Chinnaswami Padayachi vs Darmalinga Padayachi

Krishnan Pandalai, J.—The defendant appeals from a decree awarding the plaintiff possession of 1 acre and 32 cents of land comprised in

A schedule with mesne profits. The dispute is between rival purchasers of the same property, in mortgage suits brought by the first and second

(simple) mortgagees, without impleading each other. The following are the material facts. Chakrapani, the owner of properties in A and B

schedules, mortgaged them to the defendant on 21st July, 1905. On 4th November, 1905, he mortgaged A schedule properties together with 19

cents of other land to one Ponnuswami. Ponnuswami''s(the second mortgagee''s)heirs sued the mortgagor in O.S. No. 601 of 1914. By Order 34,

Rule 1 they were not required to join the first mortgagee''in his suit and he was not joined accordingly, though they must have known that there was

a first mortgage on the A schedule property, as it was registered. The 19 cents of land which was not included in the first mortgage was sold first

and a part of the debt was realised. The decree-holders seem not to have taken any further steps to execute the decree for a considerable time

against A schedule property owing probably to the fact it was subject to a prior mortgage. In this state of affairs the defendant brought his suit on

the first mortgage in O.S. No. 274 of 1917 without impleading the second mortgagee and obtained a decree and in-execution bought the

properties in A and B schedules himself on 21st October, 1918 and obtained possession in January, 1919. The plaintiff obtained a transfer of the

decree in O.S. No. 601 of 1914 from Ponnuswami''s heirs and brought the A schedule property again to sale and purchased it himself in January,

1924. As he could not get possession he brought this suit in 1924. Thus A schedule property is the only property common to both mortgages and

in respect of it the plaintiff is a second mortgagee-purchaser who purchased in a suit first instituted, the purchase being later than that of the

defendant; and the defendant is a first mortgagee-purchaser who purchased in a later instituted suit, the purchase being earlier than that of the

plaintiff.

The plaintiff prayed for unconditional possession of A schedule property or in the alternative for permission to redeem A and B schedule

properties on payment of the first mortgage debt. The defendant offered to redeem the plaintiff''s second mortgage and if the Court should hold

that the plaintiff is entitled to retain the property on redeeming the first mortgage he claimed the value of improvements effected on A schedule

property. As both parties wanted to keep their purchase and for that purpose were willing to redeem each other, the real question was which of

them had the better title to the land and on what terms, if any, he should redeem the other. The second issue sufficiently covered this point and the

third issue raised the question of defendant''s improvements.

At the trial the plaintiff, no doubt on advice, gave up the prayer for alternative relief, i.e., possession on condition of redeeming the defendant''s

first mortgage debt and as the Munsif says elected to proceed to trial on the footing that he is entitled to unconditional possession of the property.

The second issue which raised the question whether the plaintiff or the defendant was entitled to redeem the other and keep the property was thus

dropped and with it the third issue was also dropped. The only issue left was whether the plaintiff was entitled to unconditional possession.

Both the Lower Courts have answered this question in the affirmative on the authority mainly of Chinnu Pillai v. Venkatasamy Chettiar ILR

(1915) 40 M. 77 : 30 M.L.J. 347. The Munsif held that the plaintiff has for the present become entitled to the property in A schedule subject of

course to the mortgage in favour of the defendant, if any. The meaning and effect of this is that the defendant is not entitled to use his mortgage as a

shield to protect his possession and that though the plaintiff as second mortgagee has only rights to the property subject to the first mortgage, the

latter must enforce such rights as he may still have by another suit and in the meanwhile give up possession. The learned Subordinate Judge relying

on certain passages in Chinnu Pillai v. Venkatasamy Chettiar ILR (1915) 40 M. 77 : 30 M.L.J. 347 took the same view. He concluded that the

only right which the defendant as first mortgagee has now got is to again sue on his mortgage impleading the plaintiff and that he is not entitled to

keep possession as against him. As any further suit on the first mortgage of 1905 would be time-barred after 12 years thereafter the result of the

above decision is that the first mortgagee is totally deprived of all rights under his mortgage, notwithstanding their formal because futile reservation.

And this for the single reason that he did not in his suit implead the second mortgagee.

In view of the numerous decisions of this Court on similar facts, V enkatanarasammah v. Ramiah ILR (1879) 2 M. 108, Muhammad Usan

Rowthan v. Abdulla ILR (1900) 24 M. 171 : 10 M.L.J. 347, Akatti Moidin Kutty v. Chirayil Ambu ILR (1902) 26 M. 486, Kutti Chettiar v.

Subramania Chettiar ILR (1909) 32 M. 485 : 19 M.L.J. 728 as to the preferential title between competing purchasers in different mortgage suits I

should have had no difficulty in deciding this case if it were not that opposite opinions have been expressed by two Benches of this Court as to the

soundness of some of the above decisions by reason of the Full Bench decision in Mulla Vittil Seethi Vs. Korambath Paruthooli Achuthan Nair and

Others, which laid down four general propositions as established by the decisions. In Venkatagiri v. Sadagopa-chariar (1911) 22 M.L.J. 129 a

Bench consisting of Munro and Sankaran Nair, JJ., considered that the Full Bench decision left untouched the principle of the above cases that the

first purchaser is on a question of preferential title entitled to hold his possession against subsequent purchasers and the principle established by

other cases that the right of puisne mortgagees who have been excluded from suits on prior mortgages is just what it would have been if they had

been included, i.e., to redeem the prior mortgage and then either to proceed to sale for the amount due on both mortgages or if the property has

already been sold in their own suit to hold it unless the purchaser in the prior mortgagee''s suit, if he is the earlier purchaser and wants to keep his

purchase, pays off both mortgages. In Chinnu Pillai v. Venkatasamy Chettiar ILR (1915) 40 Mad. 77 : 30 M.L.J. 347 another Bench consisting of

Coutts Trotter and Srinivasa Aiyangar, JJ., dissented from Venkatagiri v. Sadagopachariar (1911) 22 M.L.J. 129 and considered that the Full

Bench decision must be taken to have disapproved of Venkatanarasammah v. Ramiah ILR (1879) 2 Mad. 108, Muhammad Usan Row than v.

Abdulla ILR (1900) 24 M. 1714 : 10 M.L.J. 347 and Akatti Moidin Kutty v. Chirayil Ambu ILR (1902) 26 M. 486 and that these decisions must

not be followed and laid down seven rules to determine the rights of two simple mortgagees suing separately each on his own mortgage. The

remarks at pages 86 and 87 of Justice Srinivasa Aiyangar''s judgment are those relied on by the Lower Courts for their decision. I do not propose

to enter, more than is necessary to decide this case, into the general aspects of this controversy about the right of puisne mortgagees who have not

been impleaded in the prior mortgagee''s suit to bring suits for sale subject to prior encumbrances.

In Mulla Vittil Seethi Vs. Korambath Paruthooli Achuthan Nair and Others, and Chinnu Pillai v. venkatasamy Chettiar ILR (1915) 40 Mad. 77 :

30 M.L.J. 347 the contest was between a mortgagee on one side and a purchaser on a prior mortgage on the other. In Mulla Vittil Seethi Vs.

Korambath Paruthooli Achuthan Nair and Others, the purchaser on a prior simple mortgage sued a subsequent usufructuary mortgagee for

possession on default of the latter redeeming the prior mortgage. The opinion of the Full Bench was that the usufructuary mortgagee could not be

turned out of possession by a purchaser in a suit, to which he was not a party. The language of the reasoning and, of the four propositions

established was quite general and not limited to the facts of the case.

In Chinnu Pillai v. Venkaiasamy Cheltiar ILR (1915) 40 Mad. 77 : 30 M.L.J. 347 a third simple mortgagee sued the purchaser in a suit on a

second simple mortgage who had paid off a first simple mortgage, for sale. The actual decree of the Lower Courts which was confirmed by the

High Court was for sale free of all encumbrances, unless the defendant (purchaser) redeemed the plaintiff (2nd mortgagee). But the discussion and

opinions were not limited to the facts and in fact the judgment of Srinivasa Aiyangar, J., is mostly devoted to a criticism of the observations in

Venkatagiri v. Sadagopachariar (1911) 22 M.L.J. 129 and the cases relied on in it. That case Venkatagiri v. Sadagopachariar (1911) 22 M.L.J.

129 however was not between mortgagees or between a mortgagee and a purchaser but like the present case a claim for undisturbed possession

by an earlier first mortgagee-purchaser who had got possession against a later second mortgagee-purchaser. It was held that the plaintiff as earlier

purchaser who had been put into possession could not be disturbed by the later second mortgagee-purchaser whose only right was to redeem the

prior mortgage and then to sell the property for the amount of both first and second mortgages. Though the language employed in these three

decisions and the criticism of the earlier by the later was perhaps unavoidably more general than the facts of each case necessarily demanded, each

case is authority only for what it actually decides. As Sadasiva Aiyar, J., said in Pingali Venkataramana Reddi by his authorised agent Brahmanda

Narasimha Rau Vs. Kotigari M. Rangiah Chetti and Others, :

They (the Vakils) naturally took full advantage of the general and broad expressions in favour of their respective contentions, found in the numerous

cases quoted by them on the legal questions involved. Even learned Judges (if I may say so with respect) have been naturally unable to lay down

the rules of law governing these questions in judgments pronounced by them in particular cases with all the necessary qualifications and limitations

which would have to be applied to those rules if additional facts and circumstances of a special nature besides those appearing in the particular

cases in which the decisions were given were involved therein.

The present case is exactly similar in principle to Venkatanarasammah v. Ramiah ILR (1879) 2 M. 108, Muhammad Usan Roivthan v. Abdulla

ILR (1900) 24 M. 171 : 10 M.L.J. 347 Akatti Moidin Kutty v. Chirayil Ambu ILR (1902) 26 M. 486, Kutti Chettiar v. Subramania Chettiar ILR

(1909) 32 M. 485 : 19 M.L.J. 728 and Venkatagiri v. Sadagopachariar (1911) 22 M.L.J. 129. In all these cases the contest was for possession

between rival purchasers of the mortgaged property in two successive mortgage suits from each of which the other mortgagee was excluded. In all

of them the earlier purchaser was held entitled to the property whether he purchased in the prior mortgagee''s or puisne mortgagee''s suit. In

Venkatanarasammah v. Ramiah ILR (1879) 2 M. 108 and Muhammad Usan Rowthan v. Abdulla ILR (1900) 24 M. 171 : 10 M.L.J. 347 Kutli

Chettiar v. Subramania Chettiar ILR (1909) 32 M. 485 : 19 M.L.J. 728 and Venkatagiri v. Sadagopachariar (1911) 22 M.L.J. 129, the purchase

in the prior mortgagee''s suit was earlier. In Akatti Moidin Kutty v. Chirayil Ambu ILR (1902) 26 M. 486 the purchase in the puisne mortgagee''s

suit was earlier. In Muhammad Usan Row than v. Abdulla ILR (1900) 24 M. 171 : 10 M.L.J. 347 and Venkatagiri v. Sadagopachariar (1911) 22

M.L.J. 129 though the earlier mortgagee-purchaser had been nominally impleaded in the suit in the later mortgage, the purchase in the latter suit

was subject to the rights of the prior mortgages which were not determined in that suit and hence the contest between the purchasers in the third

suit. In the majority of cases even in the third suit the rights after purchase -on the footing of the rival mortgages were not determined but the

question determined was confined to who had the better title by purchase. Only in one case, Muhammad Usan Rowthan v. Abdulla ILR (1900) 24

M. 171 : 10 M.L.J. 347, was it held that though the earlier purchaser had the better title, he could hold the property only on default of the later

purchaser redeeming the earlier mortgage. In the other cases it was found that the form of the suit which was in ejectment precluded the real

dispute between the parties being determined, i.e., as to the order of mutual redemption of the mortgages and the consequence of default. The

present is another instance in which though the suit as originally framed might have been used to determine the rights of the parties on their several

mortgages, the form has been deliberately so limited by the plaintiff as to make it impossible to decide anything beyond the question whether the

plaintiff is entitled to unconditional possession.

Having regard to the question before the Full Bench and the language employed by the learned Judges with regard to the above decisions, I am

unable to agree with the opinion expressed in Chinnu Pillai v. Venkatasamy Chettiar ILR (1915) 40 M. 77 : 30 M.L.J. 347 that

Venkatanarasammah v. Ramiah ILR (1879) 2 M. 108 and Muhammad Usan Rowthan v. Abdulla ILR (1900) 24 M. 171 : 10 M.L.J. 347 and

similar cases were disapproved by the Full Bench and ought not to be followed. In fact the Full Bench judgment at pages 230, 231 expressly

refers to and approves of the principle of Venkatanarasammah v. Ramiah ILR (1879) 2 M. 108 that the mortgagee who became first entitled to

possession was awarded it against the other. Similarly at page 233 the judgment refers with approval to Muhammad Usan Row than v. Abdulla

ILR (1900) 24 M. 171 : 10 M.L.J. 347 pointing out that the first mortgagee being the first purchaser in possession could not be turned out in

execution by the second mortgagee who had merely bought subject to the rights of the first purchaser. Referring to Shepherd, J.''s judgment in that

case the Full Bench say that "" the observation that the right of redemption and no other was all that remained to the second mortgagee in the

circumstances of the case was perfectly right"" and that no general proposition to that effect was laid down. The learned Judges of the Full Bench

could not have forgotten that the question referred to them was not which of two rival purchasers under simple mortgage decrees was entitled to

possession but whether a puisne mortgagee in possession under a usufructuary mortgage could be turned out of possession or be compelled to

redeem a purchaser in a simple first mortgagee''s suit to which he was not a party. The principle that of two purchasers in successive mortgage

suits, both mortgages being simple, the earlier purchaser is the one entitled to possession was therefore not only not disapproved but expressly

approved by the Full Bench.

In this view I am not called upon to enter into any lengthy discussion whether and in what circumstances a puisne mortgagee who has not been

impleaded in a prior mortgagee''s decree which has resulted in the sale of the property may maintain a suit for sale subject to the prior mortgage as

if it '' had not been sued upon. That is not the question in this case. But the discussion in Venkatagiri v. Sadagopachariar (1911) 22 M.L.J. 129

and Chinnu Pillai v. Venkatasamy Chettiar ILR (1915) 40 M. 77 : 30 M.L.J. 347 reveals a difference of opinion on the effect of the Full Bench

decision in this question. The former case favours the view that such a suit by the puisne mortgagee is possible only till the first mortgagee lias

obtained his own decree for sale. The only result of the puisne mortgagee not being impleaded in the prior mortgagee''s suit being to put him in the

same position as he would have been if so impleaded, i.e., to give him an opportunity to redeem the prior mortgage. But the latter case would

appear to take the view that in such circumstances the puisne mortgagee has not merely the right to redeem but also the right to sell subject to the

prior mortgage. This view is based on the principle that as against the puisne mortgagee the prior mortgagee''s suit being an improperly constituted

suit has no legal effect whatever and may be treated as non-existent. If so, the purchaser in the first mortgagee''s suit got no title whatever against

the puisne mortgagee and the only course open to the first mortgagee is to sue again. That this is not necessary, and that the purchase is good at

least to the extent of enabling the purchaser to redeem the puisne mortgagee in the character of the ultimate owner of the equity of redemption is

stated at page 86 where it is said that

If he (2nd defendant in the case who ""was the purchaser in the prior mortgagee''s suit) wants to keep the property as purchaser he can only do so

by redeeming the plaintiffs.

The same result follows from the 7th proposition (page 92) where the purchaser in the first mortgagee''s suit is described as the ultimate owner

of the equity of redemption. The main thesis is however maintained at pages 86 and 87 that the later purchaser in the second mortgagee''s suit is

entitled to possession of the property from the previous purchaser in the first mortgagee''s suit for the reason that the latter suit was not properly

constituted whereas the former suit was. But what about the rights of the earlier purchaser as first mortgagee? The answer is that in the second

mortgagee''s later suit for sale he may, if he is unwilling to redeem the second mortgage, get the balance of the sale proceeds after satisfying the

second mortgage. That is to say, he becomes postponed to the second mortgagee who thus gets the advantage of becoming first mortgagee as a

result of the improperly constituted suit brought by the original first mortgagee. It is difficult to see why the first mortgagee''s suit which is not to

affect the second mortgagee in any way should have the result of conferring a substantial advantage on him. And it is equally difficult to understand

how if the sale in the first mortgagee''s suit can, notwithstanding its improper constitution, convey to the purchaser the equity of redemption subject

to the second mortgage and if the purchaser at that sale may still as plaintiff bring a suit as first mortgagee, impleading of course the purchaser in the

second mortgagee''s suit, he cannot successfully defend the possession already obtained in exercise of that mortgage right. Starting from the

principle that the first mortgagee''s suit being improperly constituted should have no legal effect whatever against the second mortgagee, the result is

arrived at somewhat inconsistently that while on the one hand the purchaser becomes the ultimate owner of the equity of redemption who is as such

entitled to redeem the second mortgage, on the other he retains the character of the first mortgagee sufficiently to enable him to sue again on that

mortgage but not sufficiently to retain his priority in the sale proceeds in case of a sale by the second mortgagee or to keep the possession which he

has already got against the purchaser in that sale.

I am not satisfied that this is the result of the Full Bench case, nor am I satisfied that the cases beginning with Venkata-narasammah v. Ramiah

ILR (1879) 2 M. 108 are overruled thereby. If they are to be followed the suit must be dismissed.

The questions involved in contests between rival purchasers in successive mortgage suits in which the other mortgagees were excluded were

again elaborately considered by the Full Bench. of the Allahabad High Court in Ram Sanehi Lal and Another Vs. Janki Prasad and Others . There

were two simple mortgages of 1911 and 1912. The second mortgagee sued the mortgagor first in March, 1922, without joining the first mortgagee

and then the first mortgagee sued the mortgagor in August 23 without joining the second. One J.P. purchased the property first in January, 1925, in

the second mortgagee''s suit but did not get actual possession. Then the first mortgagee purchased the property in his own suit in November, 1925

and got possession. J.P. sued the first mortgagee-purchaser for possession. On a reference to a Full Bench* four out of five Judges held:

If the purchaser in the first mortgagee''s suit is suing as plaintiff-

A. (a) he can sue again for money if his suit is not barred.

(b) he cannot sue for money if it is barred.

B. (a) If he was the earlier purchaser he can redeem the second mortgage and get possession even if a suit on the prior mortgage is barred.

(b) If he was the later purchaser he cannot even redeem.

If the purchaser in the second mortgagee''s suit is suing as plaintiff-

(a) if the plaintiff was the earlier purchaser he must redeem the prior mortgage and the defendant cannot compel the plaintiff to be redeemed.

(b) if the plaintiff was the later purchaser he must first redeem the prior mortgage but the defendant can then compel the plaintiff to be redeemed in

respect of the second mortgage.

It will be observed that according to this view the only case in which the first mortgagee-purchaser will be without remedy either to sue again

for money or to compel the second mortgagee to redeem him is when a second suit for money has become barred and at the same time as

purchaser he is later than the second mortgagee and not having possession is compelled to sue for it. In all other cases, the first mortgagee may

have one or other of three remedies: (1) either a second suit for money, or (2) recovery of possession from the later purchaser, or (3) retention of

possession as against even an earlier purchaser till he is redeemed. The other learned Judge gave his opinion separately but except on two points,

viz., as to lis pendens and as to the right of the second mortgagee to sue again for sale subject to the first mortgage, he concurred with his

colleagues. He agreed that the auction purchaser in execution of a prior mortgagee''s decree without impleading the subsequent mortgagee acquires

the right of the mortgagor including the right of possession. He also agreed that it is the first purchaser who gets the property without regard to the

priority of the mortgage in enforcement of which the property is sold. Thus all the five Judges concurred in the principle of the earlier Madras

decisions that the title to the property beltings to the earlier purchaser though the suit in which that purchase took place was improperly constituted

in the sense that the subsequent mortgagee was not therein impleaded. The difference of opinion was only on the question whether the excluded

second mortgagee is affected by the earlier proceedings to the extent that he is thereafter bound to redeem the earlier mortgage and can no longer

sue for sale subject to the earlier mortgage. The majority in Allahabad approve the view taken in Venkatagiri v. Sadagopachariar (1911) 22

M.L.J. 129 and Venkataramana Iyer v. Gompertz ILR (1908) 31 M. 425 : 18 M.L.J. 298 on this matter while Mukerjee, J., took the view

favoured in Chinnu Pillai v. Venkatasamy Chettiar ILR (1915) 40 M. 77 : 30 M.L.J. 347.

Quite apart from the title derived from the sale the right of the first mortgagee-purchaser to use his mortgage as a shield has recently been

upheld by the Judicial Committee in AIR 1922 11 (Privy Council) , and by this Court in Venkataramana Reddi v. Rangiah Chetty (1921). In the

former case there were two simple mortgages in 1874 and 1875 to K.R. and a third mortgage by conditional sale in 1883 to G. Section In 1886

K. R. brought a suit on the first two mortgages without making G. Section a party and bought the property himself. After K.R.''s death Sukhi, his

widow, gave the property to J.R. and N.R. who in 1902 executed a fourth mortgage to her for securing an annuity. In 1909 G. Section sued J.R.

and N.R. on his mortgage without joining Sukhi and got a decree for foreclosure on payment to them of the mortgages of 1874 and 1875. In 1914

Sukhi sued G.S., K.R. and N.R. on the mortgage of 1902. From the above dates and facts it is seen that Sukhi, the plaintiff, occupied the position

of fourth mortgagee. But her mortgagors were representatives in interest of K.R. the 1st and 2nd mortgagee-purchaser in the suit of 1886 in which

the 3rd mortgagee was not a party. Her security therefore included the right of K.R. by that purchase which included the right of the 1st and 2nd

mortgagees. The defendant G.S. was the 3rdmortgagee who had foreclosed J.R. and N.R. as ultimate owner of the equity of redemption but

without impleading the 4th mortgagee plaintiff.

The plaintiff claimed as mortgagee from J.R. and N.R. the security of their rights to the first and second mortgages. Though G. Section had in

his own suit paid this amount and it had been taken away by J.R. and N.R. the Privy Council held that that payment could not bind the plaintiff who

was not impleaded. It was, therefore, ordered that G. Section should, in the first instance, pay the amount of the first and second mortgages to

Sukhi, that in case he did so, the plaintiff should pay to G. Section the amount of his third mortgage of 1883 and if she did so she could have the

usual mortgage decree for the entire sum of all the mortgages including her own. As to the principle on which the payment of the first and second

mortgages which were 40 years old at the time of the suit was ordered the Privy Council said that an owner of a property who is in the rights of a

first mortgagee and of the original mortgagor as acquired at a sale under the first mortgage is entitled at the suit of a subsequent mortgagee who is

not bound by the sale or the decree on which it proceeded to set up the first mortgage as a shield. Applied to this case it shows that the defendant

the first mortgagee-purchaser is entitled to retain his possession till he is paid off the amount of that mortgage and is not liable according to the

observations in Chinnu Pillai v. Venkatasamy Chettiar ILR (1915) 40 M. 77 : 30 M.L.J. 347 to be turned out of possession on the ground that the

suit on the first mortgage was improperly constituted and to be relegated to a fresh suit long ago barred by limitation. The same view as to using a

mortgage as a shield was taken in Pingali Venkataramana Reddi by his authorised agent Brahmanda Narasimha Rau Vs. Kotigari M. Rangiah

Chetti and Others, .

The only difference between the Privy Council case and the present is that there the purchase on the first two mortgages was before the suit on

the third mortgage whereas in the present case the defendant''s purchase was after execution had begun on the decree on the second mortgage. It

was therefore argued on the strength of some remarks in Chinnu Pillai v. Venkatasamy Chettiar ILR (1915) 40 M. 77 : 30 M.L.J. 347 that the

Court-sale in the defendant''s suit was vitiated by lis pendens. At p. 87 it is stated that if a first mortgagee who has first obtained a decree without

joining the second mortgagee purchases the property in execution after the second mortgagee has brought his suit on his own mortgage such

purchase would be affected by lis pendens and that such a purchaser would have to give up possession to the later purchaser in the second

mortgagee''s suit. At p. 92 the same idea qf the proceedings in an earlier mortgage suit becoming affected by lis pendens by reason of the institution

of a subsequent mortgage suit is repeated in the 5th and 7th propositions. The 7th proposition contains a repetition of the statement in p. 87 and

the 5th proposition is the converse case of the purchaser in a second mortgagee''s suit being affected by lis pendens by reason of a subsequent suit

by the first mortgagor making the second mortgagee and mortgagor parties. I confess to great difficulty in correctly describing the ground of these

remarks (whether they are right or not) to be lis pendens. With the greatest respect, I understand by lis pendens the rule by which by reason of a

suit being pending about the rights to some property, subsequent dealings by the parties with that property so as to prejudicially afreet the

determination of those rights in that suit are invalidated. The proceedings in earlier instituted suits cannot be affected by lis pendens by suits

subsequently instituted. If earlier proceedings are affected or rendered ineffective by subsequent proceedings the reason must be not lis pendens

but something else. Not only so, but I find difficulty in understanding how a mortgage suit brought by a first mortgagee can be affected by lis

pendens because some one else who does not claim from him, i.e., another mortgagee, has already sued to enforce his own rights. Both have rights

against the same property not derived from each other but from the same owner. In my view the opinion expressed by Mukerjee, J. in Ram Sanehi

Lal and Another Vs. Janki Prasad and Others on the subject of lis pendens in mortgage suits is correct. It is that the rule only applies to transfers

by the plaintiff or defendant of their respective interests after the suit including transfers by Court-sale in money decrees against either party. But it

does not apply to previously existing transfers (including mortgages) or legal proceedings to enforce such transfers by those entitled. On principle

the sale in pursuance of a mortgage decree, the mortgage having been executed before the institution of the suit is not affected by the doctrine of lis

pendens. (Cf. per Mitra, J. in Har Pershad Lal v. Dalmardan Singh ILR (1905) 32 Cal. 891, Venkatarama Aiyar v. Rangiyan Chetty (1923) 46

M.L.J. 258 and Abdul Muhammad Rozther v. Seethalakshmi Ammal (1930) 33 L.W. 109. No other authority has been adduced for invalidating

the defendant''s purchase on the ground of lis pendens.

For the above reasons the decrees of the Lower Courts are reversed and the suit dismissed with costs throughout.

Waller, J.

I agree and have nothing to add. We have been asked to reconsider the order as to costs on the ground that the plaintiff and the Courts below

were right in relying on the decision in Chinnu Pillai v. Venkatasamy Chettiar ILR (1915) 40 M. 77 : 30 M.L.J. 347 We see no reason to do so.

The trouble was started by the plaintiff himself in the first Court. He has in this Court been given every opportunity of settling, but has not taken

advantage of it. We are asked further to say that, in our view, a further suit will not be barred by Order 2, Rule 2 of the Code of Civil Procedure.

On that point, we decline to express any opinion.