Present: Bertram C. J. and Ennis J. 1924.

SAMARA et al. v. ELVES.

 326-D.C.Kandy, 29,151.

Lis pendens-Ordinance No. 29 of 1917-Applicable to cases pending at the date of passing of the Ordinance-Prescription-Uninterrupted possession -Possession need not continue till date of action.

Section 3. of the Land Registration Amendment Ordinance, No. 29 of 1917, which enacts that a lis pendens shall not bind a purchaser unless and until it is registered, applies to a lis pendens initiated but not concluded before the passing of the Ordinance.

N. E. Weerasuriya, for plaintiff, appellant.

H. V. Perera, for defendant, respondent.

February 11,1924. BERTRAM C.J.-

This case raises a question of law. 'That question is whether section 3 of the Land Registration Amendment Ordinance, No. 29 of 1917, as amended by Ordinance No. 21 of the following year, which declares that "a lis pendens shall not bind a purchaser unless and until it is registered," applies to a lis pendens initiated but not concluded before the passing of the Ordinance.

The facts are these : Plaintiffs and a brother (since dead) brought an action against one Babappu (since dead) and his son Eporis for the recovery of a piece of land on March 14, 1912. At the date of the institution of the action Babappu and Eporis had already been for some years in possession. The action, for various causes, was protracted; other defendants were substituted for the brother who died; judgment was not entered until July 8, 1920. Now, it is settled that a lie pendens continues pending until the completion of the execution. But for recent legislation, therefore, plaintiffs would have been protected up to the time when they obtained possession under the execution. They could have snapped their fingers at any person who in that interval bought from the defendants, or against any purchaser at a Fiscal's sale against the defendants. Such a purchaser did in fact present himself. In pursuance of a sale on January 21, 1920, he obtained a Fiscal's -transfer on July 15, 1920, that is to say, after plaintiffs' judgment and before execution. But for recent legislation he could have got nothing by this Fiscal's transfer, because any such transfer would have been subject to the execution in plaintiff's action. If he was bound by plaintiffs' action his purchase was worthless to him,

because the title was in plaintiffs and was so declared by the judgment. If, however, he was not bound by the action, then he could count his predecessor's possession right up to the time when it first began, and could thus show a prescriptive title against the plaintiffs when sued in the present action.

The difficulty is that the Ordinance referred to came into operation while the action was still pending, and the question arises whether such an action is affected by the Ordinance.

There is always a strong presumption that an enactment is not intended to have a retrospective operation so as to destroy existing vested rights, but the question here is whether the Ordinance is to affect a process which is initiated before the date of its enactment, but not yet completed. There are two authorities in the English books which have a bearing on this question. The first is Evans v. Williams.[1 {1860) 34 L. J. Ch. 661.] In that case there had been a change in the law with regard to registration of judgments. During a certain period the law had been in the following position. A judgment had two effects: It bound the debtor's land and it gave the judgment-creditor priority as against other creditors in the administration of estates. For some time the law had been that though registration of a judgment was necessary for the purpose of binding land, it was not necessary for the purpose of obtaining the aforesaid priority. In 1860 the law was changed. For the purpose of this case it is only necessary to consider the provision dealing with judgments already regist