100-NLR-NLR-V-24-PDINONA-v.-RODRIGO.pdf
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Present: Porter J.PODINONA v. RODRIGO.
309—’C. R. Oampola, 4,115fF.
Lis pendens—Action for declaration of title and damages, pendente life—Judgment as prayed for—Payment of totted costs—How longis action pending t
Plaintiff instituted an action for declaration of title to a share ofland, and prayed for damages, Us. 5 per mensem, pendente life.Plaintiff obtained judgment as prayed for. Judgment wasaffirmed in appeal. Defendant paid plaintiff’s taxed costs in full.Plaintiff took no steps to obtain possession thereafter for aconsiderable time, and issued writ for damages.
Held, in the circumstances, further damages, were not payableafter final decree in appeal and full payment of the plaintiffs taxedcosts.
T HE facts appear from the judgment.
Hayley, for defendant, appellant.
H. H. Bartholomeu8z (with him R. G. Fonseka), for respondent.
Cur adv. vult.
December 13, 1922. Porter J.—
The plaintiff instituted this action for a declaration of title to anundivided 18th share of a land called Awanpelahena, and prayedfor damages, pendente lite. After trail the learned Commissionergave judgment for the plaintiff, as prayed for, with costs. Fromthis judgment the defendant appealed to this Court, which affirmed thejudgment. The defendant-appellant has paid the plaintiff'staxed costs in full. It is contended by the plaintiff that as thedecree awarded daihages, pendente lite, it is open to the plaintiff totake no steps to obtain possession of the land, and to issue writ forthe damages at Rs. 5 per month for an indefinite period. Thedefendant-appellant raised objection to this contention, and theobjection was heard on October 31, 1922, and the learned Com-missioner refused to uphold the objection. From this order thedefendant appeals, and contends that after the final decree waspronounced and affirmed in appeal that there was no longer anylis psndens.
The only question I have to decide is whether there is or is notany lis pendens ? In my opinion there is no longer, any lis pendensbetween the parties during which further damages can accrue to the
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Podinonav. Rodrigo
plaintiff. The learned Commissioner has arrived at the conclusionthat- the case of Silva v, Fernando * is decisive on this point. Thiscase did, in fact, decide that an action can be said to be pending,even after judgment, until judgment is satisfied by execution (perBertram C.J.).
The question to decide is whether, in fact, there is a continuanceof litis contestatio, or whether all the questions in dispute havebeen decided. For instance, a decree for an account would notnecessarily determine a lie pendens.
In the present case, however, all disputes between the parties hadbeen finally settled, and the plaintiff’s taxed costs paid in full.
The case of Silva v. Fernando (supra), already referred to, was anaction on a mortgage bond, and I think a distinction can clearly bedrawn between such actions and the present one. I think thelearned Commissioner was in error, in holding that further damageswas payable after final decree, appeal, and full payment of theplaintiff’s taxed costs.
I would therefore allow this appeal, and set aside the orderappealed from, with costs.
Appeal allowed.
1 {1922) 23 N. L. R. 39.