(Full Bench. ]

1914 Present: Wood Renton C.J., Pereira J., and De Sampayo A.J.

COORAY v. PERERA.

238-D. C. Kalutara, 5,554.

Lis pendens-Action not lis pendens between data of order of abatement (402 C. P. C.) and the setting aside of the order. Per Wood Renton C.J. and De Sampayo A.J. Pereira J. dissentiente).-Where in an action an order of abatement is entered under section 402 of the Civil Procedure Code, and the same is subsequently set aside, the action cannot be regarded as having been lis pendens during the period between the passing of the order and its being set aside,

Per Pereira J.-If during the period referred to above the action is not to be regarded as lis pendens, the aim and object of the provision of the section allowing an order of abatement to be set aside would be defeated.

THE facts are set out in the judgment of De Sampayo A.J. as follows: -

The facts relevant to the point submitted for consideration may be shortly stated thus. One Isabella, wife of Juan, mortgaged the property in question to the plaintiff by bond dated March 9, 1897, Under writ of execution issued against Juan personally the Fiscal seized and sold the property to Aaron, to whom the Fiscal issued transfers dated November 11, 1899. Aaron sold the property to Kaitan. On December 14, 1900, the plaintiff brought the action No. 2,336 on the mortgage bond against Isabella, making Aaron and Kaitan also parties to the action, but the plaintiff not having duly prosecuted the action, the Court, on March 31. 1903, entered an order of abatement under section 402 of the Civil Procedure Code. Four years thereafter, viz., on January 20, 1907, Kaitan sold the property to the first defendant. Subsequently, on March 27. 1907, the Court, on the application of the plaintiff under section 403 of the Civil Procedure Code, set aside the order for abatement of the mortgage action, the case was proceeded with to decree, and the property was sold and purchased by the plaintiff himself.

In this action there is a contest as to title to the property between the plaintiff on the one hand, and the first defendant and the added defendant, to whom the first defendant has in turn transferred the property, on the other hand, the plaintiff contending that the sale to the first defendant in the above circumstances was pending the mortgage action and was, therefore, subject to the result of that action.

A. St. V. Jayewardene, for plaintiff, appellant.-The purchase by the defendant was after the order of abatement, and before the order setting aside the order of abatement. The purchase was, therefore, pending the mortgage action, and is therefore void as against rights enforcible under the mortgage decree. The mortgage action was pending at the date of the sale. It was held in Allahakoon v. Wickremesinghe1 that an order of abatement does not terminate the action, but has generally on the effect of removing the case from the list of pending cases. See also Cave & Co. v. Erskine2.

If a suit abates and is revived within a reasonable time, there is no suspension of a lis pendens. Hukm Chand's Res Judicata, p. 698,

In the same page Hukm Chand goes on to say that the dismissal of a suit with liberty to proceed de novo does not impair the effect of lis pendens of the former suit; by the immediate filing of a new suit the plaintiff will be considered constant and continuous in the prosecution. Under our Code the Court has the power to reinstate a case in which an order of abatement was made. The dismissal of an action with liberty to proceed dc novo and the setting aside an 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 authority against the appellant. It decides that an order of abatement has the effect of removing a case from the list of pending cases- How, then, co