Appuhamy V. Mudiyanse Et Al.,

1937   Present: Soertsz J. and Fernando A.J.

APPUHAMY v. MUDIYANSE et al.

194-D. C. (Inty.) Nuwara Eliya.

Lis alibi pendens-Actions under section 247 of the Civil Procedure Code pending-Subsequent action rei vindicatio against same defendant- Section 247 actions withdrawn-Right to maintain action rei vindicatio.

In two actions Nos. 11,980 and 11',979 of the Court of Requests, Nuwara Eliya, the present first plaintiff and the present second plaintiff respectively sued under section 247 of the Civil procedure Code one Ramanathan Chetty, who had seized this land on a writ against the present defendant, to have it declared that it was not liable to seizure under that writ and they made the present defendant a party alleging that he was in wrongful possession of their shares of land and praying that they be declared entitled to those shares and that the defendant be ejected therefrom.

While those actions were pending the plaintiffs instituted the present action rei vindicatio in respect of the same land. On May 8, 1936, the defendant filed answer pleading that the plaintiffs were barred from maintaining the action in view of the cases pending in the Courts of Requests. On May 12, 1936, the plaintiffs' proctor moved in the Courts of Requests cases to withdraw them as against the present defendant, and to be allowed to bring a rei vindicatio action.

These motions were allowed, the proctor for defendant reserving any objection he may have " to the connected District Court case ".

Held, that the plaintiffs were not barred from maintaining the present action.

Annamalay Chetty v. Thornhill  (34 N. L. R. 381) referred to.

IN C. R. Nuwara Eliya, 11,980, the first plaintiff sued the present defendant and one Ramanathan Chetty to have it declared that a certain land was not liable to be seized under a writ against the defendant. The second plaintiff had instituted a similar action, C. R. Nuwara Eliya, 11,979, against the defendants. While those actions were pending, the two plaintiffs instituted a rei vindicatio action in respect of the same land on February 8, 1937. The defendants filed answer on May 8, 1937, pleading inter alia that the plaintiffs were barred from maintaining the present action in view of the Court of Requests' cases. Thereafter the plaintiff's proctor moved in the Court of Requests' cases to withdraw them as against the present defendant and to be allowed to bring a rei vindicatio action. These motions were allowed, the Court minuting that the proctor for the defendant " reserves any objection he may have

for the connected District Court case". On the date of trial various issues of law were framed. The learned District Judge held in favour of the plaintiffs and the defendant appeals from that order.

H. V. Perera (with him N. Gratiaen), for the defendant, appellant.- Under the Civil Procedure Code, 1889, only one action could be brought. The plaintiff in that action must go on with his case. If there are two actions the second cannot have a better fate than the first.

[SOERTSZ J.-What is the position if he withdrew the action because he had instituted another action ?]

Section 406 gives the conditions under which an action may be withdrawn. If no permission is granted, the plaintiff has to pay costs and he cannot bring a further action. (S. P. A. Annamalay Chetty v. Thornhill  [1 (1931) 33 N. L. R. 41]`) There the learned Judges say that a judgment-debtor need not be a party to a 247 action. The plaints in the Court of Requests' cases show that they were not merely 247 actions. Further, if the cases had been withdrawn without liberty to bring another action, then this action is barred.

This action is not an action subsequent to the Court of Requests' actions, but one instituted before the withdrawal. The permission to withdraw an action doss not cover a case which has been instituted before. (Shidramappu Muttappa v. Mallappu Rama

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