Present: De Sampayo J. and Schneider A.J.

PERIANAN CHETTY v. FERNANDO.

331-D. C. Colombo, 52,613.

Lis pendens-Sale in execution pending action for specific performance.

A by deed agreed to sell a land to defendant within three months. The defendant brought an action - for specific performance and obtained decree in September, 1911. The deed of conveyance in pursuance of the decree was executed in November, 1911. In the meantime a creditor of A sold the land in execution of a money decree in July, 1911, when plaintiff became purchaser. Fiscal's transfer was issued to plaintiff in March, 1912.

Held, that defendant had superior title.

The doctrine of lis pendens is applicable to sale in execution. An action for specific performance is a lis, to which the doctrine is applicable.

THIS was an action for declaration of title. The facts are set out in the judgment of the District Judge (L. M. Maartensz, Esq.):-

By an indenture No. 1,007 dated September 15, 1908, A. 8. Alwis agreed to sell and convey to the defendant an undivided one-third share of the land in question within three months from the date thereof, and agreed further that in default he should be liable, in addition to his liability, to be compelled to perform the agreement, to pay the defendant a sum of Re. 500 as liquidated damages.

The defendant sued on the agreement in case No. 31,593, D. C. Colombo, on October 17, 1910, and obtained judgment on September 4, 1911.

The Court executed a transfer of the land to the defendant on November 8, 1911.

In case No. 31,989, D. C. Colombo, one Nalla Caruppen Chetty sued the defendant to recover a sum of KB. 494 due on a promissory note. Judgment was entered for Nalla Caruppen Chetty on February 28, 1911. The land was sold on July 26, 1911, and purchased by Perianan Chetty, the present plaintiff. The sale was confirmed on October 14, 1911, and a Fiscal's transfer was issued to the purchaser on March 14, 1912. I may note in passing that the plaintiff made no effort to vindicate his title prior to this action filed on March 14, 1919.

The agreement No. 1.007 refers to an undivided one-third share of the land in dispute, but no issue was suggested regarding the extent of the land, and I presume there is no question between the parties on that point.

There can be no doubt that the execution sale at which the plaintiff purchased the land took place during the pendency of case No. 31,593, D. C. Colombo. Plaintiff's counsel contended that the sale in execution to the plaintiff was not affected by the rule of lis pendens, because (a) the action No. 31,593 did not involve a dispute concerning the right of dominium or ownership of the land in question: (6) the sale to plaintiff

was not a voluntary sale, but a sale in execution. In support of his first proposition, be cited sections 2, 3, 4, and 5 of chapter IX. of Sande's Restraints on Alienation.
 
Section 1 lays down that "a res litigiosa is a thing concerning the dominium or right of ownership, of which there is going on between the possessor and the plaintiff a dispute by judicial proceedings." Therefore, says Sande in section 3: "If there is no dispute about the dominium, but only about the servitude or any other right over a thing, then the right which has been subjected to judicial decision becomes litigiosum, but the thing does not, and therefore it can be freely alienated. "

In sections 4 and 5 it is laid down that an actio hypothecaria and a personal action do not make a thing res litigiosa. One of the questions to be decided is whether a sale pending an action to compel specific performance of an agreement to sell a land is void. This question must, I think, be answered by the application of the principle laid down in Bellamy v. Sabine, 1 that "the law does not allow litigant parties to give to others pending the litigation rights to the property in dispute - so as to prejudice the opposite party. " On