067-NLR-NLR-V-29-IBRAHIM-SAIBO-v.-PALLAKU-LEBBE-et-al.pdf
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Present: Fisher C.J. and Drieberg J.
IBRAHIM SAIBO v. PALLAKU LEBBE et ah155—D. C. (.Inty.), Colombo, 1,614.
Lis pendens—Mortgage of movables pendingaction—Bes litigiosa—
Doctrine applicable to movables.
A seized certain movable property in execution o! a decreeagainst B, when the property was successfully claimed by G.While an action under section 247 of the Civil Procedure Codebrought by A against B and G was pending, 0 mortgaged theproperty with D. D put -the bond in suit, and having obtained amortgage decree claimed the proceeds of the sale of the property heldunder A’s decree in the 247 section.
Held that the mortgage executed by C during the pendency of A'saction was void as against the rights acquired by A under bisdecree.
Under the Boman-Dutch law the doctrine of lis pendens isapplicable to movable as well as to immovable property.
PPEAL from an order of the District Judge of Colombo.
Hayley, Ii,G. (with Bartholomeusz), for petitioner, appellant.
H. V. Perera) for plaintiff, respondent.
January 23, 1928. Drteberg J.—
The plaintiff-respondent who had a money decree against the 1stdefendant in this action seized movable property lying in certainshops in Mat-ale. This property was successfully claimed by M. R.Seyadu Mohamed Ibrahim Saibu referred to in the proceedings asSeyadu.
On October 16, 1922, the plaintiff-respondent brought action(D. C., Kandy, 30,894) under the provisions of section 247 of theCivil Procedure Code, against the defendant and Seyadu for adeclaration that the property was liable to be sold in execution ofhis decree against the 1st defendant. Judgment was entered infavour of the plaintiff-respondent in the District Court on April 27,1925, and it was affirmed in appeal on December 16, 1925.
During the pendency of D. C. Kandy, 30,394 and after issues hadbeen framed, Seyadu on May 10, 1924, mortgaged the propertywith the appellant. The appellant sued on his bond in D. C. Kandy,32,797 and obtained a mortgage decree.
1928.
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1928.
Dbxebsbq J.
IbrahimSaibo v.PaUakuLebbe
The property was sold under the writ of the plaintiff-respondent,and the appellant claimed the proceeds of sale on his mortgagedecree in D. C., Kandy, 32,797.
The appellant says that as he was not a party to D. C.t Kandy30,394, he is not bound by the decree in it and that it is open to himto prove that Seyadu was the owner of the property, and thattherefore it was not liable to be sold in execution of the plaintiff-respondent’s decree against the defendant.
The plaintiff-respondent contended that as the property mortgagedwas to the appellant was res litigiosa, while D. C., Kandy, 30,384,was pending, the mortgage was void against the rights acquired bythe plaintiff-respondent under the judgment in that case.
The learned District Judge upheld this contention of the plaintiff-respondent and held that he was entitled to the proceeds of the sale.
Mr. Hayley contended that the doctrine of lis pendens does notaffect movable property. This is undoubtedly so under the law ofEngland (Wigram v. Buckley1). The Roman-Dutch law text books,however, draw no distinction between movable and immovableproperty, and there is express authority that the principle appliesequally to movable property (Voet XLIV. 6t 1: Nathan’s CommonLaw of South Africa, Vol 4, s. 2173).
The appellant cannot therefore claim the proceeds of sale againstthe plain tiff-respondent.
The appellant also claimed that the respondent was estoppedfrom denying that Seyadu was the owner of the property by reasonof the conduct of the judgment-debtor, who, it is said, allowed Seyaduto hold himself out as the owner of the business and the 3hopsin which the property was. The learned District Judge has rightlyheld that even if the judgment-debtor had acted in such a mannerit could not operate as an estoppel against the plaintiff respondent.
The appeal is dismissed with costs.
Fisher C.J.—I agree.
Appeal dismissed.
1 C. A. {1894) 3 Chancery 483.