parties to the action, the real questionis whether a third party who purchases bona fide during the intervalis affected by the result of the revived action. No decision bearingon this precise point was cited at the argument, but counsel againrelied on Hukm Chand, page 699, where a passage is quoted from anAmerican text book. The quotation, however, expressly deals withthe case, of a purchase before the order, of dismissal or abatement,and not of a purchase after the order, and therefore does not helpthe appellant. But Hukm Chand himself proceeds to discuss, thelatter case, and says: “ The weight of authority appears to be. infavour of the view that if the dismissal is with leave to reinstatewithin a time limited, and the case is reinstated within the time,there should be a Us pendene, but if the order of dismissal iB silentas to the right to reinstate, the better opinion appears-to be thatthere iB no it's pendens.” As already stated, the order of abatementin this was without any qualification, and the second position,stated in the above extract as the result of the authorities, appears*to me to- apply. But with regard to this, it is attempted to supplythe silence in the order itself by reading into it the proviso in section408 of the Civil Procedure Code. I do not think that this can bedone. In the first place, no speoial time is limited by that provisofor an application to set aside, the order of abatement. In the next35-
( 466 )
1914.
Djb SamfavoA.J.
Oooray v.Perera
place, a proviso such as this, which leaves it to the party’s ownoption to apply or not, is not the Same thing as an express conditionappearing on the face of the Court’s order, for in the latter casethird parties who wish to enter into any transaction are .madeaware of the exact situation. I do not think that the law intendsto hang up titles to land and prevent all transactions indefinitelyuntil such time as the plaintiff may be pleased to revive his actionafter it has been ordered to abate in consequence of his own default.In this connection it was suggested that the cancellation of an orderof abatement would necessarily imply that the plaintiff was notin actual default, and that the order must be taken -to be inoperativeas though it had never been made. I cannot assent to this latterproposition. The point of time for consideration is the date of thepurchase by the third party, and since at that date the order ofCourt stood on the record, the third party purchaser is not concernedwith the question whether the order was wrong in view of thenew facts subsequently put before the Court in support of theapplication for cancellation.
To uphold, the contention on behalf of the plaintiff would be ineffect to allow the doctrine of lis pendens to create pitfalls forintending purchasers, and I do not think that the law intends such-a result. I think I may apply the analogy of a writ of error tosection 403 of the Civil Procedure Code, for proceedings on a writof error as distinguished from an appeal have not the effect ofcontinuing the lis pendens, and any alienation in the meantime isnot subject, to the result of the writ. Another analogy is that oforders opening up judgments for default of personal service of-process. With regard to such cases, Hukm Chand, page 699, saysthat, the weight of authority is in favour of the position that judg-ments and decrees entered upon constructive notice are final andunconditional, and that sales made to bona fide purchasers are valid,'and he refers to the American case of Shudder v. Sargent,_ Apart fromsuch analogies as these and consideration of principles, I find thatat page 698 of Hukm Chand, which is so largely depended on bycounsel for the plaintiff, it is expressly stated that it is generallyagreed that where the suit is dismissed for want of prosecution andis afterwards reinstated, the doctrine of lis pendens is not applicableto one who purchases after the dismissal and before the revival ofthe suit.
For the reasons above given, I am of opinion that the firstdefendant’s purchase, having been effected before the plaintiff’smortgage action was revived by the cancellation of the order ofabatement, is not subject to the ultimate result of the mortgageaction. I would order the plaintiff to pay the costs of the argumenton this point before the Full Bench.
Appeal dismissed after further argument on the facts.