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MUHEETH v. NADARAJAPILLAI et al.
NLR19V461
[FULL BENCH.]
1917 Present: Wood Renton C. J. and Shaw and De Sampayo JJ.
MUHEETH v. NADARAJAPILLAI et al.
41-D. C. Colombo, 45,446.
Lis pendens-Action on a mortgage bond-Lease by a mortgagor before service of
summons but after institution of action.
A lease by a mortgagor after the institution of an action on the mortgage bond
by the mortgagee, but before service of summons on him, cannot be regarded as
having been executed pendente lite. A lis pendens arises only upon the service
of summons, so as to affect any dealing with the subject of litigation by the
party . defendant.
The rule of lis pendens applies as much to a mortgage action as to any other
action relating to immovable property.
THE
facts are set out in the judgment.
Bawa, K.C., and Samarawickrema, for plaintiff, appellant.
A. St. V. Jayewardene,
for defendants, respondents.
Cur. adv. vult.
June 19, 1917. WOOD RENTON C.J.-
The argument of this appeal has been inevitably delayed by the simultaneous
absence of my brother De Sampayo and myself on circuit. The material facts are
these. Florence Casie Chetty and her husband, by deed No. 110 dated November 8,
1912, mortgaged to T. A. J. Noorbhai an undivided one-third of the premises No.
15, Fourth Cross street, in the Pettah of Colombo, to which she was entitled. On
November 14, 1913, the mortgagee put the bond in suit, and, in execution of the
decree in that action, the property was, on December 3, 1914, sold by the Fiscal
and purchased by the plaintiff, who obtained a Fiscal's transfer on July 19,
1915. After the filing of the plaint, but before the service of the summons, in
the mortgage action, Florence Casie Chetty , by deed No. 2,975 dated October
25, 1913, leased the property to the defendants for a period of four years,
commencing from March 1, 1915, at an annual rent of Rs. 750, a sum of Rs. 1,580
being payable as an advance. The plaintiff sues in this action for a declaration
of his title to the property and for the recovery of damages from, and the
ejectment of, the defendants, who, he alleges, have been in, wrongful possession
of the property since December 3, 1914. The defendants in their answer relied
upon the lease above mentioned, pleaded that
they had also taken a lease of the remaining two-thirds of premises-their title
under this lease was admitted at the trial and contended" further that the
action was not maintainable, as they had not received notice of it from the
plaintiff.
The main issue in this case is whether or not the lease by Florence Casie Chetty
of the one-third share in suit should be regarded as having been executed
pendente lite. That question in turn depends on the point of time at which,
under the law of this Colony, an action may be said to be " pending." The
learned District Judge, following the decision of Middleton and Grenier JJ. in
Perera v. Silva,1 held that there is no lis pendens till knowledge of the action
has been brought home to the defendant by service of the summons, and
consequently that as the defendants had not in fact been served with summons
when the lease was executed, the plaintiff, while he had a right to a
declaration of title to his admitted interests in the premises, could not
recover damages against them.
On this part of the case I entirely agree with the learned District
Judge. While it is no doubt true, as was pointed out by the Court
of Appeal in Chancery in Bellamy v. Sabine,2 in passages so well .
known that it is unnecessary to cite them at length, that a lis
pendens affects a litigant, not through the doctrine of notice, but
because the policy of the law will not allow a litigant to create
pendente lite rights to the property in dispute to the prejudice of
his opponent, the law of England has never excluded the question
of notice from consideration in this matter. The theory on which
the effect of lis pendens rested was that the proceedings in courts
of just
