49.
| (1) Any person, not being a party to a partition action, whose rights to the land to which the action relates have been extinguished or who is other-wise prejudiced by the interlocutory decree entered in the action, may, by separate action, recover damages from any party to the action by whose act, whether of commission or omission, such damages may have accrued and where the whole or any part of such damages cannot be recovered from any such party, recover such damages or part thereof from any other person who has benefited by any such act of such party. Any person who has benefited by such act may be made a defendant in such separate action and shall, if damages are awarded in that action, be bound by the award to the extent of such benefit as may be determined by the court, to be that derived by Mm from such act. |
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| (2) Where such action for damages as is referred to in subsection (1) of this section is instituted and is registered as a lis pendens under the Registration of Documents Ordinance in, or in continuation of the folio in which the said interlocutory decree was registered before the decree of partition is entered under section 36 or the schedule of distribution is approved by the court under section 47, in the partition action relating to that land, then, if any damages are awarded to the plaintiff in the action for damages-
| | (a) the amount of such damages shall be a charge on any share of the land or any money allotted in such partition action to the defendant or each of the defendants In the action for damages, and | | |
| | (b) such charge shall rank next in priority to the charge referred to in subsection (2) of section 34 and the charge referred to in section 63, and such charge shall be enforceable against such party and any person deriving a right, title or interest therein or thereto from such party, not being a transferee for value without notice of the right, title or interest of such plaintiff. | | |
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| (3) For the purposes of subsection (1) of this section a party to a partition action on whom summons had not been served or a party to such an action being a minor or a person of unsound mind, who shall not have been duly represented by a guardian ad litem, shall be deemed to be a person who was not a party to the said action. And where an application for special leave under the provisions of subsection (4) of section 48 had been refused without an adjudication upon the merits of the claim set up by such party, the order refusing leave shall not be a bar to an action under subsection (1) of this section by the same party. |
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Sri Lanka Consolidated Acts